Tai Wai Lam v. Ho Ka Tung and Another

DCCJ17777/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 17777 OF 2001

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BETWEEN

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Coram: His Honour Judge Chow in Court

Dates of Hearing: 2^nd, 3^rd, 4^th, 17^th and 27^th August 2004

Date of handing down Judgment: 4^th November 2004

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JUDGMENT

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1.The Plaintiffs are the owners and occupiers of Flat 1A (“1/F.A”), Lung Chu Building, 12 – 18 On Hing Street, New Territories (“the Building”), whereas the Defendants are owners of Flat 2A (“2/F.A”) of the Building.

2.By this action by the Plaintiff applied to this Court for an injunction against the Defendants for repeating or continuing the nuisance of leakage of water from 2/F.A to 1/F.A and for damages for the said leakage of water.

3.1/F.A comprises of 3 bedrooms (identified as Bedroom No. 1, Bedroom No. 2 and Bedroom No. 3 on the Floor Plan exhibited on p. 71 of Exhibit P1), a living room, a kitchen and a bathroom.

Background

4.In 1989, 2/F.A was sold to a Mr. Ho Lok and Li Wai Yin (“the previous owners”), who were the parents of the 1^st named Defendant.  The previous owners built a fish pond on the floor immediately above Bedroom No. 3.  After the building of the fish pond, water leaked to the concrete ceiling of Bedrooms No.1 and No.3. The Plaintiff made a complaint to the previous owners.  In December 1996, the latter paid him a sum of $16,800 to settle the matter, and the fish pond was demolished.  The cracks appearing on the ceiling of Bedrooms No.1 and No.3 were repaired.

5.In May 2001, the Defendant renovated 2/F.A.  They hacked off the existing floor tiles and paved new floor tiles.  On 16^th May 2001, the breaking off force created heavy vibration; water leaked heavily from the ceiling of 1/F.A.  On 2^nd June, 2001, the Plaintiff filed a claim in the Small Claims Tribunal for a claim in the sum of $49,060 for damages suffered by him because of this leakage incident.  On 12^th July, 2001, the Small Claim Tribunal made an award of $39,660.  Subsequently the Defendants settled the award.

The Plaintiff’s complaint

6.From June to July, 2001, water leaked from ceiling of the living room and the 3 bedrooms of 1/F.A for about 4 weeks until about early July 2001.  The Plaintiff collected about half a bucket of water from each of these rooms every day.  The most damaged area is the ceiling of the extended living room outside the kitchen and Bedroom No.3 around the beam area, namely, marked as locations 7 and 8 (“locations 7 and 8”) on p. 121 of Exhibit P1.  Photos 15 on p. 232, and Photos 60 and 61 on p. 246 show these spots.

7.The Defendants deny that the Plaintiff has suffered the alleged loss or damage; as a further or alternative defence, they say that any loss or damage suffered by the Plaintiff was caused in part, if not wholly, by the Plaintiff’s own defective water pipings.  However, the Defendants has not adduced any evidence to support the further or alternative defence; hence this defence fails.

The Plaintiff’s expert reports

8.Mr. Stewart Wong (“Mr. Wong”) of the Proficient Surveyors & Co. was instructed by the Plaintiff to investigate the cause of water leakage.  Mr. Wong compiled 2 reports, dated 16^th November, 2001 and 16^th March, 2004 respectively.

9.In the first report, Mr. Wong stated that he had visual inspection of 1/F.A on 23^rd October, 2001, and he made the following observations:-

“1.	That the entire ceiling of Room No. 1, about 10’ x 10’ has dry water marks (see photo. No. P. 1 – P. 2).
2.	That there is a crack about 6’ long at the ceiling of Room 1    (see photo. No. P. 1).
3.	That there is another crack about 2’ long at the ceiling of Room 1 (see photo. No. P. 2).
4.	That there are dry damp spots in area about 6’ x 3’ at the ceiling of living room outside the Room No. 1 (see photo. No. 3 & 4).
5.	That there are bubbles at the ceiling plaster and paint of Room No. 2 (see photo. No. 5).
6.	That are water marks scattered at the ceiling of Room No. 2 (see photo. No. P. 6).
7.	That there are water marks in area about 3’ x 4’ at the ceiling of living room outside Room No. 3 (see photo. No. P. 7 – P. 8).
8.	That there are water marks at the beam and exterior side of wall of Room No. 3 (see photo. No. P. 7).
9.	That there are water marks at the ceiling of Room No. 3 (see photo. No. 9).
10.	That there are at least 3 cracks at underside of the beam of Room No. 3 (see photo. No. P. 10).
11.	There are water marks at the ceiling and wall of Room No. 3 (see photo. No. P. 30).”

10.On 7^th November, 2001 he made dampness check of 1/F.A by means of a concrete moisture meter.  The test shows that the ceiling of Bedroom No.1, the ceiling of the living room outside Bedroom No. 3, and the ceiling and wall of Bedroom No. 3 had been dampened but dried out at the time of the test.  However, the side of the beam of the living room outside the kitchen showed 100% dampness, and the result of the test on this part shows:-

“There has been water escaped from kitchen of 2/F.A caused flowing through the concrete floor slab to enter 1/F.A bringing dampness appearing at the beam, ceiling of 1/F.A.”

11.On 7^th November, 2001, he was unable to enter 2/F.A.  But he could look into the interior of 2/F.A and found that renovation work had recently been done to its walls and floors.  He observed that there were no water marks at the ceiling of 2/F.A, showing that there was no leakage of water from the flat above 2/F.A.  He entered into 3/F.A, and found that it had been left unoccupied for several years.  The floor and low part of the walls of 3/F.A were dry without water stains, showing that no water had escaped from 3/F.A.  He inspected the communal drains and found that they were generally intact without sign of water escaping from them.

12.Based on his surveying he concluded that, because of no possible water escape sources other than 2/F.A, water must have escaped from 2/F.A into 1/F.A during the renovation period of 2/F.A.  At page 6 of the report, he stated:-

“7. Cause

With regard to the cause of water escape i.e. from 2/F.A caused flowing into 1/F.A occurred on 16^th May, 2001 and thereafter a further 4 weeks time of water dripping at the ceiling of 1/F. occurred from mid June, 2001 to mid July, 2001, we have investigations and would advise that the cause was as a result of the renovation works in the 2/F.A premises which involved hacking off the existing ceramic tiles on the floor of its premises by means of pneumatic breaker.  The breaking off force created heavy vibration which rendered cracks in the concrete floor slab between 2/F.A and 1/F.A.  Further, while proceeding with installation of new ceramic tiles, water was made pouring onto the bare concrete floor of 2/F.A with which water caused penetrating through cracks in the concrete floor of 2/F.A to drip out at the ceiling of 1/F.A situated its immediately below.  The water escape from 2/F.A has rendered soakage, stains and damage to the ceiling of Room 1, 2, living room and some other parts of 1/F.A which are required overhauling and reinstatement.”

13.In the second report, Mr. Wong stated that he made a joint inspection of 1/F.A and 2/F.A with the parties in this case on 29^th January, 2004.  He found that flooring works had been done to the entire 2/F.A.  The floors had been replaced with ceramic tiles.  Whilst replacing the ceramic tiles on the floor of 2/F.A, breaking force had been made to the floor.  There were new ceramic tiles rendered on the walls of the toilet and the kitchen.  This was proof of breaking the wall and the floor of 2/F.A by concrete breaker whilst replacing the ceramic flooring of 2/F.A premises.  He also found various structural alterations to Flat 2/F.A.  He found that there was no rain water flowing into the rain water pipe from the flats above 2/F.A.  Based on this survey he opined that the origin of water escape which caused water flowing into and affecting the ceiling slab of the living room of 1/F A was in fact at 2/F.A.

14.Mr. Ko, the Defendants’ expert, carried out a leakage test to 2/F.A. Fluorescent colour water was poured into the sink of the kitchen of 2/F.A and allowed it to be discharged through the drain of the sink of 2/F.A.  Water was found leaking from the wall and the base of the sink cabinet of 2/F.A, and the water flowed downward affected the ceiling slab of the living room of 1/F.A. 

15.Mr. Ko carried out a flooding test to the floor of the bathroom of 2/F.A for 1 hour.  Mr. Wong asked for 2 days’ flooding, but this request was rejected.  Mr. Wong’s request for flooding test to be done to the kitchen floor of 2/F.A was also rejected. 

16.The sections of the concrete at the ceiling slab of the bathroom and the living room of 1/F.A were opened up.  Mr. Wong found that there was serious corrosion to the reinforcement in the ceiling slab of the toilet of 1/F.A arising from contact of water or moisture.    He opined that the cause of the leakage was due to the flooring works at 2/F.A as well as water leakage in the drainage pipe of the sink and facilities of the kitchen.

The Defendants’ expert reports

17.The Defendant’s expert complied two reports, dated 22.4.2002 and 20.2.2004 respectively.  It is Mr. Ko who carried out the surveys and tests in these reports.

18.The first report contained a thermographic survey for the water leakage problem at 2/F.A, using infra-red thermographic technology.  The spots chosen are walls of the kitchen, toilet, living room and bedrooms.  No moisture area was found on the survey area.  The report can only show that there was no water leakage to 2/F.A from the flats above it.  It does not show whether or not there was water leakage from 2/F.A to 1/F.A.  This report is therefore not useful for the purpose of determining the issues between the parties in this case.

19.The second report reveals that only water drainage test of the kitchen sink and flooding test to the floor of the bathroom of 2/F.A were carried out.  The infra-red survey shows that there was no dampness and water leakage sign on dry areas, and there was no extension or development of dampness on damp areas (locations 7 and 8).  At P.4 of the expert (P.272 of Exhibit P1) it made the following conclusion:-

“In consideration of the unoccupied condition of Flat 2A, the dampness found on the ceiling of the extended living area in Flat 1A may not be caused by the water leakage from the upper flat that is Flat 2A.

Furthermore, as shown in the results from the flooding test and the water draining test, it is further inferred that the dampness is not caused by the water leakage from Flat 2A.”

20.Regarding the flooding test done to the bathroom of 2/F.A, Mr. Ko took the view that there was no reason why water on the bathroom floor would not seep to locations 7 and 8 within 1 hour.  1 hour was sufficient because the affected area was very damp.  Locations 7 and 8 are not underneath the bathroom, but under the kitchen.  However, Mr. Ko insisted that the floor slabs of the bathroom and the kitchen are in general circumstances connected.  So water on the bathroom floor would seep to locations 7 and 8 within 1 hour.  Whilst he opined that the penetration of water would depend on the structure of the location and the significance and sophistication of the leak, he agreed that he had no idea of the floor structure of the bathroom and the kitchen.  Therefore there is simply no basis for him to have formed his view as stated above.

21.Mr. Ko rejected Mr. Wong’s request for doing flooding test on the kitchen floor because he wanted to avoid damaging the wooden cabinet in the kitchen, but he agreed that there was a concrete kerb protecting the bottom edge of the cabinet.  So his reason for rejecting the test is unsound.

22.I find that the test on the kitchen floor was avoided by Mr. Ko without any good reason.  Locations 7 and 8 are directly underneath the kitchen floor.  The test would be crucial for determining whether the dampness in these 2 locations has anything to do with the kitchen at 2/F.A.  Mr. Wong had put a tissue on the floor of the kitchen during the test on the sink basin.  The tissue was subsequently found to be wet.  This shows that there was leakage problem with the sink basin.  But not a word about this was mentioned in the second report.

23.Mr. Ko said that the accuracy of infra-red survey results differs according to a lot of factors, such as environmental factors, lighting etc.  But the infra-red survey report does not show how the data collected are analysed against these factors before a conclusion was reached.  Thus the Court is not informed how the data collected would give rise to the findings contained in the report.  This is a highly unsatisfactory aspect of the report.

24.I find that due to various unsatisfactory aspects the two reports complied by the Defendant’s expert are not helpful to this Court.  I attach no weight to them.  I prefer the reports complied by Mr. Wong.  The conclusions reached by him are well supported by evidence, such as photos, analysis and elaboration.  I accept the findings and conclusions made in his reports.

25.As at 25^th May, 2001, the meter of 2/F.A showed that 4.54609m³ (1 unit) of water had been consumed.  Between 25^th May 2001 and 3^rd August 2001, there appears to be no consumption of water according to the water bill (P.480 of Exhibit P1).  Mr. Wong said that the consumption of water between 0 – 1 unit was shown on the meter but not shown on a water bill.  This explains why half bucket of water came from each room everyday during the said 4 weeks of renovation, but the consumption of such water was not shown on the water bill.

26.Before the renovation of 2/F.A, there was no leakage problem.  This renovation of 2/F.A ran from May to early July 2001.  The period of leakage corresponds to the renovation period.  The kitchen of 2/F.A is located right above locations 7 and 8, and there is a clear path showing how water leaked from the said kitchen to these 2 locations.  The water marks inside the kitchen cabinet is evidence of water leakage from the drainage pipe of the sink and facilities of the kitchen.

27.The old tiles on 2/F.A were hacked off in May 2001.  This must have caused cracks on the floor slabs of 2/F.A and the ceiling slabs of 1/F.A to be formed.  Water poured onto the floor for the purpose of paving new tiles leaked through the cracks in May 2001.  The leakage continued throughout the period of renovation.  Due to leakage directly from above, locations 7 and 8 were seriously dampened.

28.The Defendants raised a number of possibilities.  The court will not deal with possibilities.  It will only adjudicate on evidence and make a finding of fact according to the evidence.

29.I find that the source of water leakage was at 2/F.A and this was caused by the negligence of the Defendants.  I therefore find that the Plaintiff succeeds on its claim, in so far as liability is concerned.

Reliefs

Injunction

30.In paragraph 13 of the amended statement of claim, the Plaintiff says that “the Defendants still continue and threaten and intend to continue the said nuisance unless order or restrained by the Court.” The cause of the leakage of water is due to the renovation of 2/F.A.  But there is no evidence that there is any other renovation work carried out or to be carried out after the completion of the renovation work in the period of May to July, 2001.  When there is no renovation work, there will be no water leakage, and hence there will be no nuisance. So the statement in paragraph 13 is not supported by evidence.  2/F.A has not been occupied for a long period.  The Plaintiff submitted that when it is occupied, water may leak again.  But there is no evidence to indicate when it will be occupied again.  On the other hand the leakage spread over a number of places at 1/F.A, as shown in Mr. Wong’s first report (P.116 and P.117 of Exhibit P1). The penalty of breaching an injunction may involve imprisonment.  So injunction has to be made in precise and specific terms so that the Defendants would know exactly what to do, but the Plaintiff has not formulated such terms in its application.  It is not appropriate for this Court to formulate such terms for him.  For these reasons, the application for injunction is refused.

Damages

31.The amount of $150,900 being damages was not challenged.  The Plaintiff agrees to give credit to the amount of $21,000, being damages for repair work.  I therefore make an award of $129,900 ($150,900 - $21,000) to the Plaintiff. The Plaintiff claims for $15,500, being damages for personal damages.  I accept the Plaintiff’s evidence in this regard.  Lack of documentary evidence to support this item of claim cannot be a reason for not making the award.  The total award made to the Plaintiff is $145,400 ($129,900 + $15,500).

32.I therefore order that the Defendants do pay within 30 days hereof the Plaintiff the sum of $145,400, with interest thereon at judgment rate, to run from the date of this Judgment until payment.

Costs

33.I make an order nisi, to be made absolute in 14 days’ time, that the Defendants do pay costs of these proceedings to the Plaintiff, to be taxed, if not

agreed, with certificate for Counsel.

Miss Doris To instructed by Messrs. Au Yeung, Cheng, Ho & Tin for the Plaintiff

Mr. Anson M.K. Wong instructed by Messrs. Chong, So & Co. for the Defendants