Yeung Yik Chun v. Wong Lai Ming and Another
Read the full judgment text of DCCJ 2004/2019 on BabelCite. This District Court judgment was delivered on 30 August 2023.
1. The dispute in this action arose out of the plaintiff’s complaint about water seepage into his property from the defendants’ property.
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DCCJ 2004/2019 [2023] HKDC 1160 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2004 OF 2019 --------------------------------
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----------------------- JUDGMENT ----------------------- 1.The dispute in this action arose out of the plaintiff’s complaint about water seepage into his property from the defendants’ property. BACKGROUND 2.This case involves a two-storey residential building with a flat roof known as House 22 (“Building”), Cameo Court, Tai Po, New Territories, Hong Kong. Cameo Court is a low-rise residential housing estate which was built in 1991. The Building is built on a terrace-like structure (“Base”). It adjoins House 23 on one side and on the other side, a building (“Office Building”) which houses a transformer room and the management office (“Management Office”). 3.The 1st defendant (“D1”) and the 2nd defendant (“D2”) are wife and husband. They became the registered joint owners of the first floor (“Upper Premises”) and the flat roof (“Flat Roof”) (collectively, the “Defendants’ Premises”) of the Building in 1996. At all material times, they lived with their children and a domestic helper at the Defendants’ Premises. 4.The plaintiff (“P”) became the registered owner of the ground floor of the Building (“Lower Premises”) on 20 July 2017. He had never been an occupier of it and had the intention to let it out for rental income. He rented it out to a tenant at a monthly rental of HK$15,000 from 1 August 2017 to 8 October 2018. 5.The Upper Premises is immediately above and vertically adjoined the Lower Premises. The two premises (“Two Premises”) are identical in size and layout save that Ds’ balcony is smaller in size than that of P. 6.The parties, being the registered owners of the premises of the Building, are subject to the Deed of Mutual Covenant dated 15 April 1991 (“DMC”) and are accordingly bound by the covenants set out in paragraphs 4(a) and 4(b) of section II, paragraphs 7 and 10 of section V therein. Those provisions provide that no owner will cause or permit or suffer to be done any act or omission which may be or become a nuisance or annoyance to or cause damage to other owners and occupiers for the time being. 7.On or about 8 October 2018, P recovered vacant possession of the Lower Premises from his tenant and discovered water seepage therein. On or about 11 October 2018, he lodged a complaint regarding the water seepage with the Management Office. On the same day, the Management Office relayed P’s complaint to D2 and both defendants had notice of P’s complaint. 8.In or about early October 2018, P also lodged a complaint regarding the water seepage with the Joint Office of the Buildings Department and the Food and Environmental Hygiene Department (“Joint Office”). On 8 November 2018, the Joint Office detected water seepage at the Lower Premises. It carried out colour water test to the drainage inlets at the Upper Premises (“JO Test”). 9.On 27 November 2018, P instructed his expert, Mr Hau Tung Ngai (“Hau”), to investigate the water seepage in the Lower Premises. Hau carried out some tests at the Lower Premises (“Hau’s First Inspection”). 10.On 8 December 2018, Hau carried out visual inspection at the Lower Premises (“Hau’s Second Inspection”). He was able to gain access to the Upper Premises for a brief visual inspection but was not allowed to conduct any test thereat (“Hau’s Brief Visit”). Hau compiled a report dated 28 January 2019 (“Hau’s First Report”). 11.By letter to P dated 4 January 2019, the Joint Office reported to P that the source of the water seepage of the Lower Premises could not be identified. 12.On 24 February 2019, the contractor (“JO’s Contractor”) engaged by the Joint Office carried out ponding test to the floor of Ds’ kitchen and bathroom as well as spraying test on the perimeter wall of the bathtub of the Upper Premises (“JO’s Contractor Tests”). 13.By letter before action dated 4 March 2019 (“Pre-action Letter”) enclosing a copy of the conclusion section of Hau’s First Report, P, through his solicitors, demanded Ds to carry out repair works at the Upper Premises to rectify the source of the water seepage and to compensate for P’s loss and damage. 14.P commenced the present action on 23 April 2019. On 5 June 2019, a full copy of Hau’s First Report was sent to Ds. 15.By letter dated 24 June 2019, the Joint Office reported that the source of the water seepage could not be identified despite the investigations of JO and JO’s Contractor. It suggested the parties to consider engaging their own contractors to carry out further investigations. 16.On or about 20 July 2019, P allowed Mr Raymond Wu Chi Cheung (“Wu”), the expert engaged by Ds, to enter into the Lower Premises to carry out inspection and tests he deemed fit. Wu attended the Lower Premises and carried out visual inspection and moisture content check at the Lower Premises (“Wu’s Inspection”). He also carried out visual inspection at the Upper Premises, the Flat Roof and the external wall of the Building. He compiled a report dated 18 August 2020 (“Wu’s First Report”). 17.In or around May 2020, the Management Office engaged a contractor to carry out repair works (“Wall B Repair Work”) on part of the external wall enclosing P’s room B and part of P’s balcony (“Wall B”). COURT ORDERS 18.Pursuant to the case management directions of the Master, the parties obtained leave to adduce expert evidence: Hau for P and Wu for Ds (collectively, “Two Experts”), to adduce the following expert reports:-
19.At the pre-trial review hearing on 1 March 2023, HH Judge MK Liu, with the consent of the parties, gave directions, inter alia, that:-
AGREED RELIEF 20.At trial, the parties adopted and confirmed the Statement of Agreed Relief lodged into court on 23 March 2023 (“Statement of Agreed Relief”). Mr Ernest Wong, counsel for P, further confirmed that no pre-judgment interest should be awarded for repair costs which had yet incurred. The only relief sought which is left to be determined is the claim for damages for distress, discomfort and inconvenience. 21.Initially P pleaded various causes of action in the statement of claim. At trial, Mr Wong sensibly confined the P’s claim to be based on breach of the DMC, the torts of nuisance and negligence. 22.At the pre-trial stage, both counsel were in agreement that if P can prove that the source of the water seepage was from the Upper Premises, liability will be established. That said, Ms Wong, counsel for Ds, took a pleading point and further took issue on Ds’ knowledge, an element required for establishing tort of nuisance, at trial. AGREED FACTS 23.At trial, the parties confirmed that the expertise and qualification of the Two Experts were not challenged. They agreed that the Two Experts are qualified to give expert opinions on the issues in dispute in this case. 24.All the photos and video produced by the parties were also agreed to have accurately depicted the conditions of the Two Premises and the Building as of the purported dates, including the photos taken by the Two Experts and those taken by P on 25 and 27 September 2019, 31 January 2020, 30 May 2020, 4 June 2020, 29 August 2020, 27 December 2020, 30 January 2021 (collectively, “Photos”) as well as the video-recording taken on 21 June 2020 (“Video”). 25.It is common fact that the Lower Premises has been damaged by active water seepage since around October 2018 and the damage continues. LEGAL PRINCIPLES 26.The parties are in agreement that the following legal principles apply in the present case:-
EXPERT EVIDENCE 27.In order to understand the arguments of the parties and the opinions given by the Two Experts, it is necessary to set out in some detail the circumstances under which the Expert Reports were compiled. HAU’S INSPECTIONS 28.Hau carried out two inspections for the purpose of ascertaining the source of water seepage. 29.During Hau’s First Inspection (on 27 November 2018), Hau carried out visual inspection, electrical moisture meter check, infrared thermographic scan, microwave scan (collectively, “Moisture Tests”) and water sample tests (“Water Sample Tests”) at the Lower Premises. He also conducted visual inspection, infrared thermographic scan and water sample test over the external wall (“Lightwell Wall”) at the light well (“Lightwell”) as well as visual inspection at the other external walls of the Building. Minor rainfall was recorded by Hong Kong Observatory (“HKO”) in the Tai Po region on 27 November 2018. 30.During Hau’s Second Inspection (on 8 December 2018), Hau carried out visual inspection without further tests at the Lower Premises and opined that the situation of the water seepage was substantially the same as that in his first inspection. He was allowed to conduct a brief visual inspection at the Upper Premises but his request for carrying out any test thereat was refused. No rainfall was recorded by HKO on that day. 31.On the basis of his findings in the two inspections, Hau complied Hau’s First Report (dated 28 January 2019). WU’S INSPECTION 32.Wu carried out one inspection. On 20 July 2019, he conducted visual inspection and electrical conductivity sensing to measure the moisture contents at the Lower Premises. He also visually inspected the external walls of the Building. An amber rainstorm signal was issued on that day. He compiled Wu’s First Report (dated 18 August 2020). AFFECTED AREAS 33.Generally the Two Experts had no serious disagreement on the affected areas of water seepage in the Lower Premises as illustrated in their reports which can be broadly classified as follows:-
CAUSE OF WATER SEEPAGE 34.As to the cause of the water seepage, P relies on the opinions given by Hau that:-
35.Ds disagree. They seek support from the opinions given by Wu. Wu did not positively identify any sources of water seepage but suggested that the seepage might have been caused by:-
DISCUSSION 36.By a close study of the Photos cross-referencing to the diagrams, layout plans and elaborations of the Expert Reports, I have no hesitation in accepting Hau’s opinion that the extent of seepage in the Lower Premises was extensive and serious which involved a large volume of water. 37.In assessing the arguments on the sources of water seepage, I have considered all the evidence and the parties’ submissions. I form the view that P has discharged his burden of proof of showing that the Alleged Sources of Seepage were the causes of Affected AB Areas for the following reasons. AFFECTED AREA A 38.The water seepage of Affected Area A was extensive and serious as demonstrated in the Photos. There have been numerous water marks. Flakes of plasters and concretes were found falling off from the ceilings and walls. Extensive cracks and exposure of rebars were seen on the high moisture content areas. The size and seriousness of the water-affected area subsided according to the distance from the ceiling of P’s bathroom. 39.Hau also referred to some photos, his infrared thermographic scan result and water sample test to justify that water frequently dripped down from around the outer layer of a pipe (“Subject Pipe”) (“Pipe-edge Area”), but not through the inner part of the Subject Pipe. The Pipe-edge Area was located at the proximity of the floor slab level of Ds’ bathroom and protruded from the external wall (adjoining Ds’ bathroom) to the Lightwell. 40.Hau’s observation is further evidenced by some of the Photos and the Video which specifically depicted water flowing from the Pipe-edge Area to the Lightwell. The seepage in this area continued after the inspections of the Two Experts. 41.Water was also seen dripping from an area (“Bathroom Dripping Area”) of the ceiling of P’s bathroom which was close to the Pipe-edge Area. Besides, water was further found leaking from an antenna socket (“Socket Area”) for television located in the concrete wall which separated P’s corridor and living room (the three dripping areas, collectively, “Three Dripping Areas”). 42.The pattern of the water seepage was elaborated in details by Hau and evidenced by the Photos and the Video. It also sits well with the results of the Moisture Tests, which detected large amount of water molecules had ingresses from Ds’ bathroom and penetrated through the concrete layer downwards to the ceiling of P’s bathroom which further spread into the surrounding areas of P’s bathroom. 43.The results of the Moisture Tests show that the moisture content of P’s bathroom was extremely high. Microwave scan detected high moisture content at all 3 layers of the concrete, to a depth of 30 mm, 70 mm and 110 mm (deeper in the concrete, closer to the Upper Premises) over the concrete ceiling of P’s bathroom. Almost the entire ceiling contained very high moisture content with multiple moisture content reading of 99.9. 44.The Moisture Tests show that generally the degree of the moisture content decreased with distance from the ceiling of P’s Bathroom. They support Hau’s opinion that water was spread to the nearby areas into P’s corridor, kitchen, living room, room A, room B. 45.In relation to P’s corridor, very high moisture content was also detected on all 3 different layers of the concrete ceiling above P’s corridor which connected to the bathroom and further to the kitchen. Some plasters were peeled away from the water-marked concrete ceiling of P’s corridor. There were also bulging plaster and water marks on the walls adjacent to the bathroom and to the kitchen. The level of moisture content was very high with multiple spots of reading of 99.9 recorded on the side near the bathroom and that near the kitchen. 46.In relation to P’s kitchen which was adjacent to P’s bathroom, large areas of water marks and mold were found on the concrete ceiling of P’s kitchen which was near the bathroom. Areas of high moisture content were detected at the ceiling particularly on the side close to P’s bathroom and corridor with multiple readings of 99.9. Some areas had detected relatively high moisture content on all 3 layers of the concrete. The signs and pattern indicated that water molecules had spread from the ceiling of P’s bathroom. 47.In relation to P’s room A, which was separated from P’s bathroom by the kitchen, its affected areas were relatively small with moisture content higher than 35 with signs of seepage were noticed in the concrete ceiling and the beam next to P’s kitchen. Higher moisture content was recorded in the beam than the ceiling. Moisture content was broadly detected on the 30 mm layer, but not deeper concrete. The pattern of the moisture content suggests that water spread from the direction of P’s kitchen. 48.In relation to P’s room B, which was next to P’s bathroom, the reading of the moisture content of affected areas was higher than 35 with signs of seepage were noticed in the concrete ceiling, the concrete wall and the beam next to P’s bathroom. Higher moisture content was generally recorded in the beam than the ceiling. High moisture content was detected on the 30 mm layer but not deeper. The pattern of the moisture content revealed that water spread from the direction of P’s bathroom. 49.Although some peeling off of plasters and development of mold was found in other areas of room B, only minimal moisture content (as 18.9, 19, 9.9 and 9.6) was detected in those areas which justifies Hau’s opinion that those damage might be resulted from high humidity due to poor ventilation. 50.In relation to P’s living room, signs of water seepage were noticed in the concrete beam next to P’s kitchen and the wall adjoining P’s corridor. High moisture content was detected at all 3 different layers of the concrete ceiling of those areas. The pattern reveals that water had seeped from P’s kitchen and the corridor. Water was also detected flowing from Socket Area. WATER DRIPPING AREAS 51.Hau’s opinion is further supported by the fact that water was seen dripping from both the Bathroom Dripping Area and the Pipe-edge Area, which were close to each other. The infrared thermographic scan conducted by Hau reveals that there was abnormal high moisture content at the Pipe-edge Area whereas the other parts of the Lightwell Wall were dry. 52.Water-dripping from the Socket Area was also evidenced by the water marks according to Hau’s inspections and was subsequently confirmed by the Photos and Wu. 53.The drippings continue as evidenced in the Photos and the Video. WATER SAMPLE TESTS 54.According to the Water Sample Test carrying out by Hau, the water leaking in P’s kitchen, dripping from the Bathroom Dripping Area and from the Pipe-edge Area (collectively, “Three Test Areas”) shared the same chemical properties: chloride in the amount of 0 mg/L and ammonia in the amount of 0.25 mgL. 55.Such test results support Hau’s opinion that the water seepage in the Affected Area A and the water leaking from the Pipe-edge Area were originated from the same source of water seepage as they were all fresh water (without chloride) with only trace amounts of ammonia of 0.25 mgL. 56.Hau’s test results also show that there was chloride in the amount of 3,000 mg/L in the water used in the water closet, whereas there was no chloride in the water samples collected from the Three Test Areas. Such test results rule out the water closet and salty water facilities of the Building, which flowed salty water, being the source of water seepage. 57.Looking at all the matters in the round, Hau’s opinion on the cause of water seepage of Affected Area A is logical in reasoning and well-supported with evidence, photos, test results and objective facts. DS’ CHALLENGES 58.Wu has compiled lengthy reports to challenge Hau’s evidence. While I am loath to accede to Mr Wong’s request to take into account the general credibility and performance of Wu giving expert evidence in other decided cases, I nevertheless share Mr Wong’s view that Wu’s expert evidence in the present action is long-winded, repetitive, unfocused and not readily comprehensible. 59.Wu sought to challenge Hau’s opinion in almost all aspects. He did not identify any real source of water seepage of the Lower Premises, but rather, attempting to suggest a number of other possible sources of water seepage, which are unconvincing for the following reasons. 60.It is noteworthy that Wu inspected the Lower Premises seven months after Hau’s inspections. During that inspection, he basically carried out visual inspection and electrical conductivity sensing to measure the moisture contents at the Lower Premises. No serious water tests were conducted by him to challenge the test results or opinions of Hau. He only managed to compile his report more than one year after his inspection. 61.His observation on the condition of the Upper Premises was kept minimal in his reports. Neither serious moisture content check nor water test was carried out at the Upper Premises. PIPE-EDGE AREA 62.Despite Wu sought to challenge almost all the aspects of Hau’s evidence, he chose not to comment on the important fact that water was dripping from the Pipe-edge Area to the Lightwell. He completely silent on Hau’s opinion that the Pipe-edge Area was located at the proximity of the floor slab level of Ds’ bathroom and protruded from the external wall adjoining Ds’ bathroom to the light well, notwithstanding that such fact formed part of the main foundation of Hau’s opinion that the defective freshwater facilities and defective waterproofing facilities of D’s bathroom was source of water seepage. Wu saw it fit to leave it unchallenged. OTHER WATER TESTS 63.Wu criticized Hau to have failed to conduct other tests as water flow meter test or sample control test at the Upper Premises. Ms Wong also seeks to rely on the case of Hui Ling Ling v Sky Field Development Limited to argue that Wu’s suggested water tests were accepted in finding the source of water seepage in other decided cases. 64.Suffice it to say that that case is factually distinguished from the present case. Ms Wong is unable to refer to any authority which established the principles that the tests as suggested by Wu are indispensable which must be invariably adopted for determining source of seepage. 65.As contended by Mr Wong, water tests are subject to many variables and have their weaknesses which are not universal tests applicable to all circumstances. A flow meter test is not sensitive to slow flow rate of a water meter and a negative result of dye test is not conclusive as respectively explained in pages 51 and 23 of the Professional Guide to Water Seepage issued by the Hong Kong Institute of Surveyors (“Professional Guide”). 66.In relation to Wu’s complaint that the Water Sample Test should be carried out by chemist in laboratory and be approved by the Water Supplies Department instead of by test papers by Hau, I accept Mr Wong’s submission that such complaint is baseless as the use of test paper and the water sample tests as adopted by Hau is well-recognized as common test to distinguish between fresh water and flushing water by assessing the chemical properties of the water so as to eliminate certain causes of seepage by the Professional Guide at §3.2.10. 67.Indeed, Hau expressly stated that the purpose of the Water Sample Tests was to determine the nature of the water so as to find out whether the water seepage sourced from the flush water facilities for the water closet by reference to the degree of ammonia and chloride in the water. 68.Wu’s other complaints that Hau had not accounted for the procedure of the Water Sample Tests and that no control samples of freshwater and plaster were taken from other areas closer to that of the analyzed samples for comparison are also baseless. They simply ignore Hau’s detailed descriptions of the areas where he collected the samples from as well as how he conducted the tests, and the relevant photos exhibited in his reports. 69.Wu also failed to justify as to why an engagement of a chemist or taking of control sample is absolutely required and the lack of them has rendered Hau’s conclusion unreliable. After all, Hau’s opinion was not merely based on the Water Sample Tests. The test result was only one of the factors he considered. Ds should not take his findings out of context. 70.In my view, Ds are unable to substantiate their attack on the reliability of the Water Sample Tests. They could not logically explain how the methodology adopted by Hau is unreliable, bearing in mind that it is incumbent upon the defendant to justify his challenge: 皇河實業有限公司 v Wan Chiu Yuen & Anor, DCCJ 4448/20211, unreported, 18 January 2013 at §§14-19. HAU’S SECOND INSPECTION 71.Wu also complained that Hau had not carried out any test during Hau’s Second Inspection so as to compare the moisture contents of the Lower Premises between Hau’s First Inspection on a rainy day and Hau’s Second Inspection on a dry day for the purpose of ruling out rainwater being the source of seepage. 72.Wu however failed to justify how this would negate the detailed reasoning and findings of Hau in his reports. Wu’s complaint also ignores the fact that only minor rainfall in the region of Tai Po was recorded on the day of Hau’s First Inspection. There is indeed no concrete evidence to suggest that it rained before Hau’s First Inspection to the extent that necessitates a further detailed inspection for comparison between that day and a dry day. 73.Hau clearly stated in his report that he had conducted visual inspection at the Lower Premises in his Second Inspection and found the condition of it was substantially the same as that in Hau’s First Inspection. Ds produced no factual evidence to challenge Hau’s proposition. 74.In my view, Wu failed to justify how those tests are indispensable which invalidate Hau’s reasoning. JO TEST 75.Ds seek to rely on the negative results of the JO Test and the JO’s Contractor Tests to exclude the drainage pipes and waterproofing system in Ds’ bathroom as the sources of water seepage. I am not convinced. 76.The Joint Office only reported that the tests carried out by it and its contractors were unsuccessful. Notwithstanding that, they expressly concluded that they were unable to identify the source of the water seepage. They did not actually rule out the drainage pipes and waterproofing system in D’s bathroom as the sources of water seepage of the Lower Premises. 77.In the absence of any evidence as to how the JO Test and the JO’s Contractor Tests were conducted, of the basis of the conclusion of the test results (other than that which can be gleaned from the correspondences with the Joint Office), of any evaluation of the reliability of such test results by the Two Experts, the results of those tests do not lend any support to Ds’ case. 78.As Mr Wong contends, the dye tests are not always successful as recognized in the Professional Guide as explained above. It is also repeatedly held that negative results of the tests conducted by the Joint Office alone are not conclusive: Sun Kwong Chiu Chow Restaurant Limited v Skyhorse Development Limited t/a Gala Association, DCCJ4886/2015, unreported, 15 April 2019. ALLEGED “HORIZONTAL PIPE DUCT” 79.Wu accused Hau of failing to take into account the Addition. Premised on the fact that the height of the headroom of P’s bathroom and corridor (2.7 m) was lower than the other areas of the Lower Premises (2.9 m), he suggested that there might be a horizontal pipe duct accumulating pipe works hidden in the Addition. 80.In my judgment, Wu’s suggestion is, at best, a kind of guesswork. He actually confessed that the structure of the Addition remained unknown. He could gain no access to any structure plan or to the inner part of the Addition for inspection. Absent any evidence to indicate the existence of any pipes inside the Addition, his suggestion was merely multiple pure speculations. He speculated that there might be a horizontal pipe duct hidden in the concrete and that it was defective causing water seepage. 81.Dramatically, Wu later changed his position by stating that “From the site inspection on 20 Jul 2019, there “is” a horizontal pipe duct area in G/F” without any justification or corroborated evidence. At trial, Ms Wong sensibly confirmed that such statement was not relied on by Ds and what was inside the Addition remained unknown. 82.On the other hand, I find Hau’s opinion relating to the Addition convincing. First, there is indeed no evidence to indicate the inner part of the Addition contained pipes. The readings as gathered from Hau’s microwave scan at the ceiling of P’s bathroom and corridor were normal with no indication of existence of pipe duct. 83.Second, a visual inspection at the Lightwell showed that pipes were extended from the floor slab level of Ds’ bathroom instead of the Addition. 84.As stressed by Hau, even if there were pipes embedded in the Addition, which he did not agree, those pipes were part and parcel of the water facilities of the Upper Premises solely for Ds’ use and benefit. They could not be common facilities of the Building for the common use and benefits of other owners as defined in Clause 5 of the DMC because all pipes work that were for common use were installed outside the Lightwell. There was simply no communal pipe in the concrete area beneath the bathroom of the Upper Premises. 85.Wu was not able to adduce any solid evidence to challenge Hau’s opinion or to point out that any communal pipe had been extended out from the Upper Premises. 86.Third, as to Wu’s criticism of Hau’s application of microwave scanning and the use of 70 mm and 110 mm sensors, I share the view of Mr Wong that such criticism is based on the unjustified multiple assumptions that some horizontal pipe ducts and/ or metals were embedded in the 0.2 m concrete which were thicker than 70-110 mm. 87.Further, as elaborated by Hau (and not rebutted by Wu), microwave scan is a test that has been widely accepted in the industry as recognized in §4.2.5 of the Professional Guide. Hau collected readings from almost the entire ceiling and an extensive area of concrete with all the readings were found normal. Absent any solid evidence to rebut Hau’s evidence, I accept Hau’s opinion that he had already collected adequate data to ascertain the location of the water within the concrete and those data are reliable. EXTERNAL WALLS 88.Wu also suggested that given the existence of some defects on the external walls of the Building and of some water moisture contents at the lower part of some of the walls at the Lower Premises (while the middle and/ or upper part of the walls were dry), infiltration of rainwater through the external walls was the possible source of water seepage. 89.Having studied each of the alleged defects Wu had referred to in the expert reports by making reference to the Photos, the diagrams and the layouts carefully, I form the view that the alleged defects at the external walls were in fact minor cracks which could not account for the serious water seepage in the Lower Premises. Amongst, his alleged defects which were located at the external wall outside P’s room A, Ds’ room A, the Lightwell Wall were small cracks, even water marks. The other defects he referred to were indeed far away from the Lower Premises. 90.Second, apart from merely noting the alleged defects in the external walls, Wu could not explain how the alleged defects, which were indeed small cracks, could have caused the large volume of water ending up with the serious and extensive seepage in the Lower Premises. 91.Third, Wu could not identify any seepage path. Nor could he explain how water could go all the way from those cracks at the external walls through P’s bathroom, kitchen, Room B and further extend to the corridor and the living room. The external walls in question were not in the close proximity to many high moisture content areas of Affected AB Areas at all. 92.Fourth, some defects referred to were indeed far below the ceilings of the Lower Premises. Wu could not elaborate as to how water could find its way up to the wall, rise to the ceiling and further run all the way through to the center of the Lower Premises. 93.Fifth, Wu’s another suggestion that there were defective electrical and lighting fittings on the external wall which might have allowed water to enter the Lower Premises is another illogical guesswork without slightest evidence in support. LIGHTWELL WALL 94.In my judgment, Hau’s observations are more logical which I now turn to. The Lightwell Wall is an enclosed area which is not large. I am loath to accept that such a limited enclosed area would have allowed an ingress of a large amount of water into the concrete wall and further into the centre of the Lower Premises. 95.During Hau’s First Inspection, Hau examined the Lightwell Wall and observed that other than the Pipe-edge Area, no water was actually seen seeping from the other areas of the Lightwell Wall, and, the external wall outside Ds’ bathroom and kitchen and that outside P’s bathroom and kitchen were dry with no apparent damage. 96.As mentioned above, Wu failed to rebut Hau’s observation that the water dripping from the Pipe-edge Area was from the floor slab of Ds’ bathroom. Nor did he challenge Hau’s opinion that such water seeping shared the same source of water seepage of Affected Area A which originated from the leakage of defective freshwater facilities and defective waterproofing facilities of Ds’ bathroom. 97.Even though Ms Wong attempted to suggest that the leaking water “might be” due to a suspiciously damaged pipe (“Alleged Broken Pipe”) protruding from the external wall adjoining the bathroom and the kitchen of the Upper Premises and water might have dropped down from that pipe along the external wall, such contention is directly contradicted to the fact that water was as a matter of fact seeped from within the external wall at the Pipe-edge Area. There was indeed no concrete evidence that the Alleged Broken Pipe conveyed water. Not even a water mark was found in the surrounding area of it. 98.Location-wise, the Alleged Broken Pipe was located outside the external wall of the kitchen, which was entirely a different external wall from that of the bathroom, and the Alleged Broken Pipe lied on the left side of the said wall which was far from the external wall of the bathroom, which was on its right. EXTERNAL WALLS AT ROOM A AND ROOM B 99.As to the external wall at room A and that at room B (Wall B), the defects identified by Wu were minor cracks and far away from the higher moisture areas of the Affected AB Areas. No significant signs of water seepage were detected. 100.In relation to the seepage and damage found in P’s room A, they were at the beam on the side adjacent to P’s kitchen. The Moisture Tests revealed that the source plainly came from the direction of the kitchen and in deeper layers of the concrete ceiling, there was almost nil moisture content from the side of the external wall. 101.As to Wall B, the reasoning behind Hau’s conclusion is logical. He inspected and took moisture contents readings at two points on the inner side of Wall B. He explained that even though there were some spots of dampness at that wall, there was no water seepage in other areas of it since the moisture content was lower than 35 and were apparently not related to the seepage in question. 102.Hau’s opinion was further supported by his inspection of the ceiling of P’s room B. No high moisture content was detected in areas farer from the wall adjacent to P’s bathroom and closer to the external wall. Moisture Tests revealed that the source of water was plainly from the side of P’s bathroom and not from the other side of the external wall. Even the MC monitor check carried out by Wu revealed that the areas of higher moisture on the concrete ceiling of P’s bedroom B lied on the side of bathroom. WALL B REPAIR WORK 103.Ds refer to the Wall B Repair Work for proof of water seepage originated from the defectiveness of Wall B. Such contention is unconvincing by reason of matters set out above. 104.Such contention was not based on any actual inspection or tests on Wall B Repair Work but simply on an email of the Management Office to P in reply to an alleged complaint of water seepage in Wall B as well as some piecemeal tender documents purportedly for tenders to repair the rusty rebars and apply waterproofing materials to Wall B. 105.The circumstances under which the said tender documents were compiled and the authors of them were not verified. The nature, purpose and scope of the Wall B Repair Work and whether such works were carried out according to those purported tender documents remained unknown. 106.The Wall B Repair Work was carried out subsequent to the inspections of the Two Experts. Such work was limited to the external wall enclosing P’s room B and a small part of P’s balcony only. The work was indeed equal to and below the level of the concrete ceiling of the Lower Premises. 107.More importantly, even after the completion of the work, water seepage of Affected AB Areas persisted as illustrated in the Photos and the Video. Water continued dripping down from the Three Dripping Areas. Further, the damage of the Lower Premises and mold increasingly enlarged as time went by. 108.I also accept Mr Wong’s submissions that a request to repair Wall B by P or his father is neither here nor there. Neither of them had professional knowledge to ascertain the source of water seepage. The repair work was carried out by the Management Office without admission of liability. Even if they thought that there was water seepage at Wall B, which P denied, their own beliefs would have no impact on the actual source of water seepage of Affected AB Areas. Their subjective views would not change the objective facts. 109.I should not neglect the fact that there were more than seven months between Hau’s inspections and Wu’s inspection. During the period, the unceasing water seepage coupled with poor ventilation of the Lower Premises could have contributed to the increasingly extensive dampness and mold of the Lower Premises. 110.By reason of matters aforesaid, Wu’s findings of dampness and mold in other areas of the Lower Premises, in particular, the lower parts of the walls, cannot brush aside the findings of Hau. HOUSE 23 111.Wu also contended that Hau had not ruled out House 23 being a possible source of seepage of Affected Area A. That said, Wu could not identify a possible water path or seepage sign to justify his contention other than saying that House 23 was near the Two Premises with a bathroom and a kitchen. 112.There is indeed not a slightest evidence to indicate how huge amount of water could have flowed from House 23 causing the extensive damage in Affected AB Areas, not to mention that House 23 was indeed far away from the high moisture area of Affected AB Areas. Wu’s suggestion is unjustified. OFFICE BUILDING 113.Likewise, Wu’s another suggestion that the toilet (“Toilet”) on the first floor of the Office Building was a possible source of water seepage is also unjustified. He neither gave any logical reasons nor pointed to any solid facts to justify his suggestion. No possible seepage route or seepage sign was identified. 114.The Toilet was far away from the higher moisture areas of Affected AB Areas. The seepage of Affected AB Areas was serious and water was detected seeping out from the Three Dripping Areas which was at a distance of several meters away from the Toilet. The Toilet could not be the cause of the water seepage of Affected AB Areas. UNDERGROUND WATER, RAISING DAMP AND CONDENSATION 115.Wu further suggested that underground water, raising damp or condensation were possible causes of the seepage. He sought support from his findings in his inspection that:-
116.In gist, Ds asserted that water should have percolated from the ground, not from above. The Base and the damp proof course of the Lower Premises might have been damaged which would give rise to rising damp. Underground water could also have infiltrated to the floor of the Lower Premises through the Base. The rising dampness at the lower portion of the walls of the Lower Premises rose up. 117.In my judgment, the absurdity of such suggestions and their lack of logic hardly require further analysis. It is inherently improbable that underground water, raising damp (from the Base, the floor or from some of the lower part of the walls) or condensation could be the source of water seepage with an extensive and serious area over the ceiling of the Lower Premises bearing in mind that the ceiling height of the Lower Premises was no less than 2.7 m or 2.9 m from the floor level, still less of the moisture content of an extensive area of the ceiling was extremely high at the level of more than 110mm. 118.Such suggestion owed an explanation as to how a large amount of the underground water, dampness, condensation could have risen excessively up into the walls or the air and moved upwards to the ceiling and further flowed to other parts of the Lower Premises. The fact that there was moisture content and mold growing at the lower part of the walls and a trace of water puddle on the ground in one of the rooms or the cracks of the Base is not a valid answer. 119.By reason of matters set out above, I accept Hau’s opinion and reject Wu’s opinion. I am convinced that P has duly discharged his burden of proof in showing on a balance of probabilities on evidence that the water seepage at the Affected Area A was caused by leakage in the defective freshwater facilities and the ineffective waterproofing facilities in D’s bathroom at the Upper Premises. AFFECTED AREA B 120.Hau’s opinion on the cause of the water seepage of Affected Area B can be summarized as follows: -
121.I find Hau’s opinion convincing. First, the photos taken during Hau’s Brief Visit at the Upper Premises support his findings. It is beyond dispute that the flooring of Ds’ balcony where Ds’ balcony door lay was defective. The sealant at the bottom of Ds’ balcony door frame and its surrounding areas were seriously damaged. The effectiveness of the sealant and the waterproofing work preventing rainwater from permeating into the concrete ceiling of P was undoubtedly compromised. Naturally water could permeate through the door frame and the damaged floor areas into the ceiling of P’s balcony and living room. 122.Hau’s opinion is further justified by Hau’s Moisture Tests. The microwave scan test reveals that high moisture content was detected in all 3 levels of part of the concrete ceiling of the P’s balcony (30 mm, 70 mm and 110 mm). Such test results support Hau’s opinion that water molecules had permeated from the concrete floor of Ds’ balcony through the concrete downwards to the ceiling of P’s balcony. 123.The microwave scan also revealed that high moisture content was detected at the direction of the balcony into the living room. It can be seen from the scan result reading of 70 mm and 110 mm that such high moisture content did not originate from the direction of water facilities. 124.According to the degree and the pattern of the moisture content, it can readily be seen that the source of seepage focused on the intersection of P’s ceiling between the balcony and the living room where the Ds’ defective door frame and the surrounding damaged areas were located. 125.The photos of the external wall taken by Hau evidence that the external wall between P’s balcony and D’s balcony was in good condition without any significant cracks or damage. 126.In the premises, there is solid evidence to prove that water molecules permeated from Ds’ defective door frame and the surrounding damaged floor areas through the concrete between the Upper Premises and Lower Premises to Affected Area B. D’s CHALLENGES 127.Wu sought to attack Hau’s opinions but met with no success. His repetition of his several arguments relating to the source of seepage of Affected Area A does not take his arguments relating to Affected Area B any further. For my analysis as elaborated above which I should not repeat here, his criticisms did not logically explain as to why and how Hau’s methodology, reasoning, use of tests were flawed which rendered Hau’s opinion unreliable. 128.Wu further argued that there were defects at the external walls of the balconies of the Two Premises which might be the source of water seepage of Affected Area B. By a close study of all the Photos before me, none of the Photos depicted any significant defects at those walls. Even for those defects relied by Wu, they could not account for the serious water seepage in Affected Areas B which was widespread and deep in the P’s concrete ceiling. 129.Wu specifically relied on two photos depicting some defects at the external wall where water was described as “cascading down” along the external wall to justify his complaint. It is worth-mentioning that those two photos were taken more than seven months after Hau’s inspections and on a day the amber rainstorm warning was issued. 130.More importantly, the alleged defects as depicted in the said two photos were minor and in fact on the external wall outside P’s balcony. It is difficult to see how a large amount of water could have flowed from such minor defects and then found its way up to the concrete ceiling of P’s balcony and further to the ceiling of the living room. 131.Wu’s another suggestion that the water seepage of Affected Area B might be caused by the fact that P’s balcony was an open area subject to weather and rain is unpersuasive. Such suggestion gives no valid answer to the cause of water seepage of the ceiling of P’s indoor living room. It also neglected the fact that P’s balcony which was immediately below the concrete floor of the Ds’ balcony, albeit not an indoor area, was partly sheltered by P’s concrete ceiling and partly by a sizable awning or canvas canopy. 132.Further, Hau’s Moisture Tests revealed that the areas with high moisture content lied with the inner side of the ceiling of P’s balcony. Water molecules were found deep inside the concrete ceiling which was as deep as 110 mm and in the area immediately next to the indoor area. If the seepage in question was caused by rainwater from the open area of P’s balcony, the water seepage should be more serious on the outside area instead of the inside area of the ceiling of P’s balcony. His suggestion also runs counter to the fact that the seepage of the ceiling of P’s living room which was far away from the open area of the balcony was serious. 133.For reasons set out above, Wu’s arguments on the defects of the external wall and the difference in size between P’s balcony and Ds’ balcony being the cause of water seepage of Affected Area B fall away. 134.I have also taken into account of the implication of the Wall B Repair Work. My analysis in this aspect has been set out above which I do not repeat here. Simply the repair work was carried out on part of the external wall at the Lower Premises, and, that part of the wall could not account for the large volume of water seepage of Affected Area B which focused on the intersection between the ceiling of P’s living room and balcony. 135.As to Ds’ similar arguments on other possible sources of water seepage due to underground water, raising damp, condensation, etc, I adopt my analysis above which should not be repeated here. OTHER SUGGESTIONS 136.During the trial, Ms Wong attempted to explore other possibilities of the sources of water seepage by referring to a trace of water puddle on the floor, some water marks or mold on walls, the wirings for television setting, etc. She nevertheless could not refer to any solid factual or expert evidence in support, or, the evidence she referred to do not actually support her allegations. I decline the invitation to embark on a last minute speculative brainstorming exercise in the absence of factual or legal basis in support. 137.Ms Wong also sought to rely on the case of Incorporated Owners of Hong Leong Industrial Complex & Anr v HL Resources Ltd & Anr [2009] 4 HKLRD 692 to argue that Ds are not liable to repair any part of the building which is intended for common use and enjoyment. Such argument is misconceived. P’s complaints are not premised on any facilities or waterproofing system which were or were intended for common use and enjoyment. All the evidence points to the fact that all facilities or waterproofing system which gave rise to the water seepage of Affected AB Areas served the Upper Premises only. CONCLUSION ON SOURCE OF WATER SEEPAGE 138.Having considered all the evidence before me and the submissions of the Parties, I am convinced that Hau’s opinions are logical and well-justified with objective facts, tests and site inspections. Wu was unable to rebut Hau’s evidence and opinion. 139.I am satisfied that P has discharged his burden of proof in showing on a balance of probabilities that Affected Area A was caused by water leakage in the freshwater facilities of Ds’ bathroom and the defective waterproofing facilities of Ds’ bathroom. Affected Area B was caused by the defective flooring of Ds’ balcony and the defective waterproofing facilities of Ds’ balcony. 140.I am not persuaded that there have been other possible sources of water seepage which have caused the damage of Affected AB Areas. Undoubtedly, Wu as the expert witness of Ds has no burden to identify the cause of water seepage. It is nevertheless unhelpful for Wu to brainstorm the many highly speculative possibilities without objective facts or scientific tests in support. 141.While Wu criticized almost all aspects of Hau’s evidence, he chose to be almost completely silence on the fact that water was dripping from the Pipe-edge Area, notwithstanding that that was one of the facts Hau heavily relied on. Besides, his description of the condition of the Upper Premises in the Expert Reports was minimal, if not none. 142.Even though no water tests had been conducted at the Upper Premises by P, this court is in a position to find out the source of the water seepage with all the evidence before me. Hau’s evidence is sound and fair. I accept Hau’s opinion. PLEADINGS 143.Ms Wong unexpectedly took a pleading point at trial. She contended that P’s pleaded case should be limited to water seepage originated from the water supply pipes, the flooring and/or the waterproofing layers at the Upper Premises which could not extend to cover water seepage in the freshwater facilities of Ds’ bathroom as identified in Hau’s First Report. 144.No doubt Ms Wong’s contention met with immediate strong resistance from Mr Wong who understandably complained that Ms Wong’s contention in effect amounted to a complete retreat from Ds’ unconditional and unqualified agreement to the Statement of Agreed Relief. 145.In any event, Ms Wong’s contention cannot take the defence case any further. First, her argument on water facilities related solely to Affected Area A. It has no impact on the liability relating to Affected Area B. Second, the defective waterproofing facilities of the Upper Premises which failed to prevent water permeating from the Upper Premises to the Lower Premises is sufficient to hold Ds liable for damages P suffered for Affected AB Areas. 146.Further, I accept Mr Wong’s submissions that Ms Wong’s complaint of lack of plead of the defective water facilities of Ds’ bathroom has in substance overly emphasized some of the particulars given in the Statement of Claim and in effect brushing aside the other pleaded facts therein. 147.On a proper reading of the Statement of Claim, P pleaded that the Upper Premises was the source of water leakage of the Lower Premises. It expressly pleaded that Ds had wrongfully caused and permitted water to seep from the Upper Premises through the floor, floor slabs or concrete levels into the ceiling of toilet, walls and the external walls of the Lower Premises and the nearby areas. 148.Further, the Statement of Claim specifically referred to and relied on Hau’s First Report for identification of the water seepages of the Lower Premises and the cause of them. It also pleaded that Ds were duly notified of P’s reliance on the said report with a copy of it sent to Ds on 4 March 2019 demanding the repair of the water seepage problem as identified in the said report. 149.The pleaded facts of the Statement of Claim should be read together which expressly cover the source of seepage as identified in Hau’s First Report. It has given fair notice to Ds of P’s case which has to be met and of the issues on which the court will have to adjudicate. 150.Ms Wong has not alluded to any prejudice or difficulties occasioned by her alleged lack of pleadings. The reality is the Pre-action Letter with an extract of Hau’s First Report dated 4 March 2019 had been sent to Ds. On 5 June 2019, P served a full copy of the report to Ds. 151.Following the filing of the Statement of Claim, the present action then went through a series of case management hearings. Hau’s First Report was adduced as P’s evidence pursuant to the court order. To this, Ds sought leave and obtained an order to adduce Wu’s expert reports, which challenged almost all aspects of Hau’s First Report. Without prejudice meetings were held between the Two Experts. Joint expert reports were filed. 152.No striking-out application has ever been made by Ds. Rather, Hau’s opinions on the source of the water seepage of the Lower Premises were regarded as the issues in dispute which formed the foundation of arguments in the expert reports and the factual witness statements. 153.At the pre-trial review hearing, no pleadings issue was raised. Instead, the Statement of Agreed Reliefs, which is substantially premised on the opinions given in Hau’s First Report, was unconditionally agreed between the parties. 154.Viewed in this light, the issues in dispute arising from the Statement of Claim were clearly defined without any disagreements between the parties or their experts throughout the proceedings until the present challenge raised by Ms Wong at trial. Accordingly, the Ds should not be allowed to change its stance without justification. I find Ms Wong’s contention unsubstantiated. 155.Given my finding that the Upper Premises being the source of the water seepage of the Lower Premises, it follows that the Ds are liable in both torts of negligence and breach of the DMC. Indeed, it is unquestionable that the proximity between the two premises gave rise to a duty of care between neighbour to found an action in negligence and that Ds were in breach of the provisions of the DMC mandating Ds to keep the Upper Premises in good conditions and not to cause damage to his neighbour. NUISANCE 156.At trial, Ms Wong nevertheless disputed the liability of nuisance by taking issue on the element of knowledge. 157.There is no disagreement that in private law of nuisance, the plaintiff must prove that, in allowing the nuisance to continue, the defendant has actual or constructive knowledge that seepage of water originated from the defendant’s property. Once the defendant knew or should have known that water seeped from his property into another person’s property, he must remedy the water seepage problem without unreasonable delay: 張秀玲及吳炳漢 v 鄭禮莊, CACV 268/1998, unreported, 9 April 1999. 158.On the evidence before me, it is clear that water had continuously seeped from the Upper Premises into the Lower Premises causing damage to the latter. Ds allowed the water seepage continue notwithstanding P’s repeated complaints by himself, through the Management Office, his solicitors as well as the expert reports prepared by Hau. 159.It is D2’s own evidence that he was notified by the Management Office about P’s complaint of water leakage from the Upper Premises (with photos of water damage provided) as early as in October 2018. By the Pre-action Letter dated 4 March 2019 with an extract of the conclusion section of Hau’s First Report annexed thereto, Ds were notified of P’s complaint prior to the commencement of the present action. A full copy of Hau’s First Report was provided to Ds upon request on 5 June 2019. 160.Even after the commencement of these proceedings, Ds were given an opportunity to adduce expert evidence and to gain access to the Lower Premises for tests and inspections they found fit. Ds however chose not to take any actual step to remedy the situation. 161.Ds seek support from the negative test results of the tests conducted by the JO Office and its contractor to argue that Ds had factual basis to believe that the Upper Premises was not the source of water seepage. As explained above, the implications of those test results should not be overemphasized. It is beyond doubt that the JO Office unequivocally and specifically concluded that the source of the water seepage remained unidentified. It did not actually rule out the probability that the Upper Premises was the source of water seepage. Those test results do not lend any support to Ds. 162.Thus analyzed, I have no difficulty in finding that Ds knew or should have known the likely source of water seepage was the Upper Premises as identified in Hau’s expert reports. They nevertheless chose not to remedy the situation despite repeated requests. RELIEF 163.In coming to the conclusion that Ds have been in breach of the DMC, negligence and nuisance, the plaintiff is entitled to damages for the loss and damage suffered as a result of the water seepage. In view of Ds’ continued denial of liability and the solid evidence that the water seepage is on-going, a mandatory injunctive relief for the protection of the Lower Premises is required. I agree to make an order in terms of the Statement of Agreed Relief as agreed between the parties. 164.The only item left to be decided is P’s claim for general damages conventionally known as inconvenience, discomfort and distress. P says that the water leakage has consumed his time and effort in attending the water seepage and the dripping water from time to time, liaising with related parties in order to solve the water leakage, instructing estate agents for finding prospective tenants and pressure caused by Ds’ uncooperative attitude in remedying the seepage. 165.General damages for inconvenience, discomfort and distress is recoverable under the law of private nuisance. Besides, such head of damages can also be awarded in a breach of contract action. In John So v Lau Hon Man [1993] 2 HKC 356, the Court of Appeal awarded such head of damages in the breach of deed of mutual covenant action which was premised on water seepage from neighouring property. The rule that there is no scientific way of translating inconvenience and discomfort into a sum of money but the sum has to be conventional is well elaborated in that case. 166.Mr Wong has referred me to a line of decided cases in that such head of damages were awarded in addition to full compensation of loss of rental income and repair costs even though the plaintiffs were not occupiers of the water-damaged properties, which were rented out to third parties. In Chau Chung Mei v Leung Ying Ngai DCCJ 4062/2012, unreported, 29 September 2014, the seepage had lasted for about 3 years and HK$20,000 was awarded. In Tsai Hsiu Yun v Lim Goine alias Lam Mui Kaw, DCCJ 862/2015, unreported, 22 August 2016, the situation of the plaintiff was very similar to Chau Chung Mei and HK$20,000 was awarded. In Ieong Cheong Kitt v Hossain M Akhtak [2018] HKDC 1285, the seepage had lasted for more than 2 years and HK$20,000 was awarded. 167.In the present case, P did not live in the Lower Premises and his stress and inconvenience caused by the water seepage would not have been as serious as a residing occupier. He was, however, forced to return to the Lower Premises, from time to time, to attend to the water dripping, clean up the molds, plasters and concretes, monitor the development of the water seepage and attempt to stop the water seepage. 168.I am convinced that P is entitled to general damages under this head. It is a recoverable item in water seepage cases. There is no scientific way of translating inconvenience and discomfort into a sum of money and it has to be a conventional sum. Taking all the relevant matters into account, I am of the view that HK$30,000 is a fair assessment. ORDER 169.I order that: -
170.I also order that interest shall be awarded as follows:-
COSTS 171.I make a costs order nisi that the defendants do pay the plaintiff’s costs of this action, including all costs reserved, to be taxed if not agreed, with certificate for counsel. This costs order nisi shall become absolute in the absence of application to vary by summons within 14 days.
Mr Ernest Wong, instructed by KCL & Partners, for the plaintiff Ms Emma Wong, instructed by K M Lai & Li, for the 1st and 2nd defendants | |||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 2004/2019