Cheung Chi Ying and Anothe v. Kwok Wang Tang and Another
Read the full judgment text of DCCJ 1583/2013 on BabelCite. This District Court judgment was delivered on 10 July 2020.
1. This is a case of dispute between two neighbours, the 1 st and the 2 nd plaintiffs (P1 and P2 respectively) being wife and husband on the one hand, and the 1 st and the 2 nd defendants (D1 and D2 respectively) being brother and sister on the other hand. The case concerns waste water leakage, allegedly from the defendants’ premises to those of the plaintiffs.
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DCCJ 1583/2013 [2020] HKDC 520 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1583 OF 2013 ____________
____________ Before: His Honour Judge Edmond Lee in Court Dates of Hearing: 7, 10 to 13 July, 10 to 11 October and 1 November 2017 Date of Judgment: 10 July 2020 _______________ JUDGMENT ________________ BACKGROUND 1.This is a case of dispute between two neighbours, the 1st and the 2nd plaintiffs (P1 and P2 respectively) being wife and husband on the one hand, and the 1st and the 2nd defendants (D1 and D2 respectively) being brother and sister on the other hand. The case concerns waste water leakage, allegedly from the defendants’ premises to those of the plaintiffs. 2.Since 1988, P1 has become the registered owner of Shop G on the Ground Floor (“Shop G”) with Storage G on Cockloft (“Cockloft”) of On Shun Building (“Building”), Nos 31-51 Chik Shun Street, Tai Wai, New Territories, Hong Kong. At the back of Shop G, there is a yard (“Yard”) and a service lane (“Service Lane”). P1 and P2 are and were at the material times carrying on a business at Shop G (with the Cockloft for storage) selling cooked chickens[1]. 3.Since 2001, the parents of D1 and D2, Kwok Chi Fuk (“Old Mr Kwok”) and Wong Tak Ying (“Mrs Kwok”), have become the registered owner of Shop E on the Ground Floor with Yard E and Storage E on Cockloft of the Building, where the Kwok family runs a decoration business under the name of Pak Kar Lee Design Dec Eng Co Limited (“Pak Kar Lee”). D1 is a director of Pak Kar Lee. 4.Since November 2010, Pak Kar Lee has become the registered owner of a residential flat of the Building, namely, Flat F on the 1st Floor of Block A of the Building (“Flat 1F”). 5.Since April 2011, D1 and D2 have become the registered owners of the adjoining flat of Flat 1F, that is, Flat E on the 1st Floor of Block A of the Building (“Flat 1E”)[2]. 6.Flat 1E owned by D1 and D2 on the 1st Floor is immediately above Shop G owned by P1 on the Ground Floor. 7.Both Flat 1E and Flat 1F were at the material times used or intended to be used by the defendants’ family as residence. After acquiring Flat 1E in April 2011, the defendants’ family started carrying out renovation work in both Flat 1E and Flat 1F. 8.This case is about a total of 8 incidents, which took place between 2 August 2011 and 6 April 2013, where the plaintiffs allege waste water leakage from Flat 1E, the premises owned by the defendants, into the Yard and the Service Lane as well as the Cockloft of Shop G (the “8 Incidents”). 9.The 8 Incidents can be divided into 2 categories:-
10.The plaintiffs allege breach by the defendants of the Deed of Mutual Covenant and Management Agreement (“DMC”) for making structural alternation to Flat 1E and its exterior and affecting the rights of other owners[3]. 11.The plaintiffs also allege contravention of the Building Management Ordinance, Cap 344 (“BMO”) by the defendants for failing to maintain good and proper repair of Flat 1E[4]. 12.The plaintiffs sue the defendants for tort of negligence and nuisance for all the 8 Incidents and in addition, breach of DMC as well as BMO for the 5th to the 8th Incidents. The plaintiffs claim against the defendants for an injunction to restrain the defendants from continuing the 8 Incidents, a mandatory injunction requiring the defendants to facilitate an inspection of Flat 1E and to carry out the necessary repair, and damages with interests and costs. 13.The defendants contest these proceedings and all the plaintiffs’ claims on the basis that the blockage of the sewage pipe in Shop G was the root problem of all the incidents, and that the plaintiffs voluntarily accepted the risk of damage by failing to replace the sewage pipe in Shop G. The defendants deny any negligence or any obligation on their part to carry out any repair. ISSUES 14.Both parties are in agreement that the issues for this case are:-
THE PLAINTIFFS’ CASE 15.At the material times, P2 was the secretary of the Incorporated Owners (“IO”) of the Building and he on behalf of the IO had made various complaints against the defendants or their family for unauthorized structures erected in Flat(s) 1E and/or 1F. 16.It is the plaintiffs’ case that the defendants, once having purchased Flat 1E, had removed the partition wall between Flat 1E and Flat 1F and then carried out certain unauthorized building work therein. As a result, the Building Department issued a letter dated 26 July 2011[5] ordering the defendants to demolish those unauthorized building work[6] and reinstate the parts of the Building as affected. 17.Thereafter, according to the plaintiffs, the defendants caused the erection of a drainage pipe on the external wall connecting to Flat 1E and Flat 1F. The said drainage pipe was built on the external wall at the top of the Yard of the plaintiffs’ Shop G. The Building Department subsequently issued two orders both dated 21 February 2012[7] against the respective owners of Flat 1E and Flat 1F both occupied by the defendants requiring them to demolish the said unauthorized building work[8] and to reinstate the part of the Building in accordance with the plans approved by the Building Authority. 18.The crux of the plaintiffs’ case is that the said unauthorized building work was the origin of the waste water leakage problem leading to the 8 Incidents in this case. 19.The 8 Incidents, according to the plaintiffs, can be briefly summarized as follows:-
20.The plaintiffs’ case is that the 8 Incidents were either caused by intentional acts by the defendants, or by negligence of the defendants who failed to properly maintain their flats and/or prevent the happening of those incidents. 21.The plaintiffs claim against the defendants for an injunction to restrain them from continuing the 8 Incidents and a mandatory injunction to facilitate an inspection of Flat 1E and to carry out the necessary repair works to stop the water leakage and pouring of human waste water[9]. 22.The plaintiffs also claim for damages of (a) HK$500,000 for injury of discomfort and (b) HK$160,000 for permanent rectification work (re-casting of the existing slab) of the Cockloft or HK$202,170 for temporary rectification work (construction of a steel platform at the ceiling) of the Cockloft, with interests and costs[10]. THE DEFENDANTS’ CASE 23.The defendants do not dispute the happening of the 8 Incidents. It is the defence case that the defendants are not responsible for any of them and that the blockage of the Sewer Pipe in the Cockloft of the plaintiffs’ Shop G was the root of the problem leading to the 8 Incidents. 24.The defence contends that, according to paragraph 12(b) of the DMC and Schedule 1 of the BMO, a drainage pipe is a common part of the building. If the portion of the Sewer Pipe was blocked within Shop G or the Cockloft and caused backflow of human waste water, that would fall within the definition of the “interior” of the unit and it would therefore be the duty of the owner of Shop G, ie the plaintiffs, to repair the blockage. On the other hand, if the blocked portion of the Sewer Pipe in Shop G belonged to the common area, then the IO should be responsible for the repair. 25.In particular, the defendants allege that the plaintiffs refused to allow the defendants to enter Shop G to unclog the blocked Sewer Pipe inside Shop G, which caused the backflow of human waste water into Flat 1E. Failure to take immediate action would mean that the waste water from the Sewer Pipe of Shop G might spill out to the corridor on the first floor and affect other residents in the Building. Instead, it was the lesser evil for the defendants to redirect the backflow of the waste water into the Service Lane, as opposed to affecting many other residents. WITNESSES AND MATERIALS PRODUCED AT THE TRIAL 26.For the plaintiffs, P1 (PW1), P2 (PW2) and Mr Hui Tak Wai (PW3 who was acting chairman of the IO after DW5 resigned) gave evidence. 27.For the defendants, D1 (DW1), D2 (DW3), Old Mr Kwok (DW6), Mrs Kwok (DW2), Mr Wong Man Pan (DW4 who was chairman of IO) and Mr Wong Man Kai (DW5 who was former chairman of IO) gave evidence. 28.Two experts jointly appointed by the parties, namely, Mr Lee Kwok Chuen (KC) and Mr Simon Cheung Wai Sum (SC), gave evidence in addition to their two joint experts’ reports dated 9 December 2016 and 10 June 2017 respectively prepared for these proceedings. 29.Copies of various documents, photographs and videos were also produced and included in the trial bundle for the purpose of this trial. RELEVANT LEGAL PRINCIPLES 30.The plaintiffs contend that the defendants as the upper floor neighbours of the plaintiffs, owe the plaintiffs a duty of care to keep and maintain their Flat 1E and Flat 1F units in proper repair and condition and prevent harm to people and damage to property on other premises. The plaintiffs also contend that, it is a nuisance if the defendants unduly interfered with the plaintiffs as their neighbours in the comfortable and convenient enjoyment of their land. The defendants do not contend the otherwise. 31.In particular, as far as nuisance is concerned, the plaintiffs rely on Hu Wei Hsin v Ma Hung Wing & ors, DCCJ 273/2011 (unreported, 3 June 2011), where HHJ Lok (as he then was) summarized the relevant principles at paragraph 14 of the judgment as follows:-
32.For nuisance caused by water leakage, the plaintiffs rely on the principle in the Court of Appeal’s decision in 張秀玲及吳炳漢訴鄭禮莊, CACV 268/1998 (unreported, 9 April 1999), that the defendant must be shown to have actual or constructive knowledge that the seepage of water originated from the defendant’s premises in order to be liable, and that “constructive knowledge” means what the defendant should have known with normal and reasonable diligence in the circumstances. 33.It then follows, as the plaintiffs contend and rely on what DDJ Harold Leong (as he then was) said in Yan Wing Fai Rick and Chan Wai Man v Century One Limited, DCCJ 2773/2009 (unreported, 2 February 2011) at paragraph 85 of the judgment:-
34.Nevertheless, the plaintiffs fairly and correctly accept the well-established principles as Recorder Yuen SC in Hui Ling Ling v Sky Field Development Ltd, HCA 35/2007 (unreported, 8 May 2012) reiterated at paragraph 23 of the judgment:-
35.The same or similar principles are also heavily relied upon by the defendants, which was summarized by DDJ Lawrence Ng (as he then was) in Lam Kit Yee v Lam Shuk Lam & Chiang Chi DCCJ 3115/2011 (unreported, 10 March 2017) at paragraph 11 of the judgment:-
36.I also seek guidance from the comprehensive and more recent judgment in Loke Yuen Jean Tak Alice v Wong Kit Ying and Anor [2019] HKCFI 1895; HCA 495/2012 (unreported, 1 August 2019) by Marlene Ng J, at paragraphs 52 to 55:-
37.For expert evidence, the court is not bound by the views and comments in the reports and the testimonies given by the experts, but can and should make its own judgment by considering all the materials available: see Lam Chin Pang and anor v Wan Sui Ying DCCJ 3391/2015 (unreported, 24 September 2018), by MK Liu DJ, at paragraph 25 of the judgment, citing Grand Wayfair Investment Company Limited v Chan Yung Kan CACV 238/2013 (unreported, 26 September 2014). 38.Apparently, there is no dispute between the parties over the law relevant in this case. The disputes are on facts. MY ANALYSIS AND DECISION 39.At the outset, I set out some of my general observations of and comments on various matters relevant in this case. Layout of the premises and pipes in question 40.I start off by describing or repeating the layout of the premises in question for clarity’s sake. 41.The plaintiffs occupied Shop G and the Cockloft for their business. Immediately above Shop G and the Cockloft was Flat 1E owned by the defendants whose family also owned the adjoining Flat 1F. 42.According to the approved plans for the Building, there was a flat roof outside Flat 1E around the exterior walls of Flat 1E[11]. Pursuant to the DMC, the flat roof was common parts of the Building[12]. Abutting one side of Flat 1E was Flat 1F, and there was also the connecting flat roof outside the external walls of Flat 1F[13]. Part of the flat roof was directly above the ceiling of the Cockloft[14]. 43.After the purchase of Flat 1E by the defendants, the original external walls of Flat 1E (or certain parts thereof) were demolished so that the flat roof outside was enclosed and became part of Flat 1E[15]. Similarly, part of the external walls of Flat 1F was also demolished and part of the flat roof area originally outside Flat 1F was also enclosed to become part of Flat 1E[16]. As a result of the alterations, Flat 1E became much bigger and Flat 1F became slightly smaller than before. After the alternations, part of the interior of Flats 1E and 1F was directly above the ceiling of the Cockloft. These alterations were carried out without prior approval from the Buildings Department therefore they were unauthorized structures. The defendants claimed that these alterations were done before they acquired Flat 1E[17]. The defendants also claimed that, as part of the Sewer Pipe on the 1/F was leaking rusty iron pipe, they had replaced it when carrying out renovation at Flats 1E and 1F[18]. 44.The pipe involved in these proceedings was the Sewer Pipe which served flats E and F of all floors of the Building and it was a common part of the Building[19]. Before the alterations, the Sewer Pipe ran outside the external walls of the 1st to the 5th Floors, connected into the flat roof outside Flat 1E, through the ceiling of the Cockloft and turned into the toilet for the disabled located in shop F, and finally, vertically into the manhole and the underground drainage. After the alterations, the Sewer Pipe ran outside the external wall between the 2nd and the 5th Floors (referred to by the experts as Pipe B), passed through the interior of Flat 1F. A raised floor was created inside Flat 1F where it was originally the flat roof area to house some pipes to carry discharge from Flats 1F and 1E (referred to as Pipe A which carried discharge from Flat 1E and Pipe C which carried discharge from Flat 1F[20]). Pipes A, B, and C went through the ceiling of the Cockloft (referred to as Pipes D, E and F in the photographs[21]) and finally into the toilet for the disabled and the manhole. 45.It was alleged by the plaintiffs that because of the unauthorized alterations in pipework done by the defendants, Pipes D, E and F and the ceiling of the Cockloft were affected, therefore causing the 8 Incidents. 46.I pause here to emphasize that, whilst I would bear in mind and consider all the evidence, I would not find against the defence or decide on any of the defence evidence unfavourably for any relevant issues in this case simply because of the fact that there existed unauthorized structures in Flats 1E and/or 1F. It remains on the plaintiffs to prove on the balance of probabilities that the defendants caused either intentionally or negligently or was in any way responsible for the 8 Incidents. CONDITIONS AND NATURE OF THE PIPES 47.There are placed before the court photographs of Pipes D, E and F located inside the Cockloft as well as those of the Sewer Pipe inside the toilet for the disabled. It is plain that Pipes D, E and F at the Cockloft were old, rusty and some of the white paint thereon peeled off[22]. Even worse conditions can be seen for the section of the Sewer Pipe located inside the toilet for the disabled, and there had been some serious leaking as there were obvious marks of rust-coloured liquid on the wall near that part of the Sewer Pipe[23]. On the face of it, the poor condition of those parts of the Sewer Pipe is consistent with the old age of the Building which was erected in 1988. 48.P2 agreed that Old Mr Kwok once suggested to him changing Pipes D, E and F in the Cockloft to plastic ones in about April or May 2011, as some other owners did long ago. Although P2 said he did not sign an acknowledge note (to acknowledge taking the risk and responsibility for not changing the pipes), as some other owners did in 2006[24], he never challenged the defendants’ case that Pipes D, E and F in the Cockloft were made of iron and not plastic and had never been changed. In fact, the plaintiffs never claimed that those pipes had ever been changed or repaired since P1 purchased Shop G with the Cockloft as early as in 1988. It follows that those part of the iron pipes, i.e. Pipes D, E and F inside the Cockloft, had been used continuously for at least 23 years when the 1st Incident took place in 2011. This is no doubt an important feature for a water leakage case like the present one. 49.Not only the age of the pipes in question that matters, but also the nature and usage of the pipes should be taken into consideration. P2 insisted throughout his evidence that Pipes D, E and F in the Cockloft were not part of the Sewer Pipe at all but carried rainwater[25]. P2 also said that he did not sign the acknowledgement note in 2006 because Pipes D, E and F in the Cockloft were rainwater pipes, which I find such reasoning difficult to understand. It appears to me, that the purpose of the acknowledgement note was the shift of responsibility and risk over a common part of the Building (be it sewer pipe or rainwater pipe) from the IO to the signatory owners who chose not to change their relevant sections of the pipe. Whether the particular pipe concerned carried rainwater or waste water mattered little. 50.Surprisingly, despite his insistence that Pipes D, E and F were rainwater pipes, P2 frankly admitted in cross-examination that he did not know how the pipes (not just the Sewer Pipe) were connected in the Building. Most importantly, P2’s evidence that Pipes D, E and F carried rainwater was plainly contrary to the experts’ evidence[26]. I accept the experts’ evidence that Pipes D, E and F were part of the Sewer Pipe. 51.Both experts agreed that Pipe A which carried waste water from Flat 1E connected to Pipe D in the Cockloft; Pipe B carried waste water from Flats E and F of the 2nd to the 5th Floors of the Building connected to Pipe E in the Cockloft; and Pipe C carried waste water from Flat 1F connected to Pipe F in the Cockloft[27]. I accept their evidence in this respect. 52.For the above reasons, the plaintiffs’ initial allegation that the 1st to the 4th Incidents were a result of the defendants’ negligent act of wrongly connecting the Sewer Pipe with Pipes D, E and F in the Cockloft (which P2 claimed to be rainwater pipes) just did not hold water and should be rejected in view of the expert evidence. RELATIONSHIP OF THE PARTIES 53.Since the parties by and large agreed, or at least did not dispute, that the 8 Incidents did take place, the determination of this case, apart from the consideration of the expert evidence, also turns on the credibility of the witnesses. 54.The parties’ relationship, good or bad, is a matter of importance when the court has to assess the credibility of their evidence. 55.The defendants became upper-floor neighbours of the plaintiffs since November 2010 when Pak Kar Lee purchased Flat 1F. As early as in February 2011, complaints were made of installation of pipes and the lengthy period of renovation against certain owners of the 1st Floor in Block A (presumably against Flats 1E and 1F) by the IO and it was resolved that the IO should report the matter to various government departments, including the Buildings Department and the police[28]. 56.In fact, the IO’s complaints made to governmental departments were attributed to P2 because he was secretary for the IO and P2 gave evidence to that effect[29]. It is also noted that, since March 2011, the plaintiffs had made various reports to the police against the defendants or their family about various matters[30]. 57.In particular, on 26 July 2011, an order was issued by the Building Authority against the owner of Flat 1E which was registered in the Land Registry[31]. 58.To say the least, the relationship between the parties was far from harmonious since that early stage back in 2011 even before the occurrence of the 1st Incident. After the 1st Incident happened in August 2011, P2 called upon some reporters and caused the 1st Incident to be published as a story[32]. P2 also reported to a local magazine which sent its reporter to come to an IO meeting and subsequently published an article[33]. P2 frankly said that the relationship between the parties was bad, although, according to him, it only became so after the 1st Incident[34]. No doubt the parties’ relationship went from bad to worse since the happening of the 1st Incident. I am mindful that the sense of grievance, if not hostility, between the parties may taint their evidence or cause them to exaggerate in their evidence. THE IO MINUTES 59.Bearing in mind the parties’ relationship as aforesaid, I remind myself to be cautious when considering the minutes for the IO meetings produced as contemporaneous documents where their contents in some aspects seem to support the plaintiffs’ case[35]. 60.It is not in dispute that P2 has been the secretary for the IO for over 20 years while chairmen of the IO came and went. Not only that P2 was the person solely responsible for drafting and producing all the minutes of the IO meetings, but he also exerted strict control over the affairs of the IO. There was evidence that P2, who was in possession of the IO’s cheque book, on one occasion even refused to sign cheques in relation to certain IO matters. It is obvious, as suggested by the defence, that P2 enjoyed a dominant position within the IO. 61.All the minutes of the IO produced in this trial were prepared or even hand-written by P2, being its secretary. There was once a minute which was solely signed by P2 and, for unknown reason, there recorded that the then chairman Mr Wong Man Kai (DW5) refused to sign on it[36]. I observe that the language used in these minutes was personal and emotional, many exclamations as well as accusations against the defendants peppered the minutes. This is significant, in my view, when assessing the reliability of the contents of these minutes. I therefore do not consider these minutes as independent documents or materials which support the plaintiffs’ version of events. 62.In the IO’s minutes dated 15 March 2012, it was recorded that at the meeting held on 24 February 2012 the attending owners voted (160 vs 17) in favour of looking into the feasibility of instructing a surveyor to ascertain the cause of the blockage[37]. 63.Strangely enough, in the next minutes dated 17 March 2012, which was just two days after the previous minutes, it was recorded that enquiries had been made, that a surveyor would merely serve as a middleman and a civil engineer was needed but it would be very expensive to do so; engaging a surveyor was unnecessary because the defendants “had personally promised to take all responsibilities” (「郭氏家族已經在業主大會親口承認，並承諾會負全責，亦有屋宇署人員在場證實，大家又何須聘用公正行，已可清楚知道發生了什麼事情」)[38]. It begged the question if the defendants had admitted their liability at the meeting on 24 February 2012, why did the attending owners vote in favour of such a motion of engaging a surveyor to look into the matter? Why was there such a sudden change of stance just two days later? 64.According to Mr Hui (PW3), P2 made all the enquiries in relation to engaging a surveyor and it was P2 who prepared all those minutes. Mr Hui also said that no surveyor was ever instructed to deal with the sewage problem since P2 issued the minutes dated 17 March 2012. It further reinforces my impression that P2 had the final say in the IO, despite the previous vote in the IO meeting. This further throws doubt on the reliability of the contents of the IO minutes. 65.In the said IO minutes dated 17 March 2012, it was also recorded that Mrs Kwok offered to donate HK$10,000 to the IO for changing the Sewer Pipe but that offer was described by P2 as a “trap” that would lead to “many bad consequences” for the IO[39]. Mr Hui (PW3) agreed that those paragraphs in the minutes dated 17 March 2012 concerned matters discussed only between P2 and Old Mr Kwok but not discussed by the committee and that it was improper to include those matters in the minutes[40]. 66.Having considered all the above, I decline to place any weight on these IO minutes where the contents appear to support the plaintiffs’ case because of P2’s dominant position in the IO and his obvious lack of objectivity in recording the matters accurately, both adversely affected the reliability of the contents. In particular, I reject the assertion that the defendants had admitted their liability at the IO meeting on 24 February 2012 as recorded in the minute. 67.On the other hand, because of the personal animosity between P2 and the defendants, I tend to believe the contents of the IO minutes which were consistent with the defendants’ version, which are more likely to be reliable. Thus I accept, as a matter of fact, that Mrs Kwok did make an offer of donating HK$10,000 to the IO in March 2012 to replace part of the Sewer Pipe from Shop G to the toilet for the disabled with a view to resolving the sewage problem but that was turned down by P2. 68.I accept the defendants’ evidence that they tried to solve the sewage problem but to no avail, P2’s intransigence vis-à-vis the said proposal from the defendants to resolve the sewage problem was unreasonable, and P2’s attitude most likely affected by his personal animosity towards the defendants. THE 1st–4th INCIDENTS: MY FINDINGS 69.I now deal with and decide on the 1st to the 4th Incidents, one after another. 70.Before going into the details of each of these incidents, it must be remembered that the 1st, the 3rd and the 4th Incidents all concerned waste water showering onto the Yard or the Service Lane at the back of Shop G of the plaintiffs. I pause to make an observation here that the Yard or the Service Lane is not owned by the plaintiffs, it is in fact not a common area[41]. The Yard or the Service Lane is not even a part of the Building but a piece of public land. 71.In any event, it seems reasonably clear to me that the basis on which the plaintiffs claimed against the defendants in the 1st, the 3rd and the 4th Incidents was the defendants’ failure “to keep or maintain Flat E in good repair and condition so as to avoid any loss, damage, nuisance or annoyance”[42] (my emphasis)to the plaintiffs in Shop G; further or alternatively, the defendants owing a duty of care to the plaintiffs “not to disturb their enjoyment comfort over Shop G”[43] (my emphasis). It is P2’s evidence that he used to collect raw chickens into Shop G through the back door on the Service Lane but because of the 1st, the 3rd and the 4th Incidents he could not do so at the material times. It is also a matter of common sense that, in view of the close proximity in area, whatever happened at the Yard or the Service Lane, in particular if it was a nuisance or annoyance, the enjoyment or comfort by the plaintiffs over Shop G must have been affected. The 1st Incident 72.On 2 August 2011, the defendants claimed that a blockage in the Pipes D, E and F downstairs in Cockloft were causing serious flooding inside Flat 1F. The plaintiffs did not believe that Flat 1F was flooded and they refused to allow the defendants to conduct any plumbing work in the Cockloft. Water mixed with human waste poured down onto the Service Lane through a hole on the external wall of Flat 1F and the waste water showered onto the Service Lane directly over the back door leading to the Yard. Human waste, wet toilet paper and other objects were splattered across the Service Lane. The situation persisted for 7 days until 8 August 2011. 73.The defendants admitted drilling a hole on the wall of Flat 1F to release the waste water onto the Service Lane. The defence account was that, on 2 August 2011 at about 5:30 pm, water mixed with human waste flowed all over from the toilet of Flat 1F into the flat. D1, believing that the backflow was caused by blockage in Pipes D, E and F downstairs, repeatedly asked P2 to give him access to the Cockloft to deal with the blockage but P2 refused to let D1 and his plumber in. Water flooding into the flat continuously and as a last resort to prevent it from flowing into the rest of the flat as well as the other units on the same floor, D1 drilled a hole on the external wall of Flat 1F, let the waste water flow onto the Service Lane and gave a warning to the plaintiffs and others about that[44]. 74.Back in 2006, that is five years before the 1st Incident, the IO had already proposed to all residential unit owners and shop owners to change the Sewer Pipe, which was made of cast iron and had become rusty, to plastic. Residential unit owners of the 2nd to the 5th Floors elected for the change but the former owners of Flats 1E and 1F as well as the plaintiffs opted out changing the relevant sections of the Sewer Pipe located in their respective flats or shop. Those owners who opted out signed an acknowledgement note to the IO to the effect that they agreed to take responsibility for future maintenance or repair of their relevant sections of the Sewer Pipe located inside their properties. 75.When the defendants carried out renovations in Flats 1E and 1F in about late April 2011, they changed the section of the Sewer Pipe serving their units at Flat 1E and 1F, which was rusty and leaking, to plastic. Old Mr Kwok, father of D1 and D2, came to know that Pipes D, E and F, which were connected in the immediate lower floor at Shop G, were rusty and suggested to P2 that they should also change them to plastic. P2 was only willing to do so if Old Mr Kwok agreed to pay for the work and the latter refused[45]. 76.In simple terms, the defendants did not deny that they caused the 1st Incident but contended what they did was reasonable in the circumstances of the case. The defence described the defendants’ choice of drilling a hole on the external wall of Flat 1F to direct the waste water onto the Service Lane as the “lesser evil”, when compared to allowing the waste water to overflow to other parts of their flat and the other flats on the 1st floor. 77.Regarding the 1st Incident, what essentially I am required to determine now is whether the defendants were acting reasonably under the circumstances.
The 2nd Incident 78.The plaintiffs alleged that on 9 August 2011, Pipe F suddenly burst and water mixed with human waste rained down on the Cockloft, contaminating everything there. The IO was notified and some plastic sheets were used to wrap up Pipe F[50]. 79.The defendants claimed that they noticed that the blockage of their toilet in Flat 1F (ie the 1st Incident) ceased but did not learn about the bursting of Pipe F until the commencement of these proceedings when they noted it from the Statement of Claim[51]. The defendants believed that the blockage within Pipes D, E, and F had gone on for a whole week following the 1st Incident and eventually caused the rusty Pipe F to burst in the 2nd Incident. 80.The plaintiffs, on the other hand, alleged that the defendants intentionally damaged their section of Pipe F from their premises and caused its connecting section on the Cockloft to burst or, did so by negligence. To this the defendants denied. 81.In relation to the 2nd Incident, the plaintiffs’ argument is twofold. The plaintiffs first alleged the defendants intentionally breaking Pipe F, therefore amounting to nuisance; or alternatively, the bursting of Pipe F was the result of the defendants’ negligence by failing to keep the pipes in Flat 1F in good repair. 82.Regarding this 2nd Incident, it is my observation that:-
The 3rd Incident 83.It was undisputed that, on 21 January 2012, two days before the Chinese New Year, water mixed with human waste was discharged into the Service Lane via a pipe running across the external wall of Flat 1E to that of Flat 1F and directly above the back door of Shop G at the Service Lane[54]. 84.On 22 January 2012, officers from various governmental departments discussed with Old Mr Kwok about directing the waste water in a more hygienic fashion. Therefore, Old Mr Kwok installed a vertical pipe to connect the pipe along the wall of Flats 1E and 1F (the “Temporary Pipe”)[55]. As a result, waste water landed on the ground between the back doors of Shop H and Shop G but wet toilet papers and other residue splattered on the ground of the Service Lane[56]. 85.Between 30 January and 2 February 2012, when the defendants and their parents were on holiday out of Hong Kong, they were informed that waste water was showering down in the Service Lane again. On their return on 3 February 2012, they saw the Temporary Pipe had become disconnected with the pipe along the external wall of Flats 1E and 1F[57]. 86.According to the defendants, P1 promised to engage a plumber to deal with the blockage in Pipes D, E and F on 28 January 2012. However, P2 subsequently did not permit the plumber to enter the Cockloft and demanded the plumber to carry out his work from Flat 1F. The defendants eventually let the plumber into Flat 1F with his large machinery and managed to unblock the pipes[58]. The blockage problem was solved at that stage. 87.On 24 February 2012, the IO held a meeting where residents discussed the issue of waste water flowing into the Service Lane. The plaintiffs and the defendants, Old Mr Kwok and Mrs Kwok attended the meeting. 88.For the 3rd Incident, it is undisputed that on 21 January 2012 waste water flowed into the Service Lane, and on the next day, Old Mr Kwok installed a Temporary Pipe but it went disconnected soon and waste water was showering down the Service Lane again. I am now required to determine whether the 3rd Incident amounted to nuisance caused by the defendants and whether there was any negligence on the part of the defendants.
The 4th Incident 89.On 26 February 2012, two days after the IO meeting where residents of the Building discussed the issue of waste water flowing into the Service Lane, waste water was again seen flowing into the Service Lane above the back door of Shop G[73]. The then chairman of the IO, Mr Hui Tak Wai (PW3), entered Flat 1F to inspect. Inside Flat 1F, there was a “cleaning eye” for Pipe C (ie an access opening which allowed observation and clearing of obstruction) and it was observed that waste water could not flow downwards and some sludge-like matters lined the inside of Pipe C[74]. It was clear that there was blockage in Pipe C and most likely in Pipe F. The discharge of waste water into the Service Lane lasted for about 10 days in the 4th Incident. 90.On the following day, D1 posted notices in the Building lobby suggesting that they would install a pipe to re-direct the sewage then flowing into the Service Lane to the sewer pipe of Shop E where Pak Kar Lee carried on their business. According to D1, he hoped that this suggestion would solve the persistent problem[75]. Also, Old Mr Kwok wrote to the Sha Tin District Office on 28 February 2012 to seek help for the sewage problem[76]. 91.On 13 March 2012, Mrs Kwok wrote to the IO to state that she was willing to make a donation of HK$10,000 to the IO for the purpose of changing the Sewer Pipe in the toilet for the disabled and inside the Cockloft so as to solve the sewage problem[77]. What seemed to happen next was that Mrs Kwok’s proposed suggestion and donation was rejected[78]. 92.In late March 2012, Mrs Kwok applied to the Buildings Department to carry out minor work, ie to install a backup pipe to direct the waste water to flow into the sewer pipe of Shop E. The minor work was approved and carried out at the defendants’ cost of HK$28,000[79] and as a result, waste water no longer flowed into the Service Lane. 93.The 4th Incident was a repeat of the previous occasion where waste water was allowed to splash freely into the Service Lane via the pipe above Shop G’s back door. Again, I now have to determine whether the 4th Incident amounted to a nuisance caused by the defendants and whether it was caused by any negligence of the defendants.
The experts’ evidence 94.For the sake of completeness, the expert evidence produced by way of the joint experts’ reports should also be considered when determining whether the 1st to the 4th Incidents were caused by the defendants’ negligence in failing to keep their premises in good repair. In particular, the supplementary joint experts’ report addressed whether the backflow of waste water into Flat 1F was caused by the blockage of Pipes D, E, F in the Cockloft. The two experts, Mr Lee Kwok Chuen (KC) and Mr Simon W S Cheung (SC), inspected Flat 1F and the Cockloft on 25 May 2017, for the preparation of the supplementary joint experts’ report dated 10 June 2017. 95.KC and SC agreed that Pipes A, B and C inside Flat 1F were connected to Pipes D, E and F in the Cockloft respectively and they were all part of the Sewer Pipe. At the time of the inspection, there was no backflow of waste water into Flat 1F. The expert agreed that Pipes D, E, F belonged to the IO and therefore were for IO to maintain[81]. 96.However, the experts could not agree on the essential issue of the cause of the 1st to the 4th Incidents: were the backflow of waste water into Flat 1F caused by the blockage of Pipes D, E, F or caused by the altered (authorized or not) connection of pipes inside Flat 1F? 97.KC was of the opinion that the altered connection of pipes inside Flat 1F was not approved by the Buildings Department hence the fall of the pipes was questionable and would likely cause the blockage of pipes and would cause the backflow of sewage if the pipes were blocked at floor level of the 1st Floor. KC further explained that the insufficient fall of pipes (ie the gradient or angle slop of the pipes to ensure unimpeded flow of discharge) inside Flat 1F – only a 6-inch difference between the raised floor and the original floor level of the flat roof area) combined with the fact that after the unauthorized alterations of Pipes A and C collected a higher volume of discharge from 4 flush toilets meant that the pipes would be more likely to get blocked. However, KC did not carry out any test on the date of inspection to confirm the correctness of his opinion on the insufficient fall of pipes combined with the high volume of sewage discharge as he suspected. KC agreed that the backflow of waste water into Flat 1F could not be caused by blockage of pipes above the 1st Floor and agreed that he could not say with certainty whether the backflow of waste water into Flat 1F was caused by blockage of Pipes D, E, F or at the manhole[82]. 98.SC was of the view that the altered connection of pipes inside Flat 1F, if it caused any blockage at the floor level of the 1st Floor, would merely cause the waste water not to be able to drain but would not cause a backflow of waste water. Under cross-examination, SC stated that the horizontal pipe inside Flat 1F connected to Pipe C was of 50 millimeter diameter and the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrine) Regulations (Cap 123I) required that the fall for such a pipe to be 1:80. SC agreed that the thicker a sewage pipe is, the fall required by the relevant regulation is lower. However, he did not measure the depth of the raised floor inside Flat 1F during the inspection[83]. 99.I have the following observations regarding the expert evidence on the likely cause of the backflow problem in this case:-
100.In the circumstances, in view of the insufficiency and uncertainty of the expert opinion, I am unable to make a finding as to the source of blockage within which section(s) of the Sewer Pipe and it follows, that I am unable to find whose responsibility it was for causing the backflow of waste water in this case. 101.Apart from the expert evidence, I also have the benefit of watching some of the video clips showing what could be seen from the cleaning eye of Pipe C inside Flat 1F. I pause here to say that the materials created after the 1st and the 2nd Incidents are also relevant and may be of assistance because the series of incidents were inter-related and it is likely that they shared the same cause. 102.A clip taken on 21 December 2011 (ie after the date of the 2nd Incident but before that of the 3rd Incident) showed that the horizontal pipe carrying some sewage water when D1 flushed a toilet in his flat and the water flowing unimpeded into Pipe C and down to Pipe F[84]. It is visible from this video that Pipe F was rusty by comparing its grey and rust-coloured patches to the silvery interior of Pipe C. A clip taken on 26 February 2012 (ie the date of the 4th Incident) shows the inside of Pipe C lined with slush, waste water with undissolved pieces of tissue paper filling up Pipe F and Pipe C and even reaching the junction between Pipe C and the horizontal pipe[85]. It appears that Pipe F was also blocked in the 4th Incident because I can observe from the video clip of 21 December 2011 the visible proximity between Pipe F and Pipe C. 103.As said, the expert evidence could not pinpoint which section(s) of the Sewer Pipe had blockage and in turn, caused the backflow of waste water. Those video clips could not provide a conclusive answer either. I am not in a position to find that it was more likely than not that the pipes within the defendants’ premises had caused the blockage. Therefore, the plaintiffs fail to show on the balance of probabilities that the defendants caused the backflow of waste water or were responsible for that as a result of their negligence in keeping their premises in good repair. The 5th–8th Incidents: my findings 104.The 5th to the 8th Incidents can be conveniently dealt with together, as they all concern flush water leaking at the Cockloft and in particular, in the 7th Incident, a piece of concrete fell off from the ceiling of the Cockloft allegedly caused by the leakage of flush water. 105.Essentially, the 5th, the 6th and the 8th Incidents all concerned flush water leaking from the ceiling of the Cockloft on 28 February 2012, 8 August 2012 and 6 April 2013 respectively. The 7th Incident concerned a large piece of concrete falling from the middle of the ceiling in the Cockloft on 21 November 2012 and landing a few inches from P1. Supported by video clips and photographs taken on those dates[86], it is undisputed that these incidents happened. 106.As a result of the 7th Incident, the area of the serious spalled concrete with rusting of reinforcement at Location 1 measured around 2.3 meter x 2.3 meter[87]. 107.D1 confirmed in his evidence that the plaintiffs complained to him after each of the Incidents. D1 confirmed that the living room of Flat 1E was directly above the location where the water leaked from the Cockloft ceiling and from where the piece of concrete fell. There was also little dispute that prior to the unauthorized alterations, Flat 1E’s kitchen and washroom were directly above the location where water leaked from the Cockloft ceiling in the 5th, the 6th and the 8th Incident; after the alterations, the living room of Flat 1E was directly above the Cockloft. 108.There are 4 attachments to D1’s witness statement which are cross-section diagrams prepared by D1 depicting the pipes in question to show purportedly how the pipes were connected and how the movements of sewage discharge caused the 5th to the 8th Incidents[88]. I remind myself to exercise caution with these attachments because D1, even in the renovation business, is not an expert in pipe works and the diagrams were prepared by D1 for the purpose of these proceedings and therefore not from an independent source. 109.According to these diagrams, and therefore it was D1’s evidence that, a pipe connected to Pipes D, E and F in the Cockloft, ran across the Cockloft and fed to the ceiling of the Cockloft directly beneath the dining table in Flat 1E[89], which is Location 1. The joint experts’ report did not specifically refer to the existence of such a pipe in the Cockloft. Therefore, I shall only use these diagrams as mere aids to understand the relevant evidence of D1, but will not automatically take them as matters having been proved. 110.The plaintiffs’ allegations in relation to the 5th to the 8th Incidents are twofold, ie that the defendants intentionally caused these Incidents to create a nuisance or, alternatively, that the defendants were negligent in keeping their premises in good repair. The hurdle for the plaintiffs to overcome is to convince the court with sufficient evidence that the flush water leaking from the Cockloft ceiling came from the defendants’ premises. 111.On 18 June 2013, officers from the Food and Environmental Hygiene Department attended Flat 1E to carry out colour dye test and took samples from the Cockloft. The test result showed that the samples collected did not contain the colour dye used in the test[90]. However, it has been held by the court on many occasions that negative result from a seepage test is not conclusive evidence that there was no water seepage: See for example, Yeung Chiu Wing & Chan Nga Sze v Ho Chi Ming DCCJ 3244/2015. It is nevertheless the starting point for me to take into account when considering this issue. The expert evidence 112.Regarding the 5th to the 8th Incidents, the focus is on whether the source of the water leakage was from the defendants’ premises at Flat 1E. The key evidence each party relies upon, and which I shall in due course consider and decide on, is the experts’ evidence produced by way of the joint experts’ reports and the experts’ live testimonies. The two experts attended the Cockloft and Flats 1E and 1F for inspection thrice on 10 May and 22 July 2016 (for the joint experts’ report dated 9 December 2016[91]) as well as 25 May 2017 (for the supplementary joint reports’ report dated 10 June 2017[92]). That means, it was already over 4 or 5 years after the incidents[93]. 113.In the Cockloft, the experts identified the “serious spalled concrete area” in the ceiling as “Location 1”, the “peeled off paint area” as “Locations 2 & 3” and the “spalled concrete area” near Pipes D, E, F as “Locations 4 & 5”[94]. For ease of reference, I shall adopt these references in the joint experts’ report to various parts in the ceiling of the Cockloft when referring to any of them in this judgment. 114.KC stated that the water leakage at Location 1 was most likely caused by water from concrete slab of the unauthorized altered living room area of Flat 1E. He further explained that as it was not a legal requirement to perform waterproofing work for living rooms, it was expected that Flat 1E’s living room did not have waterproofing work done and that daily usage or misuse of water might cause moisture which eventually finds a way to seep into the concrete slab to the Cockloft ceiling in Location 1. 115.To this, SC advanced a counter-argument that, in the absence of proof, it was mere speculation to say that daily usage or misuse of water in Flat 1E would cause water to seep into the concrete slab in the living room therefore resulting in leakage and excessive moisture in the Cockloft ceiling at Locations 1 to 4. 116.Under cross-examination, KC admitted that he came to the above conclusion that spalled concrete at Location 1 was caused by water seepage as he described without conducting any tests but only by way of his visual inspection and on the basis of his 30 years’ experience. KC agreed that there might be many reasons for water seepage which might or might not be leakage from pipes. 117.SC, on the other hand, offered an alternative explanation for the water leakage and the damage in the Cockloft ceiling. He stated that moisture could reach the Cockloft ceiling by condensation from repeated opening and closing of freezers in the Cockloft and cooking process in the Shop. SC also pointed out that there was unauthorized extension of the metal floor in the Cockloft which created “additional huge loading” to the structural elements of the Cockloft. Under cross-examination, after viewing the video clip of water leakage from the ceiling in the 5th Incident[95], SC conceded that the opening and closing of freezers and cooking process would not cause such serious water dripping. As to the metal floor extension, he said, if it had any structural effect on the Cockloft, it would first affect the wall before the ceiling. SC could not say whether there was any structural effect observed on the wall in the Cockloft. 118.KC was also of the opinion that the unauthorized alteration in Flat 1E to convert the original kitchen and washroom to living room would have damaged the original waterproofing work in the concrete slab over Locations 2 and 3. 119.Regarding Locations 4 and 5, KC formed the view that moisture was likely to have seeped through the weak points surrounding the pipework during the 1st to the 4th Incidents but it was unrelated to the unauthorized connection of pipes to the Sewer Pipe. Under cross-examination, KC agreed that he did not mention the conditions of the pipes in Flats 1E or 1F which he said might have been the source of leakage. 120.SC was of the opinion that water ponding test should have been done to test if there was any water leakage from Flat 1E and test the effectiveness of the waterproofing system in the area concerned. The raised floor in Flat 1E’s kitchen and toilet meant that the waterproofing work, if any, could not be seen with naked eyes by way of inspection. SC stated that he could not tell from his inspection of the premises whether new or additional waterproofing work was done when the kitchen and the washroom were moved to the original flat roof area after the unauthorized alterations taken place at the premises. He opined that the original waterproofing work was well-maintained as the concrete was found to be very dry at the time of the experts’ inspection. 121.On the other hand, KC disagreed that water ponding test should have been done because he was of the view that such test might cause further pieces of concrete to fall in the Cockloft. When being cross-examined, KC conceded that he was not sure about the existence or the effectiveness of the waterproofing system in the premises. 122.SC said that the spalling of concrete may be caused by the rusty bend or elbow embedded in the concrete or by the aging of concrete at Locations 4 and 5. Under cross-examination, SC agreed that when there was existing problem of aging concrete, water seepage would accelerate the rate of concrete falling. 123.KC disagreed with this observation and contended that the aging of concrete and the rusting of iron bend could not cause such serious spalling of concrete but water seepage must have had a part to play. 124.I first consider the defence propositions advanced by SC in relation to the possible cause(s) of the water leakage in these incidents:-
125.Nevertheless, I bear in mind that it is still for the plaintiffs to prove, on the balance of probabilities, that the source of the water leakage was from the defendants’ premises and, that there is no presumption that the defendants being the upper floor owner must be responsible for the water leakage to the plaintiffs’ premises immediately underneath. 126.Apparently, there are shortcomings in KC’s evidence which the plaintiffs seek to support their case:-
127.As said, it is well-settled law that the defendant has no obligation to find out the source of the water leakage or to prove that it did not come from his premises, but it should be the burden of the plaintiff to establish that the source of water was from the defendant’s property. 128.For all the above reasons, the plaintiffs cannot, on the balance of probabilities, discharge their burden of convincing me that the source of water leakage, ie the cause of the 5th to the 8th Incidents (which also includes and leads to the spalling of a piece of concrete in the 7th Incident), was from the defendants’ premises. As such, the plaintiffs fail to prove the defendants’ liability, which includes that under negligence, nuisance as well as the alleged breaches of the relevant sections of the DMC and the BMO, in the 5th to the 8th Incidents. CONCLUSION ON LIABILITY 129.Regarding the 1st Incident, I find that the defendants by drilling a hole on the wall of Flat 1F to release the waste water onto the Service Lane did not act unreasonably in the circumstances of the case and, that the plaintiffs fail to prove, on the balance of probabilities, that it was an act of nuisance by the defendants or that there was negligence of the defendants. 130.Regarding the 2nd Incidents, I find that the plaintiffs fail to prove, on the balance of probabilities, that the waste water leakage at the Cockloft was caused by an intentional act or negligence of the defendants. 131.Regarding the 3rd and the 4th Incidents, I find that the defendants failed to properly install the Temporary Pipe and promptly re- attach the Temporary Pipe after its disconnection or take any other remedial measure within reasonable time to prevent the waste water showering in the Service Lane at the back door of Shop G of the plaintiffs and that their acts amounted to nuisance as well as negligence wrongfully affecting the rights of the plaintiffs over their enjoyment of their property. 132.Regarding the 5th, the 6th and the 8th Incidents, I find that the plaintiffs fail to prove, on the balance of probabilities, that the cause of the water leakage in the Cockloft was from the defendants’ premises. Similarly, for the 7th Incident, the plaintiffs fail to prove, on the balance of probabilities, that the spalled concrete was caused by water leakage from the defendants’ premises. 133.In summary, I find that the plaintiffs succeed in their claims in relation to the 3rd and the 4th Incidents but fail in those in relation to the 1st, the 2nd and the 5th to the 8th Incidents. I find that the defendants should be responsible only for the 3rd and the 4th Incidents. RELIEF AND QUANTUM 134.I have found that the 3rd and the 4th Incidents were nuisance and negligence by the defendants and as a result, the plaintiffs were prevented from their rightful enjoyment of Shop G, ie prevented from accessing Shop G via the back door. The plaintiffs claim for (i) an injunction to restrain the defendants from continuing the 1st to the 4th Incidents (ii) a mandatory injunction requiring the defendants to facilitate an inspection of Flat 1E and to carry out the necessary repair works to stop the discharge of waste water onto the Service Lane and (iii) damages for “injury of discomfort”. By an amendment of the Statement of Claim, the plaintiffs gave up their claim for damages for their loss of business[97]. Restraining injunction and mandatory injunction 135.I was told that D1, Old Mr Kwok and Mrs Kwok moved out of Flat 1F in late 2014 or early 2015. D2, her husband and their baby moved into Flat 1E in September 2015. But at the time of the trial, only D2 lived in Flat 1E temporarily[98]. Since August 2016, Flat 1F was rented to others. The plaintiffs’ evidence was that since D1 and his parents moved out of Flat 1F, all incidents of leakage from the Cockloft ceiling ceased. The discharge of waste water onto the Service Lane was put to an end by a pipe installed with the Buildings Department’s permission. 136.More importantly, for the above reasons, I have found against the plaintiffs in their claims in the 1st, the 2nd, the 5th to the 8th Incident. 137.In the circumstances, there is no need for me to grant any injunction, be it prohibitive or mandatory. Damages for inconvenience and discomfort 138.I have found that the defendants were acting unreasonably which amounted to nuisance and negligence in the 3rd and the 4th Incidents and as a result the plaintiffs were prevented from having their rightful enjoyment over Shop G, ie prevented from accessing Shop G via the back door, due to the discharge of waste water onto the Service Lane. 139.Therefore, the plaintiffs should be entitled to damages for the inconvenience and discomfort suffered as a result of those two incidents. 140.The plaintiffs claimed damages for “injury discomfort”, or more conventionally known as inconvenience and discomfort, arising from those incidents. This head of damages is recoverable: John So v Lau Hon Man CACV 110/1993 (dated 5 October 1993) and Lo Yu Chu v Kam Fu Lai Development Co Ltd CACV 50/1994 (dated 29 September 1994). As often said in cases where the court awards damages for discomfort and inconvenience, there is no mathematical formula. The sum awarded must be conventional: John So v Lau Hon Man (supra). 141.Counsel have referred me to a number of cases on this head of damages. All of those cases concerned seepage inside flats rather than nuisance outside the property therefore disrupting access as what happened in this case. 142.Counsel for the plaintiffs seek to rely on:-
143.Counsel for the defendants, on the other hand, invited the court to distinguish the said cases cited by the plaintiffs and consider these cases:-
144.I also tried to look for some other cases, in particular the more recent ones, concerning fresh or waste water seepage, in the hope that they may provide further guidance on or reference for assessment of damages, as such leakages tend to bring considerable distress to the plaintiffs.
145.In the present case, the 3rd Incident lasted for about a month, ie between 21 January to mid-February 2012. The 4th Incident lasted for 11 days, ie between 26 February and 7 March 2012. Of course, I do not overlook the possibility that the plaintiffs may not have used the back door of Shop G since the 3rd Incident until the eventual connection of pipes to Shop E because they were, as any reasonable man would be, mindful that waste water could shower the Service Lane again at any time on any given day. The fact that the plaintiffs were still able to access Shop G from the front door mitigates against the inconvenience caused by the defendants’ act. 146.I also bear in mind that the 3rd and the 4th Incidents were extremely unpleasant to the plaintiffs, in particular so for them to run a chicken business at Shop G. Although the discharge was outside their business premises (as opposed to inside a residential unit), waste water poured from the pipe outlet above the back door of Shop G and even above the windows of the Cockloft. I have watched the video clips taken at the Service Lane. It is appropriate to describe the waste water as “showering” the Service Lane. One cannot fail to understand the disgust of seeing, smelling and hearing what is normally flushed down the toilets to splash down like a rain shower in a public place, let alone directly over one’s premises. The 3rd and the 4th Incidents were even more frustrating for the plaintiffs who sold cooked chickens in Shop G and anyone who learnt of such unhygienic incidents happening in the vicinity would most likely refrain from buying from the plaintiffs. 147.Having compared to the cases which I have referred to above and considered all the circumstances in the present case, I am of the view that the appropriate damages payable to the plaintiffs by the defendants for discomfort and inconvenience for the 3rd and the 4th Incidents should be $60,000 and I so award. The plaintiffs should also be entitled to interests on this head of general damages, which I now order to be calculated at judgment rate from the date of the writ until full payment by the defendants. COSTS 148.As a matter of general principle, costs should follow the event. There is no reason why that general principle should not apply in this case. 149.The plaintiffs succeed in their claims in two incidents (the 3rd and the 4th Incidents) but fail in the remaining six incidents (the 1st, the 2nd and the 5th to the 8th Incidents). If the complexity of the matters and the time taken for each of those 8 incidents were exactly the same, the defendants should be compensated by half of their costs. However, I noted that most of the time taken for the preparation of the case and that for the trial was spent in arguing and handling the 1st to the 4th Incidents. For instance, the witnesses of facts from both sides (whose evidence covered the 1st to the 4th Incidents) took 5 days in the trial; on the other hand, the two expert witnesses (whose evidence covered the 5th to the 8th Incidents) took only 2 days. As a matter of fairness, that should be reflected in the costs order. 150.I therefore make an order nisi, which shall become absolute in 14 days in the absence of any parties’ objection in writing, that one-fourth of the costs of this action shall be paid by the plaintiffs to the defendants, with a certificate for counsel, to be taxed if not agreed.
Ms Queenie Ng, instructed by Chan, Lau & Wai, for the 1st and the 2nd plaintiffs Mr Lee Shu Wun, instructed by Tony Kan & Co., for the 1st and the 2nd defendants [1] See Floor Plan (Ground Floor and Cockloft) at [302] of the Bundle [2] See Floor Plan (First Floor and Typical 2nd-5th Floors) at [303] of the Bundle [3] Para (n)(1) of the Fifth Schedule of the DMC (see [321] of the Bundle) provides that:-
[4] Section 34H of the BMO provides that:-
[5] See letter at [345-349] of the Bundle [6] Namely, (i) erection of structures on the flat roof and connected to Flat 1E, (ii) removal of external walls and (iii) removal of windows [7] See orders at [404-408] (re Flat 1E) and [410-414] (re Flat 1F) of the Bundle [8] Namely, erection of drainage pipes on the external wall and connected to Flat 1E and Flat 1F [9] See Statement of Claim at [17-18] para. (1)-(3) of the Bundle [10] See Statement of Claim at [16] para 35 and [18] para (4)-(6) of the Bundle [11] See Floor Plan (First Floor and Typical 2nd-5th Floors) at [303] of the Bundle [12] See [309] and [328] of the Bundle [13] See Floor Plan, at [303] of the Bundle [14] See diagram of the Joint Experts’ Report at [214] of the Bundle [15] See the diagram annexed to the letter of the Buildings Department at [349] of the Bundle [16] D1’s examination in chief, 10.07.2017; also see [304(a)] of the Bundle [17] See D1’s witness statement at [78] of the Bundle, at para 9 [18] See D1’s witness statement at [78] and [79] of the Bundle, at paras 9 and 12 [19] Section 2 and Schedule 1 of Building Management Ordinance (Cap 344) [20] See Supplementary Joint Experts’ Report dated 10.06.2017 at [298] of the Bundle [21] See Supplementary Joint Experts’ Report dated 10.06.2017, photos at [296] of the Bundle [22] See photos at [296-296(b)] of the Bundle [23] See photos at [425-428] of the Bundle [24] See for example, like Mr Wong Man Kai (DW5) who signed such an acknowledgment note dated 3.8.2006, at [342] of the Bundle [25] P2 all along insisted them to be rainwater pipe “雨水渠” in his cross-examination on 7.7.2017 and even up to re-examination on 10.7.2017 [26] Supplementary Joint Experts Report dated 10.6.2017, at [285] and [298] of the Bundle [27] Supplementary Joint Experts’ Report at [279-280] and [289] and Appendix at [298] of the Bundle [28] [343] and [350] of the Bundle [29] P2’s witness statement at [63] of the Bundle, at paras 9-10 [30] See letter from Tin Sum Police Station at [400-402] of the Bundle [31] [344-349] of the Bundle [32] Published by the Oriental Daily on 26.10.2011, see [364] of the Bundle [33] Published by the Next Magazine on 15.3.2012, see [432-435] of the Bundle [34] P2’s cross-examination on 7.7.2017 [35] For example, at [343], [359-363], [436-437], [439-440] of the Bundle [36] [343] of the Bundle [37] [436-437] of the Bundle [38] [439-440] of the Bundle [39] [440] of the Bundle at paras 3-4 [40] PW3’s cross-examination on 10.7.2017 [41] Neither is it defined by the DMC to be exclusive use or common area or referred to in Schedule 1 of Buildings Management Ordinance (Cap 344) [42] See Amended Statement of Claim at [10] of the Bundle, at para 20 [43] See Amended Statement of Claim at [12] of the Bundle, at para 28 [44] See D1’s witness statement at [80-82] paras 16-22 of the Bundle; described to be “between toilet X and ∆3 as marked on [304] of the Bundle in D1’s cross-examination on 11.7.2017 [45] See Kwok Chi Fook’s witness statement at [102-103] at paras 7-8 of the Bundle [46] Wong Man Pang’s witness statement at [127-128] of the Bundle [47] D1’s examination-in-chief on 11.7.2017 [48] Item 77 of the Bundle [49] D1’s witness statement at [81-82] of the Bundle at paras 17-22; also D1’s cross-examination on 11.7.2017 [50] See photos at [352-357], the diagram in the Supplementary Joint Experts’ Report dated 10.6.2017 at [298] of the Bundle [51] See D1’s witness statement at [83] at paras 25-26 of the Bundle [52] P2’s examination-in-chief on 29.4.2020 [53] D1’s examination in chief on 11.7.2017 [54] See photos at [368-370] of the Bundle [55] Old Mr Kwok (DW6)’s witness statement at [105] of the Bundle at para 16 [56] See photos at [366-367] of the Bundle [57] D1’s witness statement at [85-86], [96] and [97] of the Bundle, at paras 31-34 and annexures 2 and 3; see also photos at [392-393] of the Bundle [58] D1’s witness statement at [86] and [97] of the Bundle, at para 34 and annexure 3; see also Old Mr Kwok (DW6)’s witness statement at [106] of the Bundle, at para 18 [59] P2’s witness statement at [66] of the Bundle at paras 23-25 [60] P2’s examination-in-chief and cross-examination on 7.7.2017 [61] P2’s witness statement at [66] of the Bundle at paras 23-25 [62] See photo at [366] of the Bundle [63] [368-370] of the Bundle [64] DW6’s cross-examination on 13.7.2017 [65] See photo at [367] of the Bundle [66] DW6’s cross-examination on 13.7.2017 [67] See photo at [367] of the Bundle [68] D1’s cross-examination on 11.7.2017 [69] DW6’s cross-examination on 13.7.2017 [70] See Amended Statement of Claim at [12, 14] paras 28 and 31(f) of the Bundle [71] Clerk & Lindsell on Torts (22nd ed) at 22-39 to 22-40 [72] See Amended Statement of Claim at [12, 14] paras 28 and 31(f) of the Bundle [73] See video (Item 46) of the Bundle [74] See video (Item 45) of the Bundle [75] D1’s witness statement at [88] of the Bundle at para 40 [76] [422-424] of the Bundle [77] [430] of the Bundle [78] See the notice of the IO dated 17 March 2012 at [439-440] of the Bundle [79] Mrs Kwok’s (DW2’s) witness statement at [118] at para 15 of the Bundle [80] See video (Item 46) of the Bundle [81] Supplementary joint experts’ report at [282, 283, 285, 289] of the Bundle [82] KC’s cross-examination on 10.10.2017 [83] SC’s cross-examination on 11.10.2017 [84] Video clip (Item 34) of the Bundle and D1’s evidence in chief on 10.7.2017 [85] Video clip (Item 45) of the Bundle [86] Items 48, 69, 72 and 74 of the Bundle [87] Joint experts’ report at [264] of the Bundle [88] D1’s witness statement [95-98] of the Bundle [89] See, for example, Attachment 1 to D1’s witness statement at [95] of the Bundle where the pipe was marked with “上一手業主已廢用的去水渠” and “舊生鏽公用排污渠” [90] See letter at [503] of the Bundle [91] [150-275] of the Bundle [92] [276-301] of the Bundle [93] The 1st Incident took place on 2.8.2011 and the 8th Incident took place on 6.4.2013 [94] See Joint experts’ report at [153-154] and diagram at [227] of the Bundle [95] See video (Item 48) of the Bundle [96] Joint experts’ report at [207] of the Bundle [97] See Amended Statement of Claim at [16-18] of the Bundle [98] D1’s cross-examination on 11.7.2017 | ||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 1583/2013