5. Remedies

5. Remedies 

In water seepage litigation, the court generally awards two primary types of remedies: injunctions to stop the physical nuisance and damages to compensate for the losses sustained. 

1. Injunctions 

Injunctions are equitable remedies granted when the court is satisfied that seepage originated from the defendant’s premises and is likely to continue or resurface. 

(i) Mandatory injunctions 

A mandatory injunction requires the defendant to take positive steps to stop the seepage if the seepage is continuing. For example, the court may order the defendant to carry out all necessary rectification, repair or remedial works to the source of the seepage, such as defective bathroom waterproofing, drainage pipes, external walls or a roof. 

The order may also require the defendant to make the relevant area watertight. In appropriate cases, the court may require the defendant to obtain a certificate of satisfaction from an independent Authorised Person, building surveyor or engineer that the remedial works have successfully stopped the nuisance. 

(ii) Prohibitory injunctions 

A prohibitory injunction restrains the defendant from causing, allowing or permitting further water seepage into the plaintiff’s premises. Even if the seepage has temporarily stopped or been “rectified”, a permanent prohibitory injunction may still be justified if there is a real risk that the breach will recur or if the defendant's conduct shows he would otherwise continue the breach. This type of order is intended to prevent the nuisance from continuing or happening again. 

2. Damages 

Damages are monetary compensation for losses caused by the seepage. They are usually divided into special damages (i.e. specific, quantifiable monetary losses) and general damages (i.e. compensation for non-monetary harm like distress). 

(i) Special damages 

• Costs of repair and reinstatement: The plaintiff may recover the actual or reasonably estimated cost of repairing and reinstating physical damage to the property, including damage to ceilings, walls, fixtures, and fittings. This may cover works such as re-plastering, repainting, electrical rewiring, and applying waterproofing paint. The recoverable costs may also include reasonable aesthetic or matching works; for example, where a luxury flat is affected, it may be appropriate to replace all tiles in a particular area to maintain consistency, rather than replacing only the damaged tiles. Ancillary costs, such as debris removal, disposal of construction waste, cleaning, and protective measures taken during the works, such as covering furniture, may also be recoverable. 
• Loss of rental income: If a unit becomes uninhabitable or its market value is reduced, the owner can claim the difference in rent. 
• Alternative accommodation: If a property becomes unsuitable for occupation while repair works are carried out, the cost of staying in a hotel or serviced apartment may be recoverable. 
• Surveyor and investigative fees: Costs incurred for pre-action professional reports to identify the source of the leak are generally allowed. 
• Agent fees: Costs incurred for estate agents to find new tenants after a seepage-related termination may be recoverable. 
• Damaged chattels: Compensation for furniture or household items, such as a salt-water-damaged mattress, may also be recoverable. 

Expert evidence is almost always required to determine the amount of repair and reinstatement costs. However, while formal expert reports are ideal, the court will accept genuine quotations and receipts as proof of the reasonableness of the costs. 

(ii) General damages 

Unlike special damages, which cover quantifiable financial losses like repair costs, general damages are awarded for the interference with the plaintiff’s comfortable and convenient enjoyment of his premises. These are conventional sums awarded for distress, discomfort, and inconvenience caused by the seepage.  

The assessment typically considers the following factors: 

• Duration of the nuisance: The length of time the plaintiff has endured the seepage is a primary factor. 
• Severity and extent of damage: This includes the physical size of the affected area, whether water is actively dripping (necessitating the use of buckets), and if there are risks like short circuits or falling concrete. 
• The defendant’s conduct: A lack of response or an uncooperative attitude can aggravate the plaintiff's distress and lead to a higher award. 
• Occupancy status: Residents who personally experience the daily discomfort of a damp home are typically awarded more than non-occupant landlords. 

If a plaintiff suffers personal injury as a direct result of water seepage, such as by slipping on a wet floor or developing health conditions caused by dampness, the plaintiff is entitled to claim personal injury damages in addition to property-related losses. For information about what kind of damages can be claimed, please refer to “How much could my claim be worth?”.