Chow Wai Kam Annie and Another v. Tat Wen Wah
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DCCJ 5079/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5079 OF 2005 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge R. Cheung in Court Dates of Hearing: 3rd, 4th, 5th, 8th, 9th, 11th and 12th January 2007 Date of Handing down Judgment: 13th February 2007 ------------------- JUDGMENT ------------------- The 1st Plaintiff's case and the Parties 1.This is a claim arising from a water seepage incident affecting the 1st Plaintiff's premises. The evidence presented at the trial was focused on an incident which took place on 27 September 2005 ("the subject water seepage incident"). However, the 1st Plaintiff's pleadings are less clear on this point, and are capable of being understood as referring to a water seepage situation which existed and had continued for sometime prior to the subject water seepage incident. 2.Paragraph 2 of the Re-amended Statement of Claim is in the following terms: "In or about late September 2005, due to heavy rainfall and also the Defendant's improper maintenance or management of the Defendant's Roof in particular the drainage system thereof, the Defendant improperly and wrongfully caused or permitted rain water to be trapped and accumulated in the Defendant's Roof". (emphasis my own) 3.Paragraph 3 pleads as follows: "As a result of the aforesaid, the rain water diffused, leaked and seeped or otherwise percolated through the Wall and also the ceiling of, and into, the 1st Plaintiff's Premises ("the Leakage")". The "Wall" here refers to the wall separating the 1st Plaintiff's premises and the Defendant's premises. 4.Paragraph 4 then pleads the areas in the 1st Plaintiff's premises affected thereby. Such areas are not limited to the areas identified by PW1 and PW3 during their visits to the 1st Plaintiff's premises during and after the subject water seepage incident. 5.Nevertheless, in the witness statement of PW1, he said "In or about late September 2005, I suddenly received a complaint from the 2nd Plaintiff that there was serious leakage of the ceiling of the 223's 3rd Floor" (emphasis my own). In his testimony, PW1 said that he received the complaint on 27 September 2005. At the trial, there was no suggestion by any of the PWs that there was a water seepage situation affecting the 1st Plaintiff's premises which had existed and continued for sometime prior to 27 September 2005, nor was it so put to any of the DWs. No submission was made by Counsel for the Plaintiff to that effect. 6.In the circumstances, the trial must be viewed as having been conducted on the basis of the subject water seepage incident as a one-off, isolated incident which took place on 27 September 2005 and that was the 1st Plaintiff's case against the Defendant. It is not a trial about a continued or sporadic seepage situation that existed for sometime prior to 27 September 2005 and which continued to cause damage well after 27 September 2005. To find liability against the Defendant on this changed basis would be unfair. 7.The 1st Plaintiff became the registered owner of the premises known as 3rd Floor, No. 223 Sai Yee Street, Kowloon (hereinafter "223-3/F") and the Roof thereof (hereinafter "223-Roof") on 11 March 2002 and is still the registered owner thereof. 8.The 2nd Plaintiff was the tenant of the 1st Plaintiff in respect of 223-3/F at the time of the subject water seepage incident. The 2nd Plaintiff has since left. The 2nd Plaintiff has discontinued the claim against the Defendant before the trial and has taken no part in the trial. 9.The Defendant was the owner of the premises known as 3rd Floor, No. 225 Sai Yee Street, Kowloon (hereinafter "225-3/F") and the Roof thereof (hereinafter "225-Roof") at the time of the subject water seepage incident. The Defendant has since sold 225-3/F and 225-Roof. 10.It is the 1st Plaintiff's case that rainwater collected on 225-Roof on 27 September 2005 had seeped into and damaged 223-3/F. Other Premises involved 11.Apart from the 1st Plaintiff's premises and the Defendant's premises abovementioned, the evidence also involves the premises known as Ground Floor, 1st Floor and 2nd Floor, No. 225 Sai Yee Street, Kowloon (hereinafter "225-G/F", "225-1/F " and "225-2/F" respectively), and also the premises known as Ground Floor, 1st Floor, 2nd Floor, 3rd Floor and Roof, No. 227 Sai Yee Street, Kowloon ("227-G/F", "227-1/F", "227-2/F", "227-3/F" and "227-Roof" respectively. Orientation of the Premises 12.The buildings known as No. 223 Sai Yee Street, No. 225 Sai Yee Street, and No. 227 Sai Yee Street are adjacent to each other. Viewed from the above, these buildings form a rectangular shape. The front of these buildings faces Sai Yee Street. The rear faces Fa Yuen Street. The left faces Prince Edward Road West. The right faces Playing Field Road. These streets run respectively parallel to the four sides of these buildings. 13.At the rear of these buildings is a rear lane parallel to Fa Yuen Street. On the left of these buildings is a side lane parallel to Prince Edward Road West. 14.The Typical Floor Plan at page 277 of Trial Bundle C (hereafter "C277", mutatis mutandis) is illustrative of the orientation. The front of the buildings is shown at the bottom, the rear at the top. The building known as No. 223 Sai Yee Street is on the left side, to its right is the building known as No. 225 Sai Yee Street. To the right of No. 225 Sai Yee Street is the building known as No. 227 Sai Yee Street. To the right of No. 227 Sai Yee Street is the building presumably known as No. 229 Sai Yee Street. 15.The use of expressions such as "top", "bottom", "upper", "lower", "left" or "right" in this Judgment with reference to the plans of the premises in question is to be understood as referring to the same orientation as in the abovementioned Typical Floor Plan. The Physical Layout & Situation 16.The physical layout/situation of 223-3/F is shown in the plan marked Exhibit P1. There are 3 Bedrooms marked Bedroom Nos. 1, 2 and 3 respectively. Bedroom No. 1 is the room at the front of the 223-3/F (lower part of the plan), Bedroom No. 3 is nearer the rear of 223-3/F (upper part of the plan). There is a living room, two toilets, a kitchen and a servant's quarter. 17.There is evidence that 223-Roof was tenanted by two foreigners in 2002. Although the evidence is not entirely clear as to whether the greater part of 223-Roof was a fully enclosed structure when it was so tenanted, it would be rather odd if 223-Roof was not so at the time. 18.At the time of the subject water seepage incident, the physical layout/situation of 223-Roof is shown in the plan marked Exhibit P2. The photograph at C274-1 (i.e. the one on top) is also illustrative. In short, the greater part of 223-Roof is covered by a metal canopy supported on metal poles and frames. A small rectangular area in the front part of 223-Roof is not covered. The covered area in the front is not a fully enclosed area as there are only metal frames and poles between the top of the parapet walls that flanked the four sides of 223-Roof and the canopy cover higher up. It is possible that there were glasses between the top of the parapet walls and the canopy higher up, at the rear portion of 223-Roof. The parapet wall at the front (parallel to Sai Yee Street) is not at the front edge of 223-Roof but receded some 8-9 feet back. There is an opening in the front parapet wall for access to the open area at the front. There are only metal railings at the front edge of 223-Roof. 19.The physical layout of 225-2/F is shown in the plan marked Exhibit P7. 20.The physical layout of 225-3/F is shown in the plan marked Exhibit P1. 21.The physical layout/situation of 225-Roof is shown in the plan marked Exhibit P5 and also at Exhibit D3. The photograph at C274-1 is also illustrative. The photograph was taken after the Defendant had carried out demolition works in compliance with a building order, in August 2005. Prior to that, 225-Roof was a fully enclosed concrete structure. After the demolition works were carried out, 225-Roof is flanked by parapet walls on four sides. The parapet wall at the front, like that of 223-Roof, is not at the front edge but receded some 8-9 feet back. There is no opening access in the front parapet wall. 22.The physical layout of 227-2/F is shown in the plan marked Exhibit P7. 23.The physical layout of 227-3/F is shown in the plan marked Exhibit P6. The Photographs 24.I would make the following findings in relation to the photographs presented before me as trial evidence:
Cross Reference between Photographs and Plans 25.The witnesses have made cross references correlating the areas depicted in the photographs to locations as shown on floor plans. They consist of:
The Witnesses 26.The 1st Plaintiff has called 3 witnesses. PW1 and PW2 are factual witnesses whereas PW3 is the expert witness. The Defendant testified as DW1 and called 4 witnesses. DW2, DW3 and DW4 are factual witnesses whereas DW5 is the expert witness. 27.It would be convenient to set out a brief account of the broader aspects of the evidence of the witnesses here. PW1 28.PW1 is the 1st Plaintiff's employee who has been handling tenancy matters for the 1st Plaintiff. He had been working for the 1st Plaintiff since 1993. 29.PW1 is skilled in minor repairs relating to domestic premises. During the period when the 1st Plaintiff leased 223-3/F to DW4 for domestic use, on 3 occasions minor repair works were carried out in 223-3/F in response to DW4's complaint about water seepage affecting 223-3/F. The water seepage then mainly affected the walls adjacent to the windows of 223-3/F facing Sai Yee Street. The repairs mainly involved adding sealants to those areas and repainting. 30.The 1st Plaintiff entered into a tenancy agreement with the 2nd Plaintiff whereby 223-3/F was let to the 2nd Plaintiff for domestic use for a term of 2 years from 1 November 2004 to 31 October 2006. 31.In September 2005 there was heavy rainfall. The 2nd Plaintiff called him on 27 September 2005 at about 9 a.m. to complain of a serious water seepage problem at the ceiling. PW1 was told that the seepage had started at the middle of the night. 32.PW1 went to check out the situation at 223-3/F. He arrived at about 9:30 a.m. and the 2nd Plaintiff let him in. He observed that there was water dripping down from the ceiling and the walls were wet. PW1 said that there were buckets on the ground to hold the water that was dripping down. 33.PW1 has marked on the plan Exhibit P3 the areas affected by the seepage. They are indicated by the two strips drawn in pink. The longer strip extended continuously for about three quarters of the length of the wall separating 223-3/F and 225-3/F, in the living room of 223-3/F. The remaining one quarter of the wall at the front of 223-3/F is not so marked. The shorter strip is at the rear part of 223-3/F at the wall close to the kitchen, on the right side of 223-3/F as shown on its floor plan. 34.PW1 went up to 223-Roof and observed that a lot of rainwater had accumulated on 225-Roof, reaching 2-3 inches deep. On the other hand, 223-Roof at the time was practically dry. 35.PW1 reported the situation to the 1st Plaintiff who arranged the architect PW3 to attend the premises to investigate. PW3 arrived at about 2 p.m. By that time, the 2nd Plaintiff had already left and they could not enter 223-3/F. 36.PW1 and PW3 went to 223-Roof to make observations. PW3 opined to PW1 that it was the accumulated rainwater on 225-Roof that caused the seepage affecting 223-3/F. PW1 reported to the 1st Plaintiff. The 1st Plaintiff gave PW1 the telephone number of the Defendant and PW1 then called the Defendant to explain the situation to her. The Defendant agreed to attend the premises to check out the situation. PW1 then called a contractor Mr. Tse, with whom he was familiar, to attend the premises as well. PW3 had left before the arrival of the Defendant and Mr. Tse. 37.By about 4:00 p.m., the Defendant and Mr. Tse arrived. According to PW1, they did enter 225-3/F to inspect. The seepage problem at 225-3/F was even more serious in that the wooden floors were flooded with water. 38.The party also went to view 225-Roof. Suggestion was made to the Defendant that a hole be made at the front parapet wall of 225-Roof to drain away the accumulated rainwater. The Defendant agreed and eventually paid Mr. Tse a few hundred dollars for the job. The bored open hole is shown in the photograph at C274-1. 39.On 30 September 2005, PW1 again attended 223-3/F at about 3:30 p.m. with PW3. PW1 found out that there was no more dripping of water at the ceiling but the ceilings and walls were still wet. 40.Under cross examination, PW1 said that he had also attended 223-3/F sometime in October 2005. 41.The Defendant had subsequently sold 225-3/F and 225-Roof to two buyers. 42.PW1 had taken the photographs of 225-3/F on 6 May 2006 at C257-262. The photographs show that 225-3/F had been affected by water seepage. The photographs at C260-262 show that water collection trays had been affixed to the ceiling. 43.According to PW1, in July 2006, the two new buyers of 225-3/F and 225-Roof executed water proofing works at 225-Roof. 44.In September 2006, the 2nd Plaintiff terminated the tenancy of 223-3/F before the two years term had run its full course. 45.In November 2006, the 1st Plaintiff executed repair works to 223-3/F and the works were completed by mid-November 2006. 46.There is evidence from PW1 that there was no piping system installed at the ceiling of 223-3/F (the floor slab of 223-Roof). This is not in dispute. PW2 47.PW2 is the administrative secretary of a church that occupies 225-G/F, 225-1/F and 225-2/F, and also 227-G/F, 227-1/F, 227-2/F, 227-3/F and 227-Roof. 48.PW2 has been attending the church gatherings on a regular basis since 1999 and he often did studies at 227-3/F. He has been the administrative secretary of the church since 25 January 2005. He has not heard of any seepage problem affecting the church premises until August 2005. 49.In 1999, there were concrete structures covering 223-Roof and 225-Roof whereas 227-Roof was covered by a shelter. 50.PW2 said that in about mid-August 2005, he noticed that demolition works were being carried out to remove the concrete structure on 225-Roof. After the occurrence of rainfall on 17 August 2005, he found out that there was water seepage at the ceiling of 227-3/F and on the wall separating 225-3/F and 227-3/F. 51.PW2 went to 227-Roof and found that the concrete structure covering 225-Roof had been removed. There were debris lying on the ground of 225-Roof. Rainwater had accumulated on 225-Roof. PW2 said that during that period whenever it rained, rainwater would accumulate on 225-Roof and reached some depth, exceeding that shown in the photograph C156-2. That would be of a depth comparable to the level of rainwater accumulated on 225-Roof on 27 September 2005. 52.PW2 also gave evidence that between 22-27 September 2005, Hong Kong was struck by a typhoon and there was heavy rainfall on those days. The seepage situation in 227-3/F was aggravated and 225-2/F was also affected by seepage. 53.PW2 had taken photographs showing the accumulation of rainwater on 225-Roof and also photographs of the seepage situation at 225-2/F, 227-2/F and 227-3/F. The photographs are at C146-173. They were taken in September 2005. The photographs at C155 to 157-1 depict 225-Roof, the rest depict 225-2/F, 227-2/F and 227-3/F. Roughly speaking, the areas affected by seepage on 225-2/F are scattered in the church hall and clustered at the rear near the wall facing Playing Field Road (i.e. on the right side of the floor plan). There were only two areas affected by seepage in 227-2/F. The areas affected by seepage in 227-3/F are clustered near the wall between 225-3/F and 227-3/F. 54.It was PW2's evidence that 227-Roof was covered by a shelter providing adequate protection and there was good drainage, so that 227-Roof was practically dry during those times. PW3 55.PW3 is a Registered Architect. His expert status was challenged but I ruled that he was qualified to testify as an expert on the cause of the subject water seepage incident. He had never testified as an expert in Court before. 56.PW3 is also a factual witness. On 27 September 2005 at about 2 p.m., he attended 223-Roof and stayed there for 10 to 20 minutes. He had made observations. He was, however, unable to gain access into 223-3/F on that occasion. On 30 September 2005, PW3 visited 223-3/F and 223-Roof. He stayed there for about 30 minutes. Again, he had made observations. In May 2006, PW3 visited 225-3/F. 57.There were some discrepancies between the evidence of PW3 and PW1. By way of illustration, PW3 said that it was PW1 who contacted him on 27 September 2005 to ask him to investigate the subject water seepage incident. PW1 said that it was the 1st Plaintiff who contacted PW3. I do not consider such minor discrepancies to be material. Again, by way of illustration, PW1 said that the photographs at C274-275 were taken on 30 September 2005 but PW3 said they were taken on 6 May 2006. I prefer the evidence of PW3 in this regard. The evidence shows that the camera used is the camera which PW3 used for his work. It is more likely that the owner had used it to take photographs. 58.PW3 had prepared two expert reports. The first one is at B32 and made in October 2005 ("1st Report"). The second one is at D3, made on 17 August 2006 in response to the expert report prepared by DW5 ("2nd Report"). 59.PW3 said that when he visited 225-Roof on 30 September 2005, there was still water collected on the roof. The 1st Report and the 2nd Report made no mention of that. There is no photograph in the 1st Report or the 2nd Report depicting the condition of 225-Roof on 30 September 2005 (although the 1st Report does contain photographs showing the accumulation of rainwater on 225-Roof on 27 September 2005). He agreed that the condition of 225-Roof would be of relevance to his findings. 60.PW3's evidence is that on 30 September 2005, the five photographs being Figures 1-5 in the 1st Report at B34-36 were taken. Figure 1-4 were taken inside 223-3/F. Figure 1 shows the wall in the living room separating 223-3/F and 225-3/F. Figure 2 and Figure 3 show the areas near the top of the set of windows at the front of the living room of 223-3/F. Figure 4 shows the wall on which the Main Circuit Board of 223-3/F was affixed, at the rear of 223-3/F. Figure 5 shows an area outside 223-3/F at the stairwell. See paragraph 24(2) above. 61.PW3 was asked to mark on a plan of 223-3/F the areas depicted in Figures 1 to 4 of the 1st Report and he did that on Exhibit P8. When pointed out to him that Exhibit P8 is only the original building plan and did not show the actual layout of 223-3/F, he then did it again on Exhibit P9. He later acknowledged that Exhibit P9 is also misleading in that Figures 2 and 3 depict only the frontage areas of the living room of 223-3/F, whereas he had purported to show in Exhibit P9 that the areas depicted extended to Bedroom No. 1 of 223-3/F. In fact, he had not entered Bedroom No. 1 of 223-3/F on that occasion. PW3 said that in the plan forming part of the 1st Report at B44, the sign (a small circle with an arrow) used to indicate the area depicted in Figure 5 of the 1st Report is also misleading as it is pointing in the wrong direction. See paragraph 24(2) above. Because of this discrepancy and the general unsatisfactory nature of PW3's evidence, I am not prepared to find that the exact location of the depicted seepage symptoms was indeed at the bottom of the landing area of the flight of stairs that ends at the level of 223-Roof, as viewed from the landing area at the level of 223-3/F. 62.It is PW3's evidence that the areas affected by water seepage inside 223-3/F along the wall separating 223-3/F and 225-3/F was in the shape of a continuous long strip at the time of his visit. Indeed in Exhibit P8 and Exhibit P9, he did purport to mark continuous long strips in those areas. The photograph evidence on the Plaintiff's side does not tally with what he said. His explanation is that he had indeed taken photographs showing the continuous long strips of seepage marks, but for "technical reasons" he could not show them in the 1st Report or the 2nd Report. When asked why that could not simply be done by partly overlapping the images of several photographs together to form one long, continuous image, he had no satisfactory answer to give. 63.PW3 also gave evidence to the effect that he was able to tell the direction of water seepage from the seepage marks on the ceiling of 223-3/F, as shown in the photographs at D5-6 in his 2nd Report (he agreed that he had done some touching up to those photographs to accentuate the seepage marks in pink colour). 64.PW3 agreed that the plan of 223-3/F used in his 1st Report did not represent the actual layout thereof at the time of his visit. He had used the original building plan prepared in the 1950s. 65.PW3 agreed that in the 1st Report, he had made no mention of the fact that one or two of the poles supporting the metal canopy on 223-Roof did in fact rest on the ground instead of on the top of the parapet walls. This is not mentioned in his 1st Report. He also agreed that it was possible that the windload (i.e. the uplifting force of wind) affecting the canopy might exert a pulling force on the concrete at the base of the pole, so as to loosen/weaken it. PW3 agreed that the water seepage marks inside the living room of 223-3/F at the wall between 223-3/F and 225-3/F (see Figure 1 at B34) do appear to be at the place below the position of the metal pole which rested on the ground of 223-Roof. PW3 however opined that he could judge from the seepage mark that the seepage affecting 223-3/F at that area was not caused by water seepage at 223-Roof at the base of the metal pole in question. 66.PW3 said that when water accumulates at an increasing depth, the weight of the accumulated water would exert an increasing pressure, and while below a certain pressure level the water would not cause any seepage, beyond that level seepage would occur. 67.PW3 opined that it is likely that old buildings like the buildings in question would be susceptible to water seepage as the initial water proofing works might have lost their function due to ageing. Renewal is possible but there is no evidence of renewal of water proofing works affecting 223-Roof or 225-Roof at the trial. PW3 also opined that for some old buildings in Hong Kong, there was not even any initial water proofing works done. 68.PW3 agreed that on 27 September 2005, some water was collected at the front part of 223-Roof. This has not been mentioned in the 1st Report or 2nd Report. 69.In his 2nd Report at D6, PW3 had said that the seepage marks on the walls of 223-3/F were felt to be wet during his visit in September 2005. However, in his 1st Report, he made no mention of that fact. The 1st Report was made in October 2005 whereas the 2nd Report was made on 17 August 2006. 70.PW3 agreed that his 1st Report or 2nd Report has made no mention of the rainfall condition of Hong Kong in August and September 2005. 71.PW3 agreed that the ground of 223-Roof is not wholly level but rather, there was a slight gradient such that any water collected on the ground would flow to the sides of the roof where the drainage outlet were. 72.PW3 agreed that the ground of 223-Roof was made of concrete. He agreed that there should be cracks and crevices inside the concrete along which water could pass through. Accordingly, a water proofing membrane should be added thereon to make the concrete water-proof. He opined that since 223 Sai Yee Street and 225 Sai Yee Street were built at the same time, it is likely that they were made of the same building materials. 73.PW3 agreed that during his visits in September 2005, the front portion of 223-Roof was covered by various things and there were also water patches. He was aware that there were metal plates at that area. He said that he had considered the possibility of water from 223-Roof seeping down to 223-3/F but since he had dismissed that possibility, he did not consider it necessary to mention it in his 1st Report. 74.PW3 is of the opinion that the subject water seepage incident had affected the areas on the wall near where the Main Circuit Board of 223-3/F was affixed, at the rear part of the premises. When pointed out to him that there was a stairwell separating 223-Roof and 225-Roof near that area, PW3 in response prepared a three dimensional drawing Exhibit P12 to show how the water from 225-Roof could have seeped into that area of 223-3/F. It was suggested to PW3 that it was improbable that the water could have passed through such a long and meandering route. DW1 75.The Defendant is DW1. She is aged over 70. She was the registered owner of 225-3/F and 225-Roof from 28 February 1973 to 22 December 2005. By an Assignment dated 23 December 2005, she has assigned 225-3/F and 225-Roof to two buyers. At the time of the subject water seepage incident, DW1 did not reside in 225-3/F or 225-Roof. She seldom attended the premises. 76.DW1's daughter DW2 and her son DW3 had resided at the premises prior to mid-August 2005, DW2 at 225-Roof and DW3 at 225-3/F. DW3 had told DW1 of the water seepage problem affecting 225-3/F. 77.In compliance with a building order issued by the Building Authority, demolition works were carried out in August 2005 in respect of the concrete structure covering 225-Roof. From the contractor's information, DW1 understood that the demolition works had lasted some 8 to 10 days. At the time there was heavy rainfall in Hong Kong. 78.DW1 attended the premises on 27 September 2005 after PW1 contacted her by telephone. She observed that the drainage outlets on the ground of 225-Roof were blocked and there were patches of water collected on the ground as it was uneven. DW1 agreed to pay $800 to the contractor brought along by PW1 in order to open up a hole at the parapet wall at the front of 225-Roof. 79.On that occasion, DW1 also viewed 223-Roof but did not enter 223-Roof. She said that the ground of 223-Roof was a bit wet. DW2 80.DW2 is the daughter of DW1. DW2 had moved out of the Defendant's premises before the commencement of the demolition works on 225-Roof. 81.DW2 was informed by DW3 in August 2005 that demolition works were being carried out on 225-Roof. There was heavy rainfall since August 2005, and DW3 informed DW2 that there was a serious water seepage problem affecting 225-3/F. 82.DW2 said that in early September 2005, DW3 moved out from 225-3/F to live with her. 83.In October 2005, DW3 informed DW2 of the legal proceedings taken by the 1st and 2nd Plaintiffs against the Defendant. DW2 then visited 223-3/F on 20 October 2005 and gained entry to make observations. She took photographs there. An old lady there (whom DW2 believed to be the mother of the 2nd Plaintiff) told DW2 that 223-3/F was affected by the water seepage problem after the demolition works at 225-Roof were carried out. The old lady told DW2 that there were 10 areas affected and these were marked on the plan annexed to the witness statement of DW2 at B15. 84.On 4 November 2005, DW2 again attended 223-3/F together with the two buyers of the Defendant's premises. DW2 and the two buyers separately took photographs of the condition of 223-3/F. The photographs at C190 and C200 do show a continuous strip of seepage marks on the wall between 223-3/F and 225-3/F. The two buyers were there as they were concerned about their possible exposure to legal liabilities in connection with the subject water seepage incident. 85.DW2 had also made observations of the condition of 223-Roof. DW3 86.DW3 is the son of DW1. He resided at 225-3/F and 225-Roof from 1995 to 2005. 87.DW3 was aware that DW4 had become the tenant of 223-3/F in 2002 and sometime later two foreigners moved in to live at 223-Roof. The two foreigners moved out before the onset of the rainy season in 2004. In the winter of 2004, the 2nd Plaintiff moved in to live at 223-3/F. 88.DW3 said that prior to the carrying out of the demolition works to 225-Roof in August 2005, the wall separating 223-Roof and 225-Roof was about 7 feet tall and the metal canopy on 223-Roof partly used the wall as support. 89.In early August 2005, the demolition works in respect of 225-Roof commenced. The roof was first removed. The top part of the wall separating 223-Roof and 225-Roof was demolished towards the end of the demolition works. Since August 2005, there was heavy rainfall. There was a serious water seepage problem at 225-3/F. 90.DW3 moved out to live with DW1 on about 17 August 2005, though he also returned from time to time to pick up his personal belongings. Since 4 September 2005, DW3 moved to live with DW2. At about the same time, DW1 offered 225-3/F and 225-Roof for sale. 91.DW3 said that one or two weeks after 4 September 2005 (and that would be about 11 September to 18 September 2005), he went back to DW1's premises and a female occupant of "223 Sai Yee Street" (which I understood to be 223-3/F) told him that rainwater had seeped into the ceiling near the wall separating 223-Roof and 225-Roof. DW4 92.DW4 is the former tenant of the 1st Plaintiff. By a tenancy agreement dated 25 April 2002, he had rented 223-3/F for domestic use from 1 May 2002 to 30 April 2004. DW4 did reside at 223-3/F during that period. 93.Shortly before moving into 223-3/F, DW4 saw construction works being carried out on 223-Roof. The construction works eventually gave shape to a roofed area enclosed with aluminum doors and windows above parapet walls, save for the frontage area facing Sai Yee Street. 94.Shortly after moving into 223-3/F, DW4 found out that there was a water seepage problem. 95.In about June 2002, two foreigners had moved in to 223-Roof to reside there. 96.Since about July 2002 with the onset of the rainy season, there was a serious water seepage problem in 223-3/F which affected mainly the areas adjacent to the windows facing Sai Yee Street. 97.In about May 2003, DW4 again experienced a water seepage problem at 223-3/F. 98.DW4's evidence is that he had complained to the 1st Plaintiff about the water seepage incidents and a number of minor repairs were done but the repairs never fully resolved the problems. The water seepage problem re-appeared during rainy seasons in 2002 and 2003. 99.DW4 had taken photographs on various occasions showing the areas affected by the seepage. The photographs are at C206-213 and C283-309. The seepage problem occurred mainly at the front part of 223-3/F (i.e. inside Bedroom No. 1 and the living room) near the edge of the windows facing Sai Yee Street. It affected the ceilings as well as the walls. The photographs at C290 and 291, however, show that the ceiling of Bedroom No. 2 was also affected. 100.DW4 had viewed and observed the condition on 223-Roof during the term of his tenancy. DW5 101.DW5 is the expert called by the Defendant. There was no challenge to his expert status and I ruled him qualified to testify as an expert. He also testified to some factual matters of his own observation. 102.DW5 was unable to make any on-site inspection in respect of 223-3/F, 223-Roof, 225-3/F or 225-Roof. He prepared his expert report on the basis of his desk study (i.e. by studying documents available). He was not particularly forthcoming when asked if on-site investigation would be more reliable though in the end, he appeared to have conceded that on-site investigation would be more helpful. 103.DW5 said that water seepage could occur by reason of a multitude of factors and to ascertain the real causes of water seepage, one needs to eliminate step by step the possibilities that are improbable. 104.DW5 had opined that the photograph included in PW3's 1st Report as Figure 1 at B34 (showing the seepage marks on the wall separating 223-3/F and 225-3/F, inside the living room of 223-3/F) does not appear to be recent seepage marks that were formed for just days but should be there for already 2-3 years. He agreed, however, that there is no well established and widely recognized standard for judging the age of seepage marks. 105.DW5 had indicated on the plan marked Exhibit D10 the possible route of water seepage from the external wall of 223-3/F facing Prince Edward Road West, which travelled all the way across the width of 223-3/F to affect the front part of 223-3/F near the windows facing Sai Yee Street in the living room. He said that the water could have travelled horizontally in this manner during heavy rainfall for a duration as short as one night, as concrete is a porous material. 106.DW5 said that although 225-Roof was covered with tiles on the ground, the floor tiles were not water proofing materials and water could seep down through the joint between the tiles. 107.He said that 223-Roof was not a fully enclosed area. He referred to Figure 7 of PW3's 1st Report (at B37) and observed that the base of the metal pole is shown to be resting on the ground. He said that the screw for affixing the base of such metal pole would likely to be more than 3 inches long and would puncture the water proofing membrane below (if there was one). He also gave an explanation on the various kinds of equipment which could have been used to obtain more objective and scientific data relevant for establishing the real cause(s) of the subject water seepage incident. Assessment of Evidence 108.The evidence of PW1 appeared to be persuasive at first blush. He paused in the course of his testimony to show that he was careful enough not to give evidence which he was not sure of. However, in the end, I still have some difficulty in accepting the truthfulness or accuracy of his observations of the condition of 223-3/F when his evidence is not supported by the photograph evidence. It cannot be said that he did not have the interest of the 1st Plaintiff in mind when he gave evidence. He had given evidence on quantum and testified to the repair costs in respect of the damage to the Main Circuit Board in 223-3/F, said to be caused by the subject water seepage incident. That was not part of the demands the 1st Plaintiff had made towards the Defendant after the subject water seepage incident. PW1 appeared evasive when he was questioned on this subject. 109.PW2 is a truly independent witness. I accept his evidence in general. 110.As for PW3, I do not consider it necessary to dignify his evidence by any detailed analysis. It is obvious that he was careless, dogmatic, and lacking in objectivity. In general, I have difficulty in accepting his evidence when such evidence is challenged. His "expert reports", in particular the 1st Report, can hardly qualify as expert evidence: Herman Iskandar v. Bonardy Leo & Others, Civil Appeal No. 117 of 1987, 5 February 1988 considered. 111.DW1 is confused and vague in some parts of her evidence. I do not accept her evidence that there was not much rainwater collected on 225-Roof on 27 September 2005. 112.There was no serious challenge to the evidence of DW2, DW3 and DW4. I accept their evidence in general. In particular, I consider DW4 to be a truly independent witness. 113.I do not propose to go into detailed analysis of the evidence of DW5. Suffice to say that I do not accept his evidence that he could reliably judge the age of the seepage marks by desk study in the circumstances of this case. I do not attach much weight to his evidence. 114.The 1st Plaintiff has pleaded Res Ipsa Loquitur. Is there scope for this inferential mode of reasoning to operate, such that I should accept prima facie that the cause of the water seepage affecting 223-3/F in the subject water seepage incident is the rainwater that had accumulated on 225-Roof on 27 September 2005? I am guided by the principles on the subject of Res Ipsa Loquitur, as expounded in Sanfield Building Contractors Limited v. Li Kai Cheong, FACC No. 16 of 2002, 27 June 2003 in this connection. 115.I accept that there was accumulation of rainwater on 225-Roof on 27 September 2005 when PW1 attended there for checking out the situation. The accumulated rainwater reached some 2-3 inches deep. I also accept that by the time of DW2's visit to 223-3/F on 20 October 2005, there were symptoms of water seepage affecting at least (1) the ceiling and walls at the front of 223-3/F in the living room near the set of windows facing Sai Yee Street, (2) the ceiling in Bedroom No. 1 (the front room) near the windows facing Sai Yee Street at the bottom left corner on the floor plan, (3) a strip of the ceiling and wall (the wall separating 223-3/F and 225-3/F) near the main entrance of 223-3/F extending for some length towards the front, in the living room (see photographs at C190 and 200), and (4) at the ceiling and wall of the servant's quarters at the rear of 223-3/F, near the top left corner on the floor plan. I shall refer to them as seepage situations (1) to (4) hereafter. 116.In respect of the areas referred to in seepage situations (1) to (4) above, I accept that there were also water seepage symptoms at those areas at the time of PW1's visit on 27 September 2005, though he had not noticed all of them. Apart from those areas, I also accept that at the time of PW1's visit of 223-3/F on 27 September 2005, there were also water seepage symptoms affecting the wall near the Main Circuit Board. I shall refer to this as seepage situation (5) hereafter. 117.Seepage situations (1) to (5) do not tally exactly with the 1st Plaintiff's pleadings. In paragraph 4 of the Re-amended Statement of Claim, the 1st Plaintiff has pleaded about certain damage being caused to the ceiling of the toilet of 223-3/F. There is no or no sufficient evidence for me to make this finding. I am not prepared to find that at the time of PW1's visit on 27 September 2005 all the areas in 223-3/F referred to in seepage situations (1) to (5) above were exhibiting symptoms of ongoing water seepage. I am prepared to find that there were at least some symptoms of ongoing water seepage somewhere inside 223-3/F at the time. It is possible they were clustered around the ceiling and walls at the front part of 223-3/F near the set of windows facing Sai Yee Street. However, I am unable to say that it is probably so. I bear in mind the evidence of DW4, the former tenant of 223-3/F, that the water seepage problem was quite serious during the period of his occupation from 2002 to 2004. In his witness statement, DW4 described the water seepage situation as "small scale flooding", at least twice. The substance of DW4's evidence is that the water seepage problems occurred at the front part of 223-3/F at the time. I find that the problem was never resolved. I also bear in mind that the 1st Report of PW3 has made no mention of seepage marks inside 223-3/F that were felt to be still wet during his visit on 30 September 2005. In the circumstances, I am unable to find exactly which area in 223-3/F was exhibiting symptoms of ongoing water seepage at the time of PW1's visit on 27 September 2005. It is possible that some such areas displayed only old seepage symptoms, whereas some such area displayed symptoms of ongoing water seepage. PW1 said he saw water containers collecting water dripping down at the time of his visit of 223-3/F on 27 September 2005. No such photograph is before me. 118.I accept that PW1 had attended 223-3/F on 27 September 2005 in response to a complaint raised by the 2nd Plaintiff, the tenant of the 1st Plaintiff. I accept that the architect PW3 was summoned to the scene subsequently, on the same day. I should view this as evidence of some urgency in the situation. But granted that PW1 had seen rainwater being accumulated on 225-Roof at some depth, it is also possible that he was alarmed by the accumulation of water, rather than by reason of a serious flooding like situation in 223-3/F. 119.The accumulation of rainwater on 225-Roof on 27 September 2005, and the occurrence of some ongoing water seepage symptoms in 223-3/F, if taken in isolation, may possibly enable a Res Ipsa Loquitur inference to be drawn. But the two events do not stand alone. There is the evidence from PW2, which I accept, that there were occasions in which comparable amounts of rainwater had accumulated on 225-Roof since the middle of August 2005. On the evidence before me, I find it probable that there was no ongoing water seepage affecting 223-3/F since August 2005, until the subject water seepage incident. I do bear in mind that in the witness statement of DW3, he had mentioned his encounter with a female occupant of 223-3/F sometime about 11 September 2005 to 18 September 2005. The female occupant had complained to him of a water seepage problem affecting the ceiling of 223-3/F near the wall separating 223-Roof and 225-Roof. However, the evidence of the female occupant is hearsay and rather sketchy. DW3 did not enter 223-3/F to verify what he had heard from the female occupant. Sporadic or continued water seepage affecting 223-3/F in the period before the subject water seepage incident is not a part of the 1st Plaintiff's case against the Defendant in this trial. Rather, PW1's evidence painted the picture of the subject water seepage incident as a first time encountered situation of alarm, surprise and urgency. Since the accumulation of rainwater on 225-Roof was not a one-off event in August and September 2005 whereas the subject water seepage incident was, I do not consider that the evidence before me avails the 1st Plaintiff the benefit of the "doctrine" of Res Ipsa Loquitur. 120.I also bear in mind that the buildings in question were built at about the same time and therefore probably the same building methods and materials were used. Against these constant factors, different situations had arisen in respect of 223-3/F and 227-3/F in August and September 2005 when on repeated occasions, rainwater had accumulated on 225-Roof reaching some depths. In 223-3/F, there was no seepage but in 227-3/F, there was. From the photographs taken by PW2, the water seepage situation at 227-3/F was quite serious. One would have expected the 2nd Plaintiff to have raised complaint to the 1st Plaintiff of at least some water seepage affecting 223-3/F during the same period. There is no such evidence before me. As noted above, I find it probable that prior to the subject water seepage incident, there was no water seepage problem affecting 223-3/F. I rather consider the different situations arising respectively in 223-3/F and 227-3/F in the period before the subject water seepage incident give rise to a possible inference that somehow for some reasons 223-3/F did possess better water proofing capabilities than 227-3/F. 121.There is evidence before me at C279 that the total rainfall in Hong Kong in the month of August 2005 was 971.3 mm whereas it was 352.6 mm in the month of September 2005. Although these were only average statistics covering the whole of Hong Kong and local conditions might vary, there is no evidence before me that the amount of rainfall at where the subject buildings were situated was in anyway different from the overall average. 122.I consider that it would be unfair to find against the Defendant that there was sporadic water seepage or a continuous water seepage situation affecting 223-3/F prior to the subject water seepage incident on 27 September 2005 and then proceed to impose liability on the Defendant on that basis when the 1st Plaintiff's case is a one-off incident. 123.The 1st Plaintiff cannot benefit from the "doctrine" of Res Ipsa Loquitur. To prove that the water had originated from 225-Roof, something more is needed. Has the 1st Plaintiff succeeded in such proof in all the circumstances? 124.Of seepage situations (1) and (2) above, there is evidence that in the period 2002-2004, DW4 had experienced water seepage problems at more or less the same locations. I accept such evidence. I accept that the water seepage problem was never fully resolved. Although there is evidence from DW5 that the front exterior wall of 223-3/F was tiled, there is no evidence of any water proofing treatment to the front exterior wall. As to the side exterior wall facing Prince Edward Road West, I accept that the condition was rather poor and I consider that seepage through the side exterior walls of 223-3/F to the inside of 223-3/F to be possible. I accept that the front portion of 223-Roof was covered by metal plates and that they did not provide water proofing protection. PW3 had agreed to this. I accept that there was no water proofing protection at the frontage portion of 223-Roof. I am not prepared to find that the cause of seepage situations (1) or (2) was the accumulation of rainwater on 225-Roof. 125.Of seepage situation (3) above, I bear in mind the proximity factor. The area in question is close to or at the wall separating 223-3/F and 225-3/F. I am aware that there is no evidence of prior water seepage affecting these areas. The areas were at the top of the wall separating 223-3/F and 225-3/F and the ceiling adjacent thereto, inside the living room of 223-3/F. However, inasmuch as the accumulation of rainwater on 225-Roof coincided with the subject water seepage incident, the demolition of the top part of the wall between 223-Roof and 225-Roof in the latter part of August 2005 also means that the possibility of rainwater coming into 223-Roof over and above the parapet wall that was left behind, was enhanced thereafter. PW3 had agreed that the areas in 223-3/F affected by the seepage was below the base of the metal pole resting on the ground of 223-Roof. I accept that to be true while noting that the base of the metal pole in question is a small area but seepage situation (3) consists of a strip of some length. I consider also the possibility of rainwater flowing down along the edge of the parapet wall separating 223-Roof and 225-Roof and coming down to the ground along the parapet wall on the side of 223-Roof. I note that parts of the ground there were not covered even by any non-water-proofing decoration flooring materials. I also consider the possibility of rainwater that was collected on 223-Roof flowing towards the bottom of the parapet walls separating 223-Roof and 225-Roof because of the slight gradient, and then seeped downward. I bear in mind that I am not prepared to find that there were probably symptoms of ongoing water seepage in those areas though I do not dismiss that possibility. The decision here is not one that I have been able to arrive at without much hesitation and difficulty, but in the end I have concluded that, everything considered, although the 1st Plaintiff is very close to reaching the threshold of proof, it has by a narrow margin just fallen short of that. 126.Of seepage situation (4), I find that it is not the result of the accumulation of rainwater on 225-Roof. If anything, it shows that a part of 223-3/F that is most unlikely to be affected by the accumulation of rainwater on 225-Roof, was also affected by water seepage. In any event, the 1st Plaintiff has not pleaded about any damage in respect of seepage situation (4) and it is not open to me to find liability against the Defendant on this basis. 127.Of seepage situation (5), I find that in all the circumstances, in particular the physical circumstances, it is not probable that the source of the water seepage there had originated from the accumulation of rainwater on 225-Roof. Had the water travelled along this rather long and meandering route, it would be probable that similar seepage symptoms also existed along the route. This has not been established on facts. The absence of similar seepage symptoms along the route could be explained. There was however no plausible explanation. Orders 128.It is not proved on a balance of probabilities that any of the pleaded damage to 223-3/F was caused by the rainwater collected on 225-Roof on 27 September 2005. The Defendant is therefore not liable towards the 1st Plaintiff. In the circumstances, I do not propose to examine matters relating to the quantum of the 1st Plaintiff's claim. The Orders that I would make are as follows:-
Representation: Miss Jocelyn Leung, instructed by Messrs. Lam & Lai, for the 1st Plaintiff Miss Catherine K.K. Wong, instructed by Messrs. Lee Shing Fung & Co., for the Defendant |