Samfit Ltd. v. Hoi Tung Computer Label Industrial Co. Ltd.

HCA010291/1993

1993, No. A10291

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Deputy Judge YEUNG in Court

Dates of hearing: 20, 21, 24 and 28 June 1994

Date of handing down of judgment: 7 July 1994

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J U D G M E N T

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1. The Plaintiff is the registered owner of the premises at Unit 1, 2nd floor, Hope Sea Industrial Centre, Lam Hing Street in Kowloon Bay (the Plaintiff's premises), having acquired it in or around the end of 1992 and has been since running its business therein.

2. The Defendant is the registered owner of the premises immediately above the Plaintiff's premises at Unit 1, 3rd floor in Hope Sea Industrial Centre (the Defendant's premises), and it acquired it in 1987 shortly after the building was completed.

3. In or around August 1993, the Plaintiff noticed excessive noise and vibration coming down from the Defendant's premises daily from 9 a.m. to 8 p.m. Monday to Saturday.

4. It appears that the noise and vibration originate from 3 labels weaving machines (VAUPEL labels machines EWM 80 -160E) installed in the Defendant's premises and when one or more of the machines are in operation, considerable amount of noise and vibration will be produced.

5. It is the Plaintiff's case that such noise and vibration are detrimental to the health and well-being of the Plaintiff's staffs and constitute nuisance, annoyance and discomfort.

6. The Plaintiff further claims that the defendant is in breach of Clause 36 in the Third Schedule of the Deed of Mutual Covenants in respect of the Hope Sea Industrial Building in failing to comply with the provision of Clause 44 of the said Schedule.

7. The relevant Clause 36 and 44 provide respectively as follows:

"(36) ot to cause or create in any part of the said building any excessive heat, vibrations, noise, odours, or smoke which may become a nuisance or annoyance to other owners of Units or Car Parking Spaces in the said building having regard to the fact that the said Building as a whole is intended to be used for industrial purpose.

(44) To mount and equip all machinery installed in the unit antivibration absorbers of such types and designs that would be sufficient in eliminating and reducing vibrations and dumping produced by the operation or running of such machinery or any of them."

8. The Plaintiff claims against the Defendant for an Injunction to restrain the Defendant by itself, its servants or agents or otherwise however from operating any one of the three Vaupel machines unless or until the vibrations caused by such machines as measured from the Plaintiff's premises are reduced to no more than 0.25 m/second2 and the noise levels to no more than 65 db(A).

9. The Defendant however denies that the noise and/or the vibration are excessive nor are they breach of the Deed of Mutual Covenants in question. In any event, the Defendant alleges that the use of the Plaintiff's premises is in breach of the Occupation Permit in respect of the building in question as well as Clause 15 of the Third Schedule of the said Deed of Mutual Covenants and in the circumstances, it is inequitable for the Plaintiff to be granted an injunction as claimed.

10. The Plaintiff's managing director, Tang Chung Yin described how since August 1993 there have been excessive noise and vibration coming down from the Defendant's premises every day except Sunday from morning till late afternoon. The condition is so serious that some of the Plaintiff's employees found it difficult to continue working for the Plaintiff and new employees cannot be recruited. It is impossible to conduct normal conversation and talking on the telephone is difficult.

11. Complaints had been received from visiting overseas customers who described the noise and vibration in the Plaintiff's office coming from the Defendant's premises as unpleasant, horrendous, terrible and totally unacceptable. One compared it to the San Francisco earthquake. One complained of severe migrate headache and they all indicated that it was impossible to conduct proper business dealing in the Plaintiff's premises due to the noise and vibration level.

12. Mr. Tang said the noise and vibration had caused him persistent headache, neck pains and buzzing ears. He produced a medical report suggesting that he was suffering from low grade hearing loss, tinnitus and cervical spondylosis.

13. An employee of the Plaintiff, Chan Pui Yee, Joanna confirmed the excessive noise and vibration which she described as intolerable. She only agreed to continue working for the Plaintiff because of a cordial relationship with other colleagues and what Mr. Tang had promised her. In any event, she said if the current litigation failed to stop the Defendant and the noise and vibration persisted, she definitely would be quitting.

14. At the request of the parties, the Court, on the first day of the hearing, paid a site visit to the building in question. It is an industrial building in the Kowloon Bay area. There are workshops of various kinds as well as showrooms and warehouses. Some of the premises consist also of office and reception area. On the whole, the building is well-kept and relatively quiet except on the 2nd and 3rd floors where the Plaintiff's and the Defendant's premises situate.

15. In fact the Defendant's factory is the only establishment still operating machines which produce noise and vibration of a substantial degree. When one steps out of the lift on the 2nd and 3rd floors, one is immediately overwhelmed by the noise coming from the Defendant's premises when the label-weaving machines inside are in operation.

16. Once inside the Plaintiff's premises, the condition could only be described as shocking. There was a constant and steady emission of noise coming from the Defendant's premises when the machines were in operation. In addition, the vibration was such that the walls and the floor were virtually shaking. The condition was less serious in the inner most part of the Plaintiff's premises where the toilets, the pantry and the inner storage place were but on the whole it was quite unbearable. I can only describe it as if one was standing next to the engine room of a ocean going vessel.

17. Apparently, it is the vertical movement of the weaving action of the machines that makes the noise and vibration problem more serious than other weaving machines with horizontal movement.

18. The noise and vibration level varied slightly depending on whether one or two or all the three machines were in operation. There was suggestion that it became more serious when the machines were operating at a higher speed of 440 r.p.m than 370 r.p.m. But I find the difference minimal.

19. According to one of the Plaintiff's witnesses Miss Pang, a trainee solicitor in the employ of the Plaintiff's solicitors who is involved in the preparation of the case for the Plaintiff, the condition was in fact milder on the day of the site visit by the Court.

20. She said on 4 previous occasions when she visited the Plaintiff's premises, the noise and vibration level were even worse. She said she felt the floor shaking and so was her body. The condition was vividly captured by a video recording that she made on the Saturday morning just before the trial started when arrangement was made for a joint inspection of the Defendant's premises for the first time. The video recording has been played in Court and what is depicted appears to be consistent with what was observed during the site visit.

21. The matter had been reported to the Labour Department and by a letter dated 15th of September 1993 to the plaintiff, the Commissioner for Labour stated the following:

"Investigation by factory inspector of this department revealed that the source of noise and vibration was originated from the operation of the three label weaving machines installed on the factory premises. investigation also revealed that the factory had taken the following measures to reduce the noise and vibration problems to protect the persons employed within the factory :

(a) A separate work room was provided for the three weaving machines to prevent workers from unnecessary exposure to the noise and vibration;

(b) Rubber paddings were provided to the footing of the three weaving machines to reduce the level of noise and vibration;

(c) Ear protectors were provided top and used by workers working the factory.

To improve the situation, I have advised the factory to engage a competent person to conduct a noise assessment and to observe other requirements under the Factories and Industrial Undertakings (Noise At Work) Regulation. However, I regret to tell you that under the Regulation, I have no statutory power to require a factory proprietor to reduce the noise and vibration level to protect a person not employed by him or a person not working inside his factory."

22. The Labour Department was unable to do anything to improve the situation. The management company of the building in question had also written to complain to the Environmental Protection Department but again to no avail.

23. The Plaintiff had engaged an expert Messrs. Daniel Chan and Associates to carry out noise and vibration measurement at the Plaintiff's premises on six different occasions using proper instruments and adopting world recognised methods. When the machines in the Defendant's premises were not in operation, a noise level ranging from 51.6 db(A) to 53.0 db(A) was recorded. But when one or more machines were in operation, the noise level increased to 71.0 db(A) to 72.5 db(A) which increase represents an increase of sound pressure of 10 times. The average measured vibration level of acceleration of 0.50 - 0.78 m/s2 , also far exceeds the acceptable limits. According to Mr. Chan's report, for an allowed exposure time of 8 hours per day, the vibration limits are:-

(I) Preservation of working efficiency- the fatigue decreased proficiency boundary - 0.25 m/s2.

(ii) Preservation of health or safety-exposure limit- 0.6m/s2.

(iii) Preservation of comfort- reduced comfort boundary-0.15m/s2.

Mr. Chan concluded his report with the following:

"Measurements show that the sound pressure level in the office of Unit 201 (when some of the vibrating machines on 3/F were in operation) far exceeded the normal criteria by way of speech intelligibility. At the measured level of 72 db(A), conversation must be carried out at a distance of 0.13m to 0.26m and this is not acceptable and excessively annoying.

.... the measured vibration levels have exceeded the limits by 68% to 670% which is time dependent. This means that the measured levels fail to meet the preservation of the working efficiency (fatigue- decreased proficiency boundary), the preservation of health or safety and the preservation of comfort. When compared with BS 6472 which is frequency dependent, the measured vibration levels have exceeded the standard by 10 times to 17 times.

Visual perception of the offices workers .... also affected when acceleration exceed 0.5m/s2."

24. According to another expert Dr. Wai Ming To, the vibration level measurement he took at the plaintiff's premises on 4th and 5th of January 1994 ranged from 0.48 to 0.51 m/s2. Dr. To considered that the vibration level must be reduced by at least half so that it will be below the threshold limit of 0.25 m/s2 for most of the time.

25. Mr. Chan was emphatic that the noise and vibration level were excessive. Mr. Chan was of the view that it would be acceptable if the vibration level was brought down to 0.25 metre per second2 and the noise level to 65 db(A) in the kind of building in question. He also said that the existing vibration isolators are not sufficient.

26. It is clear from Mr. Chan's and Dr. To's reports that the situation in the Plaintiff's premises is really quite critical.

27. The reports of Mr. Chan and Dr. To had been the subject matter of comments by the Defendant's own expert, Mr. Ian W. Campbell of Messrs. Campbell & Shillinglaw. Mr. Campbell did not himself make any measurement of the noise and vibration level at the Plaintiff's premises and instead he just gave his opinion on the figures obtained by Mr. Chan and Dr. To.

28. Mr. Campbell placed emphasis on the suggestion that the premises in question is a factory premises and said factory plant operations where major 'heavy' processes are undertaken are rarely below a noise level of 80 db(A) and often exceed 90 db(A) within the production areas.

29. Mr. Campbell further claimed that the higher recorded levels of 71.0 to 72.5 db(A) with equipment in operation is similar in intensity to a busy open plan office with telephones, desk top computers, etc. in operation; the stock exchange in operation; sitting in Hong Kong stadium conversing with neighbours during the lull between team change at the Rugby 7-asides; or walking along the pavement/sidewalk in a busy thorough fare conversing with a companion. In so far as the vibration level was concerned, Mr. Campbell considered that it was substantial, but not excessive.

30. Mr. Campbell suggested that the condition in the Plaintiff's premises was aggravated by the way in which the partitions were built, being light weight partitions stretching from the floor right up to the underside of the floor slabs above - the slabs that have been triggered by the three machines in question and everything that was loose would rattle.

31. Mr. Campbell indicated that in the 70's to early 80's, weaving machines were very common in flatted factories until they all disappeared into China because of economic reason and godown and warehouse operation are then allowed into flatted factories. He was hinting that the noise and vibration problem then would be much worse than what the Plaintiff is experiencing.

32. Although Mr. Campbell was trying to minimise the seriousness of the noise and vibration level in the Plaintiff's premises, it was clear from his evidence that he recognised that the problem did exist from some of the answers that he gave under cross examination. For example:

Q. When you were walking around the premises at 2.10, did you feel your whole body shaking like having a massage?

A. Yes. There was a definite vibration .... there is certainly a fairly decisive vibration there. One can't negate that. It's there and we have got the readings .... yes.

Q. Do you think that that would affect one's health?

A. .... we have workers all over the world that work in that 8 hours a day, 5 days a week, year after year ....

Q. there is a serious noise problem there, isn't there?

A.There is a substantial background noise in ....

Q. That would drive anyone 'nuts' if they have to spend 8 or 10 house a day ...?

A. Right.

Q. But that is the position, 1 think?

A. Yes.

Q. You put up with that 8 to 10 hours a day. However long you spend in your office, you have got that noise drumming away?

A. Very annoying.

Q. That would be a problem - anyone who is doing work of a quiet nature would be seriously annoyed by that noise, would they not?

A. They would certainly be affected surely, surely.

Q. .... Let's talk about the annoyance factor ....

A. Right. If it were my office, I would be very annoyed.

Q. And you would be annoyed whether you were doing clerical work, or whether you were sitting sewing buttons on the shirts, or whatever you were doing. You would still be annoyed by it, wouldn't you?

A. I certainly would, surely, to a degree.

Q. And the vibration is really something that aggravates the problem?

A. Vibration aggravates the problem of airborne noise, yes.

33. Mr. Campbell may well be right that workers had to work in premises with similar noise and vibration level in the 70's or early 80's but workers would be provided with protective gears such as ear protectors. In any event, we are not talking about workers working in a weaving factory. The Plaintiff and its employees just happen to be doing some quality-control work on leather garments in the premises below the Defendant's premises. Is it reasonable to expect that they should put up with noise and vibration just like workers in a weaving factory or that they should wear ear-protectors as well? The answer seem to be clear to the Court.

34. Miss Chan on behalf of the Defendant argued that the plaintiff is using its premises as an office and that would be in breach of the occupation permit of the building which only allows the Plaintiff's premises to be used as a workshop. In the premises, the Plaintiff ought not be granted any equitable relief as it has not come to the Court with clean hands.

35. I found such suggestion difficult to accept. The Director of the Plaintiff, Mr. Tang's evidence is clear. The Plaintiff is in the business of making leather garments for overseas buyer. Like a lot of manufacturers in Hong Kong, for economic reasons, the major production work will be carried out in factories in China and the workshop in Hong Kong will be handling subsidiary matters. The Plaintiff will be purchasing materials and accessories which will be stored and examined to make sure that they are up to the required quality before they are sent to China for manufacturing purpose.

36. The manufactured garments will sometimes be stored in the Plaintiff's premises before they are delivered to customers. Patterns and paper cuttings for garments will be prepared and samples will also be kept for inspection by customers.

37. Indeed from what the Court could observed at the site visit, many of the other occupiers in the building in question are doing what the Plaintiff is doing, something very common in industrial buildings in Hong Kong due to the prevalent practice of moving much of the production work across the border.

38. There is no merit in Miss Chan's submission that what the Plaintiff does is in breach of the Occupation Permits.

39. Workshop is defined in the Oxford English Dictionary as follows :

"The expression 'workshop' means......any premises.... room or place, not being a factory, in which .... or within the close or curtilage or precincts of which .... any manual labour is exercise."

40. On the evidence, the Plaintiff is clearly using its premises as a workshop. Indeed if one were to be difficult about it, the defendant's using its premises as a heavy manufacturing factory could well not be using it as a 'workshop'. But this is not a matter I need to concern myself with. Suffice for me to say that Miss Chan's submission on this point fails.

41. Even if the plaintiff's usage of the premises is in breach of the Occupation Permit. Such matter has little bearing on the issue that I have to resolve. Whether it is a warehouse, a showroom, an office, a workshop or a factory, its occupants cannot be involuntarily subject to excessive noise and vibration.

42. I accept that the building in question is an industrial building and not an office building and that I must balance the Defendant's right to use his property for his own lawful business and the right of the Plaintiff to the undisturbed enjoyment of his premises. But I am firmly of the view that the noise and vibration emitting from the Defendant's premises far exceed a reasonable acceptable level in all the circumstances of the case and have unduly interfered with the Plaintiff's comfortable and convenient enjoyment of its premises and the Defendant's wrongful acts constitute an actionable nuisance. Such wrongful acts are also breaches of the relevant clauses of the Deed of Mutual Covenant in question.

43. All the experts including Mr. Campbell agree that the noise and vibration level can be improved. At the moment, the machines are equipped with rubber paddings of 19 mm. thick which are standard paddings from the manufacturer. Mr. Chan and Dr. To are of the view that 50 mm thick paddings can reduce the noise and vibration to an acceptable level and that the replacement of such paddings will cost about $150,000.00. Mr. Campbell agrees with such views except that he cannot be sure if a thicker paddings will affect the label weaving machines which are delicate machines.

44. Mr. Ho Lap Tak, the factory manager off the Defendant also said that the machines are on Hire-purchase agreements and that the finance company does not allow any alternation of the machines which may affect their efficiency.

45. The Hong Kong representative of the manufacturers of the machines also insists that 19mm paddings are standard equipment of the machines supplied by the manufacturer and he cannot be sure that 50 mm thick paddings will not affect the performance of the machines in question and that any alternation may result in their refusing to carrying on with the maintenance/service agreement with the Defendant. However he did say that it is their duty to try their best to help their customers to solve their problems although he has no certainty of being successful at all.

46. To some extent I have sympathy for the Defendant in the light of its predicament. But those matters are not justification nor excuse for the Plaintiff to have to continue to suffer from the grossly excessive noise and vibration from the operation of the machines in the Defendant's premises.

47. I am satisfied that until and unless improvement to reduce the noise and vibration level emitting from the operation of the three machines is effected, the Defendant ought not be allowed to operate them or any of them. The Plaintiff should be granted the injunction sought.

48. Mr. Chan considered that the noise level can be reduced to 65 db(A) and the vibration level reduced to 0.25 m/second2. Mr. Campbell had some reservation about those figures and I think certain allowance should be given to the Defendant.

49. The Court consider the following order appropriate:

50. An Injunction is granted to the Plaintiff to restrain the Defendant by itself, its servants or agents or otherwise however from operating the three VAUPEL label machines (EWM 80 or 160) or any of them or any machines unless or until the vibrations caused by such machines as measured from the Plaintiff's premises at Unit 1,2nd floor, Hope Sea Industrial Centre are reduced to no more than 0.3 m/second2 and the noise levels produced by such machines reduced to no more than 67 db(A).

51. In order to ensure that the order of the Court can be properly carried out, I grant the parties liberty to apply and to enable the Defendant to carry out the necessary remedial works, I order that the Injunction Order is not to take effect until two months after the handing down of this judgment.

52. The Court also make an order nisi that the Defendant is to pay the Plaintiff's costs of the proceeding to be taxed if not agreed and the order on costs is to be made absolute 7 days after the handing down of this judgment.

Representation:

Mr. P. Graham instructed by Messrs. Cheung, Tong and Rosa for the Plaintiff.

Miss Tracy Chan instructed by Messrs. C.K. Tse for the Defendant.