Read the full judgment text of HCA 012235/1998 on BabelCite. This High Court CFI judgment was delivered on 28 January 2000 before Cheung J (P. Cheung).
Tort – nuisance – water leakage – liability of upper-floor owner – whether source of leakage proved – Civil Liability (Contribution) Ordinance (Cap 377) ss.5, 7 – settlement with one tortfeasor and apportionment against another – damages for inconvenience – quantum. The plaintiffs owned Flat 26A at Fullview Garden and sued the 1st defendant, the owner-occupier of Flat 27A immediately above, for damages arising from severe and prolonged water leakage into their flat between 1996 and 1998. The 2nd defendants, who acquired Flat 27A in January 1998, settled the plaintiffs' claim for HK$75,000, after which the leakage ceased following replacement of the piping. The court held that the plaintiffs had proved the source of leakage was the 1st defendant's flat, applying the principle in 張秀玲及吳炳漢對鄭禮莊 (CACV268/98) that there is no presumption that leakage necessarily comes from the flat above. The 1st defendant had, in breach of the Deed of Mutual Covenant, installed an additional toilet and wash basin; the new toilet soil pipe joint was leaking and the wash basin supply pipe had been deliberately cut off; and the most severe leakage in Bedroom No.1 of the plaintiffs' flat was directly below the illegally constructed wash basin. Mr Cullen, the chartered surveyor instructed by the plaintiffs, gave expert evidence accepted by the court. The court rejected the 1st defendant's argument that the settlement with the 2nd defendants precluded further pursuit of the claim, given the operation of sections 5 and 7 of Cap 377. Applying Foskett on The Law and Practice of Compromise (4th Ed.), the court apportioned HK$50,000 of the HK$75,000 settlement to damages and HK$25,000 to costs referable to the 2nd defendants. Damages were assessed at HK$55,380 for the cost of renovation works (a quotation obtained in January 2000) and HK$80,000 for inconvenience and distress, in reliance on Lo Yu Chu v. Kam Fu Lai Development Co. Ltd [1994] 3 HKC 18, John So & Ano. v. Lau Hon Man (Civ. App. No.110 of 1993) and Chan Fei Lung v. Mansion Products Ltd & Ors. [1990] 1 HKC 504, rounded up to HK$130,000. After deducting the HK$50,000 settlement credit, judgment was given for the plaintiffs against the 1st defendant in the sum of HK$80,000 with interest at the judgment rate from the date of judgment until payment, with costs on a party and party basis, taxed nisi on the District Court scale with a certificate for counsel.
Legal issues: Source of water leakage in the plaintiffs' flat · Apportionment of settlement with 2nd defendants against damages from 1st defendant · Assessment of damages for inconvenience caused by the water leakage
Outcome: Judgment for the plaintiffs against the 1st defendant in the sum of HK$80,000, plus interest at judgment rate from the date of judgment until payment. The plaintiffs are entitled to costs of the action on a party and party basis, taxed nisi on the District Court scale with a certificate for counsel.
Cited by 15 cases