Eternal Advance Ltd v. Li Tsz Wai t/a Purple House
Read the full judgment text of DCCJ 2057/2004 on BabelCite. This District Court judgment.
1. This is a claim by the Plaintiff who was and is trading as Darling Harbour Seafood Wine Oyster Bar which was and still is a tenant of the premises situate at the Basement of China Hong Kong Tower 8-12 Hennessy Road, Wan Chai, Hong Kong (the “Basement”). The Defendant was and is the occupier/tenant of Shop C (“the Defendant’s Shop”) situated on the Ground Floor of China Hong Kong Tower, 8-12 Hennessy Road, Wan Chai, Hong Kong. There is no dispute that the Defendant’s Shop was and still is si
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DCCJ 2057/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2057 OF 2004 -------------------- BETWEEN
-------------------- Coram: Her Honour Judge C.B. Chan in Court Dates of Trial : 9th and 10th June 2005 Date of Handing down of Judgment : 6th September 2005 Judgment 1.This is a claim by the Plaintiff who was and is trading as Darling Harbour Seafood Wine Oyster Bar which was and still is a tenant of the premises situate at the Basement of China Hong Kong Tower 8-12 Hennessy Road, Wan Chai, Hong Kong (the “Basement”). The Defendant was and is the occupier/tenant of Shop C (“the Defendant’s Shop”) situated on the Ground Floor of China Hong Kong Tower, 8-12 Hennessy Road, Wan Chai, Hong Kong. There is no dispute that the Defendant’s Shop was and still is situated directly above the Basement. 2.It is the Plaintiff’s case that on or about 23 May 2003, while carrying out the decoration work at the Defendant’s Shop, the Defendant either by itself, its agents or servants wrongfully caused damage to a 4/8” diameter PVC flush water pipe in the toilet on the Cockloft of the Defendant’s Shop (the “said damaged flush water pipe”). This caused a large quantity of water to escape from the damaged flush water pipe. This drenched the toilet on the cockloft and flowed to the Ground Floor of the Defendant’s Shop causing water to permeate through the floor slab of the Defendant’s Shop into and cascading down the ceiling slab of the Basement resulting in the damage to the Basement as pleaded in paragraph 3 of the Statement of Claim. 3.The damage is more particularly described in the Plaintiff’s expert report of Proficient Surveyors & Co at pages 20 to 40 of the Bundle of Documents (“BD-2”) and in the Supplemental expert report in the third Bundle of Documents (“BD-3”). 4.In the Statement of Claim the Plaintiff pleaded that the said damage was caused by the negligence of the Defendant and/or its servants or agents. The Particulars of Negligence were particularized as:-
5.The Plaintiff claims loss and damages in the total sum of $127,500.00. The loss and damage is further verified by the expert reports of the Plaintiff. 6.The Plaintiff called its expert Mr. Stewart Wong, the maker of the expert reports to give evidence. I find him to be an expert based on his experience and qualifications which he referred to. He verified and confirmed his expert report at pages 23-25 of BD-1 and supplemental expert report at pages 45-56 of BD-1. He adduced his reports into evidence. He stated that following receipt of instructions from the Plaintiff, he attended inspection of the Basement on 28 November 2003, 12 December 2003 and 13 January 2004. He observed damage to the said premises as referred to in para. (6) of his report and as shown by the photographs attached. Mr. Stewart Wong stated that he has been in this line of work for 25 years and has given evidence in Court for about 100 times. He does about 15 cases of water damage each month. He has handled about 2,500 water leakage cases. The Defendant’s solicitor confirmed that the Defendant does not dispute the alleged damage to the Basement. 7.He stated that Mr. Hui Man Fu (“Mr. Hui”), the technician of Sino Estates Management Limited at the material time of the outbreak, attended the Defendant’s Shop and upon inspection found a burst PVC flush water pipe, diameter 4/8”, at the toilet of Cockloft of the Defendant’s Shop. He stated that Mr. Hui was the eye witness who saw and confirmed to him the damage to the said flush water pipe in the Defendant’s Shop resulting in water damage to the Basement. 8.He came to the conclusion based on his survey, that the source of water escape which caused water damage to the Basement was the burst PVC flush water pipe which supplied water to the cistern of the water closet in the Cockloft of the Defendant’s Shop. He gave his opinion that this PVC flush water pipe was damaged due to the negligent act of the Contractor or its employee, whilst undergoing decoration work in the Defendant’s Shop. 9.He stated that Mr. Hui told him that in the course of inspection, the staff of Sino Estates Management Limited took photographs of the damaged PVC flush water pipe. Mr. Hui handed this photograph to the Plaintiff. The photograph referred to is P31 in his report at page 39 of BD-2. Mr. Hui showed him the 4/8 inch damaged PVC flush water pipe in the photograph. Two black arrows point at it in the photograph. Mr. Stewart Wong stated that water droplets can be seen dripping from the said pipe. Mr. Hui informed him that the photograph was taken at the water closet or toilet in the cockloft of the Defendant’s Shop. Mr. Stewart Wong also referred to photo A3 in his supplemental expert report at page 6 thereof in BD-3. He referred to the vertical water stains on the wall, which are identified by the black arrows thereon. He stated that these water stains flowed down the extension of the same wall down to the Basement and this same wall is shown in photo P5 in his expert report at page 30. 10.I find Mr. Stewart Wong to be a truthful witness in recounting the facts that he sought to tell the Court of what he saw and heard. 11.The Plaintiff’s Consultant, Mr. Tang Yue Kong (鄧雨江) gave evidence and adduced his witness statement into evidence. Similarly Mr. Chan Kwok Hei, a Director of the Plaintiff gave evidence and adduced his witness statement into evidence. 12.The Defendant gave evidence. She adduced her witness statement into evidence. She denied that there was flooding in the Defendant’s Shop during the time of renovation between 15 – 30 May 2003. She denied that there was any burst PVC flush water pipe. She also denied there was any water seepage from the burst PVC flush water pipe. She stated that the wooden flooring of the Defendant’s Shop did not show water damage and she stated that the water stains found on the wall as shown in photo A3 of the Plaintiff’s supplemental expert report were not water stains but were coloured water splashed on the wall. Some of the work they do involve the use of water, which has colour. She stated that the stains on the wall were just splashes on the wall of coloured water from the water basin. There was no water running down the wall. 13.She called her contractor Mr. Lo Wan to give evidence. Mr. Lo Wan adduced his witness statement into evidence. He also stated that there was no burst flush water pipe. He stated that during the whole time of the renovation work the flush water supply was switched off. He and his workers had to collect water from outside of the Defendant’s Shop to flush the toilet. He stated that there was no flooding in the Defendant’s Shop during the period of renovation. He stated that if there was flooding, the wooden flooring would have been damaged. He stated that there was no damage to the wooden flooring. The renovation did not involve change of the wooden flooring of the Defendant’s Shop. Finding on the Evidence of the Parties 14.From the evidence adduced by the parties and their witnesses I set out the evidence both for and against the finding that water seepage came from the Defendant’s premises as follows: 15.Evidence that suggests the water seepage came from the Defendant’s premises:-
16.Evidence of the Defendant, which supports her Denial:-
17.Under cross-examination, Mr. Stewart Wong gave evidence in relation to items (1) and (4) of Defendant’s evidence above and stated:
18.Evidence of Mr. Lo the Defendant’s decorator stated:
19.In considering the aforesaid evidence, it seems to me that the strongest evidence in support of the Plaintiff’s case is photo P31. Mr. Stewart Wong stated that Mr. Hui informed him that photo 31 was taken by Mr. Hui. Mr. Hui stated that the photograph was taken in the toilet in the cockloft of the Defendant’s Shop. Mr. Stewart Wong stated that he could see damage to the PVC flush water pipe from the photograph and he could also see water dripping from the burst PVC flush water pipe from the photograph. 20.The water stains on the wall as shown in photograph A3 and the water stains showing water flow down the same wall facing to the Basement wall as shown in photo P5 at page 30 of BD-2. As stated by Mr. Stewart Wong this suggests that there was a flow of water on that wall in the Basement originated from the water running down the same wall in the Defendant’s Shop. The evidence of the Defendant that the water stain came from the splashing of coloured water is not believable for the reasons stated by Mr. Stewart Wong. Mr. Stewart Wong is experienced as an expert in his field. I accept his evidence that he could tell the difference between stain from coloured water and stain from water. This would support Mr. Stewart Wong’s contention that there was water flooding running down the same wall of the Defendant’s shop at some point and that is likely on the balance of probability, along with other circumstantial evidence, to be the time of the renovation. 21.I do accept that there is no direct evidence as regards the time when the water stain was caused on the wall in the Defendant’s Shop shown in photograph A3. However it is likely that it could have been the same water flow as it would otherwise have been a coincidence that there was water stain on this same wall facing as is found in the same wall in the Basement as shown in photo P5 referred to aforesaid. 22.There is no explanation as to why Mr. Hui was not called to give evidence in Court. That is not satisfactory. Mr. Hui if called to give evidence would be subject to cross-examination so that the Court and the Defendant would have the benefit of fully assessing his evidence. However, photo P31 at page 39 taken by Mr. Hui, coupled with the evidence of Mr. Stewart Wong as an expert that he could see water dripping from the PVC flush water pipe is helpful. I do give weight to the hearsay evidence of Mr. Hui referred to by Mr. Stewart Wong as regards where and when Mr. Hui took the photograph, P31. 23.I do not accept Mr. Lo Wan’s evidence that during the renovation there was no protective covering on the wooden flooring although he admitted that it is usual to put protective covering on wooden flooring when premises are painted. I do not find it believable because he stated it was usual to put protective covering on flooring during renovations. I do not accept his evidence that there was no supply of flush water during the period of renovation and I accept the evidence of Mr. Stewart Wong that it is not likely that the flush water supply was turned of as usually there is only one main valve for the whole building to control the supply of flush water. 24.The protective covering on the wooden flooring would have protected the wooden flooring to some extent. There is no evidence of the water flow whether it would have flowed along the seam of the wall and/or concrete floor slab down to the lower floors then to the false ceiling of the Basement. Alternatively a large volume of water may have run along the wall facing shown in photo A3 down to the false ceiling of the Basement. It is not clear how much water would have been soaked in the concrete floor slabs. 25.As stated by Mr. Stewart Wong, the protective membrane which Mr. Stewart Wong stated is usually placed between wooden flooring would protect the wooden flooring from water damage from water in the concrete floor slabs. 26.In relation to the credibility of the Defendant, the Defendant was not a good witness in the witness stand. Under cross-examination she had to admit that it could not have been the case that she was not aware of the complaint of water seepage by the Plaintiff until 24 February 2004 when she received the letter before action as pleaded by her in paragraph 9 of her Defence. It seems to me that she took the stance of denial to avoid responsibility. Mr. Stewart Wong stated that the Defendant or her staff had denied him entry to the cockloft of the premises for investigation. If there was no evidence at all of any flooding surely she and her staff would have permitted Mr. Stewart Wong entry for a thorough investigation. I therefore doubt the credibility of the Defendant. 27.Having considered all the aforesaid evidence, I come to the conclusion that the Plaintiff has established that water damage to the Plaintiff’s premises came from the burst PVC flush water pipe in the water closet in the cockloft of the Defendant’s Shop as referred to in the expert report of Mr. Stewart Wong. If there was damage of such PVC flush water pipe,the high likelihood and balance of probability is that the damage was caused by the negligence of the contractor Mr. Lo Wan and or his workmen or agents who were working in the Defendant’s Shop and was installing a toilet in cockloft of the Defendant’s Shop. It seems to me that Particulars (i) and (ii) of Negligence as pleaded has been established on a balance of probability. Mr. Stewart Wong in his report has established that the amount claimed for the repairs is reasonable. 28.I find the claim of the Plaintiff established and I give judgment for the Plaintiff in the sum of $127,500.00 together with interest from the date of Writ to date of judgment at judgment rate and thereafter interest at judgment rate. I also make an order nisi that costs of the action be to the Plaintiff to be paid by the Defendant to be taxed if not agreed with Certificate for Counsel.
Representation: Mr. Ubaid-Ur Rehman instructed by Messrs. T.K. Cheng & Co. for the Plaintiff. Mr. M.K. Kwan of Messrs. Yip & Partners for the Defendant. |