b. Negligence

b. Negligence 

The tort of negligence is one of the primary causes of action, frequently pleaded alongside private nuisance and breach of the Deed of Mutual Covenant (“DMC”). While it is a distinct legal ground, courts emphasise that in seepage cases, the law of negligence and the law of nuisance substantially overlap and often “stand and fall” together. 

Elements of negligence in seepage cases 

To succeed in a claim of negligence, a plaintiff must establish that the defendant owed a duty of care, that there was a breach of that duty, and that this breach caused damage that was reasonably foreseeable. 

(i) Duty of care 

It is a clearly established principle that an owner or occupier of a multi-storey building owes a duty of care to his neighbours to maintain his premises and its installations (such as pipes and waterproofing) in a proper state of repair to avoid causing harm. 

There is a line of authority recently that discusses the issue of "measured duty of care". Such duty of care is determined by what is fair, just and reasonable as between two neighbours, having regard to all the circumstances, including the extent of the foreseeable risk, the available preventive measures, the cost of such measures and the resources of both parties. 

(ii) Breach of duty 

The defendant is required only to do what is fair, just, and reasonable. A breach occurs when the defendant fails to act as a reasonable person would in the circumstances. 

Courts have identified several specific acts that constitute negligence in this context: 

• Failure to maintain: This involves causing or permitting water facilities to fall into disrepair, such as allowing waterproofing membranes to deteriorate or pipes to burst. 
• Unauthorised alterations: Carrying out renovation or plumbing works (like re-routing pipes or raising floor slabs) without proper planning, thereby increasing the risk of leaks. 
• Blocking access: In some circumstances, failing to allow a developer or manager access to private parts to repair a common membrane can be viewed as negligent. 
• Inordinate delay: Allowing a leak to persist for months or years without taking concrete action after receiving complaints. 
• Failure to supervise contractors: Engaging a contractor but failing to exercise adequate supervision over their work or failing to ensure they identify the true source of the leak. 
• Ineffective repairs: Carrying out only the “absolute minimum” to temporarily satisfy government investigators without an overall plan to resolve the underlying problem. 
• Failure to abate: Once the defendant is made aware of a seepage problem that could reasonably be identified as originating from his premises, he has a duty to investigate, locate, and repair the problem in a prompt and reasonable manner. 

For liability to attach in negligence, the defendant must generally have actual or constructive knowledge that the seepage originated from his premises. 

• Actual knowledge: The defendant is specifically informed of the seepage source, such as through complaints from neighbours, management offices, or government bodies like the Joint Office for Investigation of Water Seepage Complaints. 
• Constructive knowledge: This is knowledge the defendant should have had through normal and reasonable diligence. For example, if a defect is visually obvious or recurring for years, a reasonable owner is expected to investigate the cause. 

(iii) Causation 

The plaintiff bears the burden of proving, on the balance of probabilities, that the defendant’s premises is the effective cause of the damage. Liability cannot be established without first identifying the specific source of the water seepage. 

If the defendant’s premises are proved to be a source of seepage, he may be held liable even if there are other concurrent leakage paths (e.g. external walls). 

For more information, please refer to “Burden of proof”. 

(iv) Remoteness 

The damage suffered by the plaintiff must be of a reasonably foreseeable type, such as physical damage to the building fabric or personal property. 

(v) Damage 

The plaintiff must prove actual loss or an actionable interference with the use and enjoyment of the premises caused by the seepage. Recoverable loss may include: 

• Physical damage: Costs for reinstatement and repair of the building fabric and damaged chattels. 
• Rental loss/accommodation costs: Loss of rental income, diminution in rental value, or the reasonable cost of alternative accommodation. 

• Discomfort, inconvenience, and distress.