Lau May Ming Mamie v. Zhao Wei

HCA 1010/2019

[2022] HKCFI 322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1010 OF 2019

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BETWEEN

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Before: Hon G Lam JA, sitting as an additional judge of the Court of First Instance, in Court

Date of Hearing: 10-12 & 14 May 2021

Date of Judgment: 27 January 2022

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J U D G M E N T

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Introduction

1.This is an action brought by the owner of one flat against the owner of the flat immediately above, complaining of water seepage. The flats in question are both Flat D, on 35/F and 36/F respectively, in one of the towers of a development on Hoi Fai Road, Kowloon. I shall refer to them as “35D” and “36D” respectively.

2.The plaintiff sues for breach of various provisions of the Deed of Mutual Covenant in respect of the building (including clauses 7 and 12 of Section E and clause 9 of the Third Schedule) and for the torts of negligence and nuisance. There is no real dispute that 35D has suffered water seepage in the ceiling areas of the bathrooms. Nor is it disputed that the defendant would be liable on one or more of the causes of action relied upon if water did seep from his flat to the plaintiff’s as alleged. The sole issue on liability is whether the water seepage was from 36D. The damages payable need to be assessed if liability is established.

3.There was a counterclaim by the defendant on the basis that the plaintiff’s contractor damaged the water supply pipe for 36D during the emergency repairs in April 2017 with the result that the defendant’s daughter who was living there had to pay for hotel accommodation for two days. The counterclaim was compromised shortly before the trial started and so the trial concerns only the plaintiff’s claim.

Background

4.In the original configuration of both flats, there are a guest bathroom and a master bathroom, adjacent to each other, in each flat. The concrete ceiling of each bathroom has a higher portion (the structural slab) and a lower portion (the sunken slab), but is usually covered with a false ceiling.

5.The plaintiff acquired and moved into 35D in around 2000 when the building had just been completed. The master bathroom and guest bathroom of 35D have not been re-partitioned.

6.The defendant acquired 36D in late 2011 and carried out renovation works in around 2012, including merging the two bathrooms, with part of the original master bathroom being assimilated into the master bedroom. The two original bathtubs were replaced by a single shower cubicle. The shower tray was positioned directly above the sunken slab of the two bathrooms of 35D. The shower tray walls were covered with metal panels. After the renovations, the defendant’s daughter, Ms Zhao Xiangying (“Ms Zhao”), began to reside in 36D from time to time.

7.In 2013, the plaintiff started noticing rust in the false ceiling of her master bathroom and infestation by small insects in the flat. Between 2014 and 2016, the Towngas water heater installed on a wall of the guest bathroom malfunctioned on three occasions. Inspection showed dampness inside the heater.

8.In October 2016, the plaintiff together with representatives of the estate’s management office (“Management Office”) discovered that there was spalling of the concrete ceiling in both bathrooms of 35D, with fallen concrete pieces on the false ceiling, as well as stalactites, mouldy and damp patches, cracked loose concrete, and exposed rusty steel rods. Ms Zhao and the contractor engaged by the defendant for the renovation works of 36D were notified. The contractor inspected the bathrooms of 35D and claimed that the water had originated from the external walls. He swept away the stalactites.

9.The plaintiff lodged a complaint with the Joint Office for Investigation of Water Seepage Complaints set up by the Buildings Department and the Food and Environmental Hygiene Department (“Joint Office”). The Joint Office sought to enter 36D for inspection but was denied entry. Eventually it obtained a warrant from the court and entered and inspected 36D together with its contractor, David SK Au & Associates Ltd (“DAA”), on 11 January 2017. The Joint Office and DAA also inspected 35D on 7 February 2017. DAA issued a report dated 10 February 2017.

10.Meanwhile, the plaintiff had engaged Ms Lau Shan La (“Ms Lau”), a surveyor of Hong Kong Survey Ltd, who inspected 35D in November and December 2016. She did not have access to 36D. She issued a report dated 11 January 2017, concluding that the water seepage in 35D had originated from the faulty waterproof layer of the bathroom floor slab and related drainage pipes of 36D.

11.On around 20 January 2017 the plaintiff filed a claim against the defendant in the Small Claims Tribunal in relation to the water seepage (SCTC 003285/2017). There the defendant was represented by Ms Zhao, who stated that it was the external wall of 35D that caused the water seepage. The case was transferred to the District Court, from which it was further transferred to the High Court in around May 2019.

12.Between 24 and 28 April 2017, the plaintiff caused emergency repairs to be done to the ceilings of both bathrooms in 35D, as more concrete pieces and rusted reinforced steel bar fragments came loose and fell, and the anchors of the false ceiling had become insecure. Besides polishing rusted steel rods, new steel rods were welded for reinforcement, loose concrete pieces were removed, and new false ceiling panels were installed.

13.On 1 March 2018, Ms Lau and Mr Tang Chi Wang (“Mr Tang”), the surveyor engaged by the defendant, together with one Mr Chan and one Mr Ma from the testing firm Castco Testing Centre Ltd (“Castco”) which was commissioned for the defendant, conducted a joint inspection of both flats. On 29 March 2018, they (with the exception of Mr Chan) conducted a second joint inspection.

14.In April to May 2018, the Management Office commissioned Building Diagnostic Consultants Limited (“BDC”) to perform infrared thermal imaging of the external walls of the building. BDC found no defects in the external walls of 35D and 36D.

15.On 2 May, 20 June and 20 December 2018 respectively, the Joint Office conducted further inspections of 35D. On 9 and 30 June 2020, the Joint Office inspected 35D again.

The evidence

16.At the trial the plaintiff and her son Mr Justin Wong testified. The plaintiff has lived in 35D at all material times and her son has lived there since around September 2016. They gave their evidence, which is not inherently improbable, in a straightforward manner. They gave sensible and credible answers in cross-examination. I accept their evidence. I do not, however, place much weight on Justin Wong’s evidence regarding when 36D was occupied or not occupied which was only based on his hearing of sounds from above and seems to me to be relatively unreliable.

17.A witness statement of the defendant and his daughter Ms Zhao respectively had been filed but neither of them was called to give evidence. Their statements do not therefore form part of the evidence.

18.As for expert opinion, Ms Lau gave evidence for the plaintiff and Mr Tang gave evidence for the defendant. The experts agreed that there was no leakage in the water supply pipes in 36D and that there were no apparent major defects or leaking drain pipes on the external wall of both flats. Based on the various tests and inspections, Ms Lau concluded that the water seepage in 35D was caused by leakage in the drainage pipes and waterproofing layer below and around the shower tray in 36D. In contrast, Mr Tang’s view is that all possible sources of leakage from 36D could be ruled out and that the only possible cause of the seepage in 35D left was water penetration from the external wall. Both counsel have made submissions alleging partiality on the part of the other side’s expert, but the points made have not impressed me as being sufficient on their own to discredit either of the experts. I prefer to examine the substance of their opinions on the various issues for my decision.

19.It is not in dispute that there is no presumption from the mere fact of water seepage in one set of premises that it has been caused by the premises above. In this case the burden lies on the plaintiff to prove that the water seepage came from 36D. I shall refer to significant aspects of the evidence below before drawing the threads together to arrive at a conclusion.

Investigations by Ms Lau in November & December 2016

20.Ms Lau investigated in 35D on three occasions in November and December 2016. She observed that there were water stains, spalled concrete and exposed steel bars in the ceiling of the master bathroom, and also spalled concrete and exposed steel bars in the ceiling of the guest bathroom. Infrared scans showed abnormally cool areas in the ceilings, indicating water seepage as Mr Tang acknowledged. Electrical conductivity tests also showed water seepage in the ceilings. Microwave scans showed more moisture at 110 mm depth than at 30 mm depth, and from the pattern of the tomography Ms Lau reasoned that the moisture had come from above. In her oral evidence she gave further explanation of this reasoning which I accept. She also made visual inspection and infrared scan of the external wall of the two flats, which did not reveal any leakage there.

Investigations by Joint Office and DAA in January & February 2017

21.DAA investigated 35D and 36D on 11 January 2017 and 35D again on 7 February 2017. Moisture meter reading was above 35%, showing apparent moisture on the bathroom ceilings of 35D. The moisture content was not correlated with weather conditions, based on which DAA considered that leakage from external walls was unlikely. Inside 36D, they noted that there was no waterproof sealant between the shower tray and the enclosing walls. They carried out a pond test with fluorescent dye water on the shower tray and a spray test to the enclosing walls in 36D, but no fluorescent effect under UV light was observed at the bathroom ceilings of 35D either on 11 January or 7 February 2017. As there was no threshold or floor drain in the bathroom of 36D, DAA did not carry out a pond test on the bathroom floor outside the shower tray. They concluded that the source of seepage could not be identified based on the tests adopted.

22.The defendant points out that there was no obvious increase in the moisture content of the ceiling of the master bathroom of 35D on 11 January 2017 after the pond test, and the moisture content was even lower on 7 February 2017. As Ms Lau explained, however, this could be explained if there was water usage in 36D before 11 January but not in the intervening period up to 7 February. Mr Tang agreed that this scenario, if true, could be an explanation. There is however no factual evidence from the defence as to whether there was any water usage during that period.

23.Further, even on 7 February 2017, the moisture content readings were mostly above 20% which, as acknowledged by Mr Tang, was indicative of moisture though not serious seepage.

24.The defendant also relies on the negative result of the pond test with fluorescent dye water carried out by DAA as evidence against leakage from 36D. I am however not impressed by this argument. In a letter dated 18 May 2017, the Joint Office pointed out that they could not reach a conclusion as no pond test could be carried out on 36D’s bathroom floor around the shower tray. They also stated that the dye water could take a relatively long route and time to show up as seepage rather than during the time frame of their investigation. Separately, they also told the plaintiff that in their experience, some owners whose flats were the suspected source of leakage would take temporary stop-gap measures such as replacing old defective sealant before the Joint Office’s investigation, which however would not address the root cause such as defective waterproofing in the floor slab. There is no evidence in this case whether or not such temporary measures had been taken in 36D. The Professional Guide to Water Seepage published by the Hong Kong Institute of Surveyors also explains that negative results may be due to inadequate flushing water, incomplete dye powder dissolution, insufficient time allowed between the addition of the dye and its sampling in the damp zone, or absorption or filtration of dye solutions along the cracks. The courts have also recognised in previous cases that negative results of a dye water test do not conclusively show that there is no seepage: see e.g. Lam Ting Kwan v Teamwell Corporation Ltd [2019] HKDC 1593, §115.

Joint inspection by the parties’ experts in March 2018

25.On 1 March 2018, Ms Lau on the one hand, and Mr Tang and Castco on the other, conducted a joint investigation in both flats. They returned four weeks later, on 29 March, for a second joint inspection. Ms Lau and Castco issued their respective reports in May 2018. Ms Lau’s and Mr Tang’s joint expert report (on liability) was signed off in December 2018, which contained statements of their respective opinions as well as their comments on each other’s opinions. Mr Tang based his opinions on the tests and findings of Castco.

26.During the joint inspection, severe concrete spalling was observed on the sunken slabs of the ceilings of the bathrooms of 35D with the steel bars exposed. Crystal-like substances were observed. Wetness with green/yellow colour was observed on tissue paper used to wipe the ceilings, though no fluorescence was found on such sample collected with tissue paper. Electrical conductivity tests confirmed there was water seepage in the ceilings of both bathrooms. The walls adjacent to the sunken slabs showed efflorescence and water stains.

27.Infrared tests on the ceilings of the two bathrooms of 35D however did not reveal any abnormally cool regions, though Mr Tang accepts that this could be explained if there was in fact no water usage in 36D for a significant time prior to March 2018.

28.There were two layers of steel bars in the concrete slab between the two flats. Ms Lau observed that the crystal-like substances found had formed more on the upper side of the lower layer of steel bars. I accept her opinion that this was a pointer that corrosion of the upper layer of steel bars was significant and that moisture had come from above. Although Mr Cheung, counsel for the defendant, suggested and Ms Lau agreed that oxidation of steel bars could occur if the concrete covering them was too thin, she added that such oxidation would take a relatively longer time than the evidence suggests was the case. It is also not clear whether the concrete layer referred to by Mr Cheung was done in the emergency repairs in 2017. There is nothing to suggest that there was a problem of this kind elsewhere in the estate. It is also notable that there were rust stains suggesting the flow of water and not simply oxidation by air.

29.A pond test using dye water (pyranine) was conducted on the shower tray and shower walls in 36D on 1 March 2018. No fluorescence was found in 35D before the test or one hour afterwards. But on 29 March, Ms Lau observed a small patch of fluorescence on the top part of a wall, near the ceiling, in the master bathroom of 35D. She stated that based on her observation this was fluorescence caused by the presence of the dye water used in the pond test on 1 March. This is disputed by Mr Tang. Castco accepted that there appeared to be fluorescence, but opined that it was caused by plaster/light reflection.

30.In around May 2018, Mr Tang for the first time suggested carrying out an additional inspection on that area which would include hacking of the surrounding plaster and conducting another pond test with a different colour dye. Ms Lau counter-proposed another visual inspection of the ceilings and surrounding walls with the aid of UV light and collecting water/stalactite samples for analysis if necessary. Her proposal was rejected by Mr Tang, and the experts did not carry out a further inspection.

31.On balance, I prefer the opinion of Ms Lau on this point:

(1) Mr Tang said that the fluorescence-like response observed on 29 March could be the effect of light reflection as the brightness of the surrounding environment on the two days of 1 and 29 March was very different. I find this unpersuasive, and Mr Tang did not demonstrate how different visible lighting conditions could create false fluorescence under UV light.

(2) Mr Tang said that the angle of UV light could also affect the visual effect. However there is no evidence that the angles of UV light used on 1 March and 29 March were significantly different, or any reason why they should be significantly different. Nor did Castco suggest there was any relevant difference in the methods of observation adopted between the two days.

(3) Further, Mr Tang said that certain materials could show fluorescence-like response to UV light such as wooden materials, rust, plaster and stain. Castco’s own report stated that the fluorescence was due to the effect of plaster / light reflection. However as Ms Lau said, the surface material at the area appeared to be uniform, and the colour tone of the fluorescence was consistent with fluorescence of pyranine. A neighbouring area that showed fluorescence contained wooden material, as Ms Lau said; so the fluorescence there would appear to have been caused by wood, rather than plaster as Castco asserted, which cast doubt on the reliability of Castco’s assessment of fluorescence effects. It was also unsatisfactory that the lead inspector from Castco (Mr Chan) did not attend the inspection on 29 March. There is no cogent explanation why the relevant fluorescence was observed on 29 March but not on 1 March.

(4) Mr Tang said that he focused on the ceilings and not the walls on 1 March (which was not surprising since the concern was water seepage affecting the bathroom ceilings), but that part of the wall was very close to the ceiling and showed efflorescence and rust and water stains, and given that the UV beam was fairly diffuse rather than laser-sharp, there was no real reason why the fluorescence would not have appeared and been observed on 1 March as on 29 March if it were caused by the existing surface material of the wall. As Ms Lau said, neither she nor Mr Tang exclusively confined their attention to the ceilings during the inspection on 1 March. It seems to me that the fact that the experts’ joint method statement referred to the ceilings did not mean that the experts could not inspect an adjacent area on the walls if warranted by actual condition at the site. Mr Tang also accepted that during the inspection there could be additions to or deletions from the planned methodology.

(5) I appreciate that infrared thermographic scan of the internal walls of the bathrooms on 29 March did not reveal any abnormally cool areas. However, the infrared scan on the bathrooms’ ceilings on 1 and 29 March did not reveal any abnormally cool areas either, even though measurements with moisture meter revealed areas with moisture (20% or above, albeit below 35%).

(6) The subsequent inspections by the Joint Office (as discussed below) in my view reinforce Ms Lau’s opinion.

32.Microwave scanning was performed on the bathroom ceilings of 35D both before and after the pond test. Mr Tang accepted that microwave tomography could show the moisture path in certain cases. He said there was no obvious sign of water seepage path based on the microwave tomographic survey in this case, but his views were quoted from Castco’s report.

33.Ms Lau noted that, based on average readings, after the pond test, there was significant increase in moisture content at the depth of 110 mm in the sunken slab of the two bathroom ceilings, i.e. the parts directly below the shower tray in 36D. The high concentration of moisture appeared in the middle of the scan, i.e. away from the external wall. Ms Lau demonstrated, in particular, that there was increased moisture both one hour and four weeks after the pond test in the area where the sunken slab adjoined the structural slab of the master bathroom. As Mr Tang accepted, the 110 mm level could provide more rapid response relative to the other tested depths (30 mm and 70 mm). This in my view tends to suggest that after the pond test, moisture had come from the floor above rather than the external wall.

34.Infrared testing of the external wall and pipes outside 35D and 36D did not reveal any parts with abnormally low temperatures either on 1 or 29 March. Castco itself stated that the external walls of 35D were inspected by infrared thermal tracer and no suspected water seepage area was found, though they were making the point that the pond test water had not leaked out to the external walls.

Investigation of external wall by Management Office in 2018

35.In April and May 2018, the Management Office engaged BDC to perform thermal imaging of the external walls. They concluded there were no apparent defects in the external walls of 35D or 36D.

36.In August 2018, the Management Office conducted an inspection of the external wall outside 35D and 36D and did not find any visible defects such as cracks.

Subsequent Joint Office’s inspections from 2018 to 2020

37.The Joint Office conducted a few further inspections of 35D after the joint experts’ inspections. On 2 May 2018, the Joint Office found there were crystal-like formations on the ceiling of both bathrooms. Tissue paper used to wipe those substances became wet. Fluorescence was observed under UV light at what appears to be the same or similar location on the master bathroom wall as observed by Ms Lau on 29 March.

38.At the inspection on 20 June 2018, the Joint Office again found crystal-like substances on the ceilings. Tissue paper used to wipe the substances became wet. Fluorescence was observed not only at the same location identified in the preceding visit, but also at two other spots at the ceiling directly above the bathtub in the master bathroom.

39.At the inspection on 20 December 2018, in addition to the previous findings, fluorescence was observed at one further spot in the master bathroom between the two additional spots first observed on 20 June, and at one location in the ceiling of the guest bathroom.

40.The same fluorescence was observed in the final two inspections carried out by the Joint Office on 9 and 20 June 2020.

41.It is submitted on behalf of the plaintiff and I accept that these progressively increasing patches of fluorescence are indicative of the eventual seepage of dye water from 36D.

42.Counsel for the defendant submits that the evidence of such subsequent fluorescence is expert evidence and should not be admitted. I do not accept this submission. It seems to me the relevant letters from the Joint Office simply stated facts, attaching the relevant photographs and floor plans for identification of the location. Mr Tang accepted that no special skills were needed for observing fluorescence. The letters did not offer any interpretation of those facts which would be opinion. It is open to the plaintiff to make submissions as to the inferences to be drawn from those facts.

43.Counsel also submits that the Joint Office could have but did not apply UV light to the tissue papers used to wipe off moisture from the fluorescent points, which would have been a surer guide to whether the fluorescence was caused by the dye test water. As Justin Wong explained, however, the Joint Office told him that tissue paper would naturally fluoresce so that the exercise would not be a fair one. I accept this evidence which was spontaneous and not inherently improbable.

44.Mr Tang suggested that the fluorescence observed by the Joint Office in 2018 might have been due to human error. I agree with the plaintiff’s submission that such an error, committed on multiple occasions, is unlikely as the Joint Office’s principal task is to investigate water seepage, and the investigation, involving the use of UV light and observation using special-purpose glasses, was not particularly complicated or difficult.

External wall

45.Mr Tang reasoned that since all other possible causes of water seepage in 35D had been ruled out, the only possible cause left was water penetration from external wall. However, Mr Tang’s view that leakage from the shower tray area of 36D could be excluded is based on his views on the results of the various tests including, in particular, his view that the fluorescent dye test and microwave tomography had produced negative results.

46.Mr Tang said that the sealant to the joints between external wall tiles was found to be ageing. However, this seems mainly based on the fact that parts of the grout had a darkened colour. It is also of note that the plaintiff detected rust in the false ceiling as early as 2013, five years before the joint inspection. I do not find this opinion persuasive.

47.In his oral evidence Mr Tang referred to the possible existence of debonded tiles. This had not been mentioned in Castco’s report. Mr Tang accepted that a suspected debonded area would not necessarily be a source of water seepage. Further, Mr Tang could not satisfactorily explain why if water seepage had in fact occurred at a debonded area, it would not have been revealed by infrared thermography survey.

48.Mr Tang noted that both 1 and 29 March 2018 were sunny days with no or minimal rainfall in the previous three days, whereas there was 0.1 mm rainfall on 25 November 2016 and trace to 36.5 mm rainfall in the preceding three days. He pointed out that the moisture content survey in the sunken slab of both bathrooms of 35D recorded higher readings on 25 November 2016 than on 1 and 29 March 2018. He reasoned from this that it was highly likely that the higher moisture content recorded on 25 November 2016 was caused by water penetration through the external wall.

49.I am not persuaded that seepage from the external wall was a more likely source of moisture:

(1) The Joint Office’s inspection on 1 December 2016 recorded high moisture content even though there was no rainfall on that day and in the previous three days.

(2) Although DAA’s inspections on 11 January and 2 February 2017 were carried out on sunny days, high moisture content was recorded. DAA had actually concluded that the moisture content was unrelated to weather conditions and that leakage from the external walls was unlikely.

(3) The Joint Office conducted inspections on 9 June 2020 (rainy) and 20 June 2020 (sunny) and concluded that there was no significant difference in moisture levels in the ceilings of two bathrooms of 35D after rainy periods compared to sunny periods. Mr Tang agreed that the moisture meter readings at these inspections supported the view that water seepage did not originate from the external wall.

(4) Water seepage in 35D had continued even though repeated infrared tests of the external walls did not reveal any area with moisture.

Conclusion on liability

50.As stated above, there is no real dispute that there was water seepage in the ceilings of the two bathrooms of 35D. Ms Lau’s evidence on the location of crystal-like substances on the steel bars, microwave tomography, and fluorescent dye test, which I accept, tend to show that the seepage had originated from the merged bathroom of 36D. Her findings in the fluorescent dye test are corroborated by the observations made by the Joint Office in subsequent inspections, though even without such subsequent results I would accept her findings. This explanation is consistent with the fact that seepage was first discovered by the plaintiff in 2013, after the defendant had renovated 36D and built a shower space directly above the sunken slabs in the ceiling below.

51.Mr Tang’s opinion that the seepage was caused by water penetration from the external wall was reached, at least in part, on the basis of elimination. But once his conclusion that seepage from 36D can be ruled out is not accepted, the basis for attributing the seepage to the external wall is undermined if not removed. I also consider that his other reason for thinking that the external wall was to blame is flawed, as explained above. There is no real positive evidence tending to show that there was leakage from the external wall. No leakage in the external wall has been identified by several infrared inspections carried out by the experts as well as by third parties.

52.The plaintiff does not have to prove the cause of seepage to a certainty. Having evaluated the evidence, I consider that the plaintiff has proved on a balance of probabilities, i.e. that it is more likely than not, that the water seepage had originated from the bathroom of 36D. It follows that the defendant is liable in both tort and contract as alleged by the plaintiff.

53.The plaintiff is entitled to damages for the loss suffered as a result and/or indemnity of the expenses of necessary repairs, which I assess below. In the circumstances of this case I also grant an injunction requiring the defendant to cause all necessary works to be carried out for the purpose of rectifying and making good the floor of 36D in order to prevent any further water seepage to 35D. Such works should be effected and completed within 4 months. There will be liberty to apply in relation to matters ancillary to the injunction.

Quantum of damages

54.The plaintiff’s claim for damages is for the following amounts:

	Description	Amount claimed
1	Emergency repairs of the ceilings of the two bathrooms in April 2017	$30,000
2	Repairs to make good the damage to 35D	$226,000
3	Inspection of electric circuits (not including repairs)	$2,000
4	Replacement of damaged water heater in guest bathroom	$12,580
5	Hotel accommodation during repairs to be carried out (if repairs are done concurrently)	$111,300
6	Damages for loss of amenity, distress and inconvenience	$100,000
7	Survey to ensure there is no further water seepage from 36D before commencing repairs of 35D	$20,000

55.The two experts have also given evidence on quantum.

56.Item 1 above is an amount actually paid by the plaintiff to the repairs firm as evidenced by a receipt. Although Mr Tang opined that the reasonable cost should be lower (around $9,800), there is no plea by the defendant that the plaintiff failed to mitigate her damage. The amount of $30,000 should be granted.

57.The amount claimed in Item 2 is based on a quotation the plaintiff obtained from a construction company. The experts have since given their opinions on the reasonable cost of repairs on two alternative bases: concurrent repairs to the two bathrooms, and consecutive repairs. Consecutive repairs will cost somewhat more in themselves, but will obviate the need for hotel accommodation for the plaintiff and her son during the period of works and will therefore cost less overall. In favour of the defendant, consecutive repairs should be adopted as the basis of assessment.

58.The total amount of $31,754.06 assessed by Ms Lau covers (i) repairs to the ceilings and the adjoining walls of the two bathrooms and part of the false ceiling of the master bathroom, and small pin-holes in the corridor caused by inspection works; (ii) inspection of electrical circuits in the two bathrooms, and (iii) miscellaneous expenses for the repairs. I consider that these works are necessitated by the seepage caused by the defendant and the amounts are reasonable. I place little weight in the much higher quotation obtained by the plaintiff from a structural engineering firm which appears to have estimated far more substantial works lasting three weeks. I shall therefore award $31,754.06 for this item.

59.The amount of Item 3 is not disputed, but it is already included in the experts’ assessments for Item 2 and so there is no separate award.

60.Item 4 is claimed on the basis that the water heater in the guest bathroom was corroded due to water seepage and was beyond economical repair. The amount is not disputed. I consider it should be granted as I am satisfied that the damage was, more probably than not, caused by the seepage from 36D.

61.Item 5 is the expense of hotel accommodation if the repairs to the bathrooms are carried out concurrently. Since I have assessed Item 2 based on consecutive repairs, Item 5 is not awarded.

62.As to Item 6, there is no dispute that the plaintiff is entitled to damages for loss of amenity, distress and inconvenience caused by the water seepage, represented by a conventional sum. Having regard to the length of time of the seepage, that both bathrooms have been affected which the occupants have to use on a daily basis, that there was at least at some stage infestation of small insects, that the occupants already had to endure the works done in their home during the emergency repairs of April 2017, and that the defendant was uncooperative with regard to the inspections by the Joint Office, I would award $100,000 for this item, which is within the range of the awards in the examples cited to me by the plaintiff’s counsel.

63.Item 7 is also in my view a reasonably necessary expense and should be awarded.

64.The total award is therefore $194,334.06 (comprising $30,000 + $31,754.06 + $12,580 + $100,000 +$20,000).

Orders

65.For the above reasons, the plaintiff’s action succeeds. There will be the following orders:

(1) The defendant do cause all necessary works to be carried out and completed within 4 months for the purpose of rectifying and making good the floor of 36D in order to prevent any further water seepage to 35D.

(2) The defendant do pay the plaintiff damages in the sum of $194,334.06.

(3) Liberty to apply in relation to matters ancillary to the injunction.

66.There will be an order nisi that the defendant do pay the plaintiff the costs of the action to be taxed if not agreed (excluding the costs of the counterclaim as to which there will be no order).

Mr Isaac Yung, instructed by Messrs. Raymond Siu & Lawyers, for the Plaintiff

Mr Ivan Cheung, instructed by Messrs. Wong & Lawyers, for the Defendant