Lai Yuen Wah and Another v. Chan Sai and Another
Read the full judgment text of DCCJ 1977/2003 on BabelCite. This District Court judgment.
1. Ps and Ds purchased their units in 1993 under the Home Ownership Scheme and have been occupying their respective units since then.
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DCCJ 1977 /2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1977 OF 2003 -------------------- BETWEEN
-------------------- Coram: Deputy District Judge S. T. Poon in Court Dates of Hearing: 20th - 21st February 2006, 30th - 31st March 2006 and 3rd April 2006 Date of Handing Down Judgment: 20th June 2006 __________________ JUDGMENT __________________
Introduction This is a dispute concerning water seepage in a multi-storey domestic building. The Plaintiffs (“Ps”) are owners of a unit on the 7th floor of the building and the Defendants (“Ds”) are owners of the unit immediately above. Ps seek an injunction to restrain Ds from causing or permitting water seepage from Ds’ premises to Ps’ premises. Ps also seek damages caused by the alleged water seepage including the costs of and incidental to the renovation of damaged parts of the property and damages for discomfort and inconvenience. Ds deny the existence of water seepage. Ds also maintain that Ps have failed to mitigate their loss by allowing the conditions of the damaged parts to deteriorate. Ps rely on the expert opinions of Mr. P. S. Kwan (“Mr. Kwan”) for the issues on liability and quantum. Ds rely on the expert opinions of Mr. Chan Kwok Wai, Albert (“Mr. Chan”) for the issue on liability and Mr. Steven Humphrey (“Mr. Humphrey”) for the issue on quantum. Before instructing Mr. Chan to prepare his report, Ds originally instructed Mr. Cheng Wei-dart (“Mr. Cheng”) to give expert opinion and the report of Mr. Cheng was filed. However, due to the fact that Mr. Cheng has unfortunately passed away before trial, Mr. Chan was instructed instead. There are altogether 5 reports filed by Mr. Kwan, 2 of which being comments on the reports of the other side. There are 2 reports filed by Mr. Humphrey and 1 report each for Mr. Cheng and Mr. Chan. The opinions of the experts contrasted each other in many respects. Most part of the trial was spent on cross-examinations of experts. Ms. Lai Yuen Wah Winnie (“WL”), one of Ps and Ms. Chan Mo Lan (“CML”), a daughter of Ds, gave evidence at trial. There is not much dispute as to the factual evidence but only a small part in relation to the issue on mitigation. Background 1.Ps and Ds purchased their units in 1993 under the Home Ownership Scheme and have been occupying their respective units since then. 2.In or about the middle of year 2000, WL discovered some watermarks appeared at the ceiling of the kitchen and bathroom and the watermarks were spreading quickly. She complaint to the estate manager Chevalier Property Management Limited (“CPML”). 3.People from CPML inspected Ps’ unit and found that plasters were peeling off from the kitchen and bathroom ceilings. An inspection was then carried out at Ds’ unit and WL was told by CPML that water had been accumulating on the bathroom floor of Ds’ unit near the water drainage and there was wetness and rust stains on the water pipe adjoining the wall. CPML requested Ds to carry out repairing works. 4.Despite the above complaint, the problem of P’s unit continued and started to spread to the ceilings of the corridor and living room. 5.The sequence of events in the period between 29th August, 2000 and 9th August, 2002 can conveniently be summarized with reference to a letter of record from the Estate Manager to Ds dated 2nd October, 2002 which was written as follows:-
6.The parties spent 2 years to try to resolve the problem through CPML but finally failed. Ps instructed solicitors to handle the matter. Ps also instructed Building Diagnostic Consultants Limited (“BDCL”) to conduct a Rapid Infra-red Thermographic Survey at their unit. According to BDCL’s report, the most possible water leakage source could be the area in 8/F directly above the bathtub in 7/F because most of the moisture detected in 7/F ceiling was distributed around that area. Site investigation and colour test were recommended to be conducted at Ds’ unit. 7.By a letter dated 19th September 2002, enclosing BDCL’s report, Ps’ solicitors demanded Ds to do remedial work to Ps’ premises at Ds’ costs. Ds replied by a letter dated 30th September 2002, drafted by CML, offering to employ a contractor to re-paint the ceiling of Ps’ unit without admitting liabilities. 8.It was stated in Ds’ replying letter and in fact a colour test was conducted by the Food and Environment Hygiene Department at Ds’ unit which showed that no colour element put into the water pipes of Ds’ unit was found in Ps’ unit. A report prepared by the Government Laboratory was produced confirming the said result. 9.On or about 4th December 2002, Ps instructed Mr. Kwan to carry out surveys of their unit and also Ds’ unit. After inspecting the respective units and conducting moisture content measurements therein, Mr. Kwan prepared his first report dated 21st January 2003. 10.Mr. Kwan noticed plasters peeling off from the ceilings of the kitchen and bathroom of Ps’ unit. He also noticed snow-flakes like stalagmites hanging down from the ceiling of the bathroom. 11.Mr. Kwan used a device called Electronic Moisture Meter (“EMM”) to measure the moisture content of concrete substrate of the ceilings of the bathroom, kitchen, corridor and sitting room. According to Mr. Kwan, the EMM can detect moisture content of concrete 30 to 50 mm inside the surface. The result showed that the moisture content inside the detected areas were as high as 98% relative humidity, which is, as described by Mr. Kwan, comparable to “raining cats and dogs outside”. 12.According to this first report of Mr. Kwan, water seepage was probably caused by the poor condition of the bathtub in Ds’ unit. Mr. Kwan observed that the sealant of the bathtub was aged and hardened, the underside and skirting of the bathtub were wet, the bathroom door and its frame were damped and the skirting board in the sitting room behind the bathtub wall was completely detached and broken. Mr. Kwan opined that these are indications of water leakage from the bathtub. 13.During the period between 6th December 2002 and 17th January 2003, extensive renovations were taken out at Ds’ unit. According to CML, the total price of it was HK$158,172.00 and the major works included the replacement of the bathtub to a bath cubicle, all aluminum window frames, all water pipes inside Ds’ unit and the re-decoration of Ds’ unit by new design and materials. 14.Upon CML’s request, another water pressure test on water pipes of Ds’ unit was conducted by people from CPML on 11th February 2003, the result showed that the water pressure of the pipes was normal and there was no sign of water leakage. CML also engaged a registered plumber to carry out a water pressure test on 15th February 2003 and the result was the same. 15.Ps issued the Writ of Summons of the present action on 4th April 2003. 16.On 5th January 2004, Mr. Kwan conducted another inspection on Ps’ and Ds’ units. Apart from using EMM to measure moisture contents, a water pressure test was performed at Ds’ unit as well. On the same day, Mr. Humphrey also visited the units, but only stayed very briefly at Ps’ unit. 17.In his second report dated 21st January 2004, Mr. Kwan commented that the water seepage from Ds’ unit had not stopped. As revealed by the EMM, the moisture content within the ceiling of Ps’ unit was still at a high level. 18.For the pressure testing on pipes, the pressure dropped from 105 psi (Ib/in²) to 95 psi in 22 minutes for cold water pipe and from 102 psi to 99 psi in 20 minutes for hot water pipe. 19.According to Mr. Kwan, the results showed that the cold and hot water pipes are leaking somewhere in Ds’ unit and the leaking rate is small. 20.Mr. Humphery also made a report subsequent to the visits. His report only focused on the costs of repairing Ps’ unit and did not really touch on the issue on liability. According to him, the realistic cost of repairing was in the order of HK$3,000 to HK$4,000 and in the extreme case scenario HK$7,850. 21.In an undated subsequent report of Mr. Humphery, having considered the quotations from 2 contractors, the cost of repairing works was revised to the range of HK$8,500 to HK$20,000 depending upon the exact scope of the works. 22.In his report dated 11th August 2004, Mr. Cheng gave his opinion on whether there was water leakage from Ds’ unit. Mr. Cheng commented in his report that there is no factual evidence to substantiate the conclusion that the damage on Ps’ unit was caused by leaking pipework of Ds’ unit. The fact that moisture was found in Ps’ unit does not necessarily mean that it came from Ds’ unit. 23.Mr. Cheng also commented that there is no evidence of any new water seepage in Ds’ unit. He opined that the water pressure test conducted by Ps’ experts might be unreliable. Mr. Cheng suggested some other causes that might have caused the damage of Ps’ unit including the salt-water-borne winds coming from the east. According to Mr. Cheng, which was agreed by Mr. Kwan in his subsequent report, the structural slab at 8/F level is not water-proof by itself. 24.Mr. Cheng suggested Ps to commence renovation work as soon as possible to avoid further deteriorations. 25.Mr. Kwan prepared a report dated 1st September 2004 in reply to Mr. Cheng’s report. He basically maintained his opinions in his previous reports and added further that the conditions of Ps’ unit has been deteriorated to a state that they cannot be renovated due to high moisture. 26.In addition, Mr. Kwan later on submitted a third report dated 12th August 2005. He indicated in the report that he had made site visits to Ps’ unit continually and the last visit before the report was on 8th August 2005. He observed that the re-bars within the concrete of the ceilings were rusted and the moisture contents of the relevant areas were still very high. The ceiling stalagmites were seen growing longer and longer. 27.Mr. Kwan concluded that Ds’ unit has continuous water leaking down to Ps’ unit. 28.Owing to the death of Mr. Cheng, Mr. Chan was instructed to give his opinion instead and a report dated 5th October 2005 was filed accordingly. 29.The inspection by Mr. Chan was conducted on 15th September 2005. Mr. Chan observed that there was generally peeling paintwork and uneven surface on the ceilings of the kitchen and bathroom of Ps’ unit. He physically touched the water stained areas but did not feel that they were moist. 30.The ceiling surfaces were tested by a Protimeter which recorded readings ranging from 45%-70% at the kitchen, 15%-70% at the bathroom and 20%-45% at the corridor. The Protimeter is a device testing the moisture level of the surface of an area. 31.A closed-circuit water pressure test was conducted at Ds’ unit showing no sign of leakage from the water supply pipes of the unit. 32.Mr. Chan concluded that the ceiling areas in the kitchen, bathroom and corridor of Ps’ unit had been affected by water leakage and dampness and the problem caused damages to the interior decorations. 33.When compared the moisture contents detected with previous test results, it appeared that the extent of water leakage problem had been diminishing. 34.The installed services and fittings in the kitchen and bathroom of Ds’ unit were in good working condition and there was no sign of water leakage from there. 35.Mr. Chan concluded that the water leakage problem to the ceiling areas in Ps’ unit is unrelated to the construction and installation fittings of Ds’ unit. 36.In giving his evidence in court, Mr. Chan suggested that the damage of the ceiling of the bathroom was a result of water vapours condensed on its service during or after uses of the bathroom. Mr. Chan said the ventilation of the bathroom of Ps’ unit was bad and water vapours do not escape easily during or after a hot shower. 37.Besides, Mr. Chan also suggested that the damage of the ceiling of the kitchen was due to the condensation of oil or water vapours when the stove underneath was used for cooking. 38.Mr. Chan also queried the accuracy of Mr. Kwan’s EMM in that it was designed to test for moisture contents of a homogenous material whereas the ceilings comprised of different materials including paints, plasters and concretes. Discussions 39.There is no dispute, according to the expert evidence from both sides, that the ceilings of Ps’ unit suffered damages due to high moisture. Mr. Kwan opined that the high moisture was due to water leakage and the water leakage was from Ds’ unit. On the other hand, Ds’ experts suggested that there might be other causes including condensation of oil or water vapours and salty winds. 40.In determining the cause(s) of the damages I must bear in mind that water leakage is a complicated issue, the fact that the ceilings of a unit are damaged by water does not mean that there is water leakage occurred at the unit immediately above. (張秀玲及吳炳漢對鄭禮莊 CACV268/1998). 41.I reject the suggestion that the damages were a result of salty wind from the sea. There is evidence, undisputed, that the relevant windows of Ps’ unit faced towards the inland hillsides rather than the sea. I accept Mr. Kwan’s evidence that the possibility of leakage from the external wall shall be ruled out. 42.I reject also the suggestion of Mr. Chan that the damages were due to condensations. Mr. Chan accepted in his evidence that concrete and plaster are not water absorbent. On the other hand, he suggested that water or oil droplets condensed on the surface of the ceilings could nevertheless penetrate upward to moisturize the materials within. 43.When Mr. Chan was asked under what circumstances could water move upward he suggested the capillary action. But when being asked further if the capillary action is equal to the phenomenon of a water absorbent absorbing water, he nevertheless agreed. 44.I am of the view that a mere condensation of water and/or oil droplets cannot cause the moisture contents of the ceilings of Ps’ unit to an extent as shown by the photographs depicted. Condensations can certainly not caused the rusting of re-bars within the concrete slab. 45.I conclude that the damages of the ceilings of Ps’ unit were not caused by condensations as suggested by Mr. Chan. 46.I further conclude, on balance of probabilities, that the damages were caused by water leakage to the concrete slab above the ceilings of Ps’ unit. Having ruled as such, however, it does not necessarily follow that the damages were caused by water leakage from Ds’ unit. Water pressure test results 47.There were altogether 8 water pressure tests conducted by the parties on the water pipes of Ds’ unit throughout the years since the complaint of water leakage by Ps and amongst them, 2 of which indicated a leakage from the pipes. However, none of the various people who actually conducted the tests had given evidence to the court. 48.The test conducted by Ps’ plumbers on 5th January 2004 in the presence of Mr. Kwan was described in some details in Mr. Kwan’s report and his evidence in court. Some photographs of the meter measuring the water pressures within the water pipes tested were attached to the report. 49.As disclosed from Mr. Kwan’s report, the drop of pressure detected was not significant (please refer to paragraph 18 above) that Mr. Kwan concluded that there existed only a minor leakage. 50.However, according to Mr. Chan, such insignificant readings cannot even support an existence of water leakage at all, if the water pipe were indeed leaking, water pressure would drop markedly to the extent of 20psi in 20minutes. Mr. Chan also said that if one suspects there is a small leakage during a test at 100psi, one should increase the pressure so that the drop in pressure, if any, could be magnified. 51.Mr. Kwan was questioned in cross-examination about the photographs showing the readings of the meter. It is apparent from the photographs that the readings shown on them did not correspond with the data recorded in the report. Mr. Kwan explained that the angle of view of the photographer might be different from that of the one who recorded the data. 52.I am of the view that the pressure test done by P’s experts on 5th January 2004 is unreliable. It was performed in a lower pressure of 100psi when compared with the one done by those instructed by Mr. Chan with a pressure of 120psi showing no drop of pressure. The drop of pressure detected in the test was so insignificant that allows little room for errors, say for example, reading the meter from an incorrect angle. 53.Comparing the results of Mr. Kwan’s pressure test with the ones done by Ds’ experts or plumbers, I conclude on balance that there was no leakage from the water pipes of Ds’ unit at least since the major renovation on it had been completed on 17th January 2003. 54.I note the complaint of Mr. Kwan about the lack of evidence of calibration of the device used by Ds’ experts or plumbers in testing water pressure. However, even Mr. Kwan himself could only show evidence of calibration of their device conducted more than 1 year before use. There is no adequate information as to the interval when such a device has to be calibrated. 55.In any event, the results of water pressure tests conducted on instructions of Ds corroborated each other. With the test results submitted by Ps being unreliable, I adopt the test results submitted by Ds as accurate. Cause of damage 56.It is Ds’ case that the renovation done in December 2002 was a major one with all water pipes of their unit replaced with copper ones. The renovation costs HK$158,172.00. The bathtub, which was identified by Mr. Kwan as the source of water leakage at that time, was also replaced. 57.The conditions of the bathroom of Ds’ unit were defective as can be seen from Mr. Kwan’s first report and the photographs annexed. BDCL’s report suggested that the area directly above the bathtub of Ps’ unit as the most probable source of water leakage (please refer to paragraph 6 herein), which was more or less the position of Ds’ bathtub. 58.According to Mr. Kwan, moistures accumulated within concrete require years to escape or vapourize from it. 59.Although there is insufficient evidence to suggest that the damages of the ceilings in Ps’ unit were a result of water leakage from Ds’ unit after the major renovation of Ds’ unit, I am of the view that the said damages were caused by the water leakage from the bathtub in Ds’ unit. 60.I note Mr. Kwan’s evidence that the moisture level of the concrete slabs of the ceiling of Ps’ unit was still very high even in August 2005. However, it was the evidence of Mr. Chan that the extent of water leakage problem had been diminishing. 61.Mr. Kwan relied heavily the EMM in concluding that the moisture level remains very high. However, I share the view of Mr. Leung, counsel for Ds, that the method of adjustment as demonstrated by Mr. Kwan was questionable. According to Mr. Kwan, the EMM detects moisture level of a material 30mm to 50mm within. It would be inconceivable therefore, that he would use his palm, as demonstrated, as the subject matter for adjustment given the fact that the thickness of a human can hardly be more than 30mm. 62.I note also that there is evidence to suggest a deterioration of conditions of the ceiling of Ps’ ceiling and I accept that it was in fact the case. But if we have in mind Mr. Kwan’s evidence that it takes very long for water moisture to escape from a concrete slab, it does not necessarily follow that the deterioration means a continuous leakage. 63.I conclude that there had been immense water leakage from the bathtub of Ds’ unit to the concrete slab of the ceiling of Ps’ unit thereby causing the damages of the ceilings of Ps’ unit. From the evidence, Ds had been acting negligently in failing to maintain a proper condition of their bathtub to prevent water leakage. It is obvious and reasonably foreseeable that a bathtub in a poor condition will cause water leakage. 64.Moreover, by acting negligently as such, Ds were in breach of the Deed of Mutual Covenant as alleged by Ps in the Amended Statement of Claim. 65.I also conclude that the said water leakage had stopped after the major renovation being conducted on Ds’ unit in January 2003. 66.Since there is insufficient evidence to conclude that water leakage is continuing, the injunction sought by Ps must not be granted. Damages 67.In the light of the above findings, Ds should be liable to the damages suffered by Ps consequential upon the water leakage from Ds’ unit. 68.It is the case of Ds that Ps failed to mitigate their loss by not repairing their ceilings in time to allow them to deteriorate. 69.I do not accept it as a sound argument. There is simply insufficient evidence before me to suggest that repairing costs could be saved should Ps do the repairing works earlier. 70.Furthermore, I do not accept, as opined by Mr. Humphrey, that only cosmetic repair works are necessary. As what was revealed inside the concrete ceilings, the structures within the concrete slab including the re-bar had been damaged by water leakage. 71.The opinions given by Mr. Humphrey based mainly on statistics. Upon perusal of his curriculum vitae, we can see that he had taken part in many major redevelopment and construction projects. However, there is no indication anywhere that he has the experience of a small-scale renovation project on a domestic flat. 72.On the other hand, the 2 quotations obtained by Ps are realistic quotations from existing practitioners. With the scale of damages suffered by Ps’ unit as depicted by the photographs in mind, I am of the view that the quotations from JV & Partners (Construction) Co., Limited are reasonable. I would accordingly award HK$94,000 under this head. 73.As regard the claims for damages for discomfort and inconvenience, I can see no reason why Ps should allow themselves and their family members to suffer the sorts of discomfort and inconvenience without taking any steps to avoid them. 74.The costs for cosmetic repairs are in the amount of a few thousand dollars. If the extent of discomfort and inconvenience were to be so serious and unbearable as alleged, Ps should have caused the ceilings to be repaired temporarily to reduce the sufferings. 75.I am not satisfied that Ps had suffered the discomfort and inconvenience to the extent as alleged. Moreover, even if Ps had indeed suffered as alleged, they have not discharged their duty to mitigate at all. 76.Accordingly, no damages should be awarded under this head. By the same token, the claim for miscellaneous is also disallowed. 77.There is no evidence to suggest that any furniture has to be removed and stored elsewhere during the renovation. The claim under this head is also disallowed. 78.On the other hand, I am of the view that the expenses for alternative accommodation claimed are reasonable. I would therefore award HK$7,000 under this head. 79.As regard the claim for expert fees, since it is my finding that water leakage from Ds’ unit has stopped after 17th January 2003, any such expenses incurred by Ps for the purpose of proving continuous leakage should not be allowed. 80.Amongst the invoices of Mr. Kwan copies of which being exhibited at pages 93 to 101 of the bundle of documents, invoices at pages 95, 97, and 98 should not be allowed. For invoices at pages 99 and 100, only half of the amounts should be awarded. 81.I would therefore award the sum of HK$5,570 + HK$2,100 + HK$5,479 + HK$3,000 = HK$16,149 under this head. Order 82.Judgment be entered against Ds in favour of Ps for the sum of HK$117,149 (HK$94,000 + HK$7,000 + HK$16,149) together with interest thereon in the rate of 5% per annum from the date of writ until judgment and thereafter in Judgment Rate until payment. 83.Ps’ claims for injunctive reliefs be dismissed. 84.Costs should follow the event. However, a substantial part of this action is related to the injunctive reliefs sought by Ps which turn out to be unsuccessful. It would not be fair to Ds for them to bear all costs. 85.I make a costs order nisi that each party to bear its own costs in this action. This order nisi will become absolute upon the expiry of 14 days from the handing down of this judgment.
Mr. Jerry Chung instructed by Messrs C. H. Chan & Co. for the Plaintiffs. Mr. Paul H. M. Leung instructed by Messrs Ford, Kwan & Co. for the Defendants. |