Case Document

100%Judiciary

DCCJ 21504 /2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION ACTION NO. 21504 OF 2001

______________________

BETWEEN

	CHUNG CHE SHUM	1st Plaintiff
	CHEUNG CHOY YIN	2nd Plaintiff
	and
	DONG SAI MING FERNANDO	1^st Defendant
	CHAN POOI CHING	2^nd Defendant

______________________

Coram : Deputy District Judge M. Chow

Date of Hearing : 27^th, 28^th, 29^th November & 11^th December 2006

Date of Handing Down Judgment : 15^th February, 2007

JUDGMENT

1.This is a water leakage case that the Plaintiffs live in a flat immediately below the Defendants’ flat.

2.The Plaintiffs are the owner of the property since 1996 while the Defendants own the property since 1998. The Defendants had done renovation works to their flat including the master and guest bedroom’s bathrooms.

3.The areas of leakage in the Plaintiffs’ flat: -

a) The masterbedroom’s bathroom

b) The guest room’s bathroom

c) The kitchen

d) The helper’s toilet.

i) Yellowish stain found at ceiling soffit above water closet.

ii) Some localized areas at ceiling soffit found hollow during hammer test.

iii) The Defence does not take issue that the floor membrane on the Defendants’ helper’s toilet was aged and required to lay a new floor membrane to stop further leakage.

4.The Plaintiffs’ Case

(i) From about 1998 to 1999, there had been water seepage at the Plaintiffs’ premises. Since it was still within the defect liability period, Mr. Dong ( the Defendant ) asked their contractor responsible for the renovation work to rectify the problem. The workers also repainted the damaged ceiling of the Plaintiffs’ premises.

(ii) Since end of 1999 up to 2001, the problem appeared again.

(iii) The leakage: -

Water dripping appeared from the centre of the bathroom in the Master Bathroom in the area where the ceiling lights is located and resulting in short circuit;

Small drops of water began to accumulate near the light bulb in the centre of the Guest Bathroom causing the light to flicker from time to time;

Water damage causing malfunction of the exhaust fan mounted on the window next to the guest bathroom due to moist;

Leaking of water from the water pipe attached to the Defendants’ external wall with water running down the external wall of the Plaintiffs’ Premises;

Water marks on the Kitchen ceiling.

5.Complaint was made to the Defendants, Mr. Dong admitted that there was water leakage from his flat. He said that there was problem from the newly installed high water pressure bathtub in his master bathroom. Although he had asked the supply company to solve the problem, the rectification work remained unsatisfactory. Small amount of water still came out from the bathtub. Mr. Dong placed some newspaper underneath the bathtub to absorb the water.

6.According to the Plaintiffs’ expert, Mr. Poon, observation: -

Master Bathroom

During his visit on 18th December 2001: -

a) Lighting had been removed leaving a hole with electrical wires disconnected. Water stain found around the hole with water droplet;

b) Localized paint blistering and peeling off at ceiling soffit found;

c) The light was rusted.

During his visit on 18th December 2003: -

a) Seriously rusted u-trap was found upon opening up of bulkhead. Water droplets on surface of the u-trap and dripping onto shower cubicle continuously;

b) Rusty water was found along wall tiles inside shower cubicle;

c) Damp patches were observed on ceiling next to the bulk head;

d) Localized bulging plaster and plaster debonding were found upon tapping ceiling soffit.

Guest Bathroom

During his visit on 18th December 2001

e) Rusty stain at light bulb metal base;

f) Rusty stains on shower curtain metal railing;

g) Localized paint blistering and plaster debonding at ceiling soffit were found;

h) The lighting previously used in the bathroom supplied by the Plaintiffs was found rusted;

i) Mr. Poon found switch of exhaust fan crossed with strips and abandoned.

During his visit on 18th December 2003

j) Wide spread dark damp patches over ceiling soffits were found;

k) Water leakage and fungi stains were found from drainage outlet of Defendants’ Premises on the external wall surface.

7.The Plaintiffs made complaints to the Management of the building in 2001.

8.On 30/8/2001, the Management informed the Defendants by a letter that: -

“ a pressure testing had been carried out and found that there was leakage on the concealed fresh water pipe leading water seepage to downstairs.”

9.In October, 2001, Mr. Dong instructed his contractor to open up some titles in his guest bathroom. Mrs. Chung saw some water collected on the floor. There was some traces of water on the drainage pipe. Mrs. Chung requested the workman to open up more titles to identify the source of the leakage, but was refused by Mr. Dong who claimed that the source of water should be from the outside wall or his neighbour Flat C2, 5/F.

10.Sometime later, Mr. Dong informed Mrs. Chung that a hole had been drilled on the wall of the guest bathroom to let the water out.

11.On 17/12/2001, there was a short circuit in the Plaintiffs’ flat. P.71 of D bundle refers.

The Defence Case: -

12.The Defence pleaded case dated 13.3.2003

“ The Defendant avers that if there was any water seepage into the Plaintiff, which is not admitted, water might have leaked from other unit or units of Tower B or Tower C of the Wilshire Towers through the common wall between the two towers.”

13.In accordance to the opinion of the Defendants’ expert that the water leakage in Flat 4C1 had nothing to do with the Defendants, rather, any leakage of water should be from the adjacent unit, Flat 5C2 and/or from the external wall of the building.

Burden of proof

14.When I assess all the evidence before me, I bear in mind that it is the duty of Plaintiffs to show that source of water came from the Defendants’ premises. There is no presumption that the source of leakage would necessarily come from the flat above.

Flat 5C2

15.It was undeniable facts that the Plaintiffs’ complaint was serious and persistent. From the end of 1999 to 2001, there were numerous complaints. To the Management of Wilshire Tower, to the Building Department, to Water Authority and to the Food and Environmental Hygiene Department (FEHD). These complaint letters were all well documented in the bundles.

16.In 1999, in response to the complaint by Mrs. Chung, Mr. Dong had instructed his contractor to look at the matter because the renovation works was still within the maintenance period, he called the contractor to fix the problem.

17.According to the Plaintiffs, water leaking still existed.

18.In October, 2001, in response to further complaints from the Plaintiffs, Mr. Dong asked his plumber to do a full inspection as to all the drain/ supply pipes of his flat. The plumber removed some titles in his guest bathroom and found some traces of water on the drainage pipes and there was water collected on the floor. The Defense agreed that the plumber was not a registered plumber.

19.It was in this inspection, the plumber told Mr. Dong that water should have come from the outside wall or from his neighbour flat 5C2.

20.It seems that Mr. Dong and his expert accepted this explanation that water leakage was from the next door neighbour because they shared a common wall between their bathrooms.

21.A water test was carried out in Flat 5C2, the Defendants claimed that there was water leakage in Flat 5C2.

22.According to the owners of flat 5C2 who wrote a letter to the Plaintiffs’ solicitors dated 18.May, 2003: -

“ the water leakage test was conducted under a pressure of 150 pounds and it was immediately found that the water pipe of the gas heater in the toilet of our ---- master bathroom leaked in a state of trickling. -------------- and it explained why there was a pressure drop from 150 pounds to 50 pounds. The leak was subsequently repaired and we paid for the repair expenses.”

We have sought professional opinion that it was suspected that the pipe leakage might be caused by such a high pressure. The company carried out the leakage test should answer whether the 150 pounds pressure was properly used and who is responsible for the pipe leakage within our property as a result of the high pressure leakage test. The professional views are that there is no concrete evidence that the water seepage in your clients’ flat is due to unconfirmed water leakage from our property.”

23.From the content of this letter, ( at D bundle 122 ) , the owners of Flat 5C2 had repaired the leaked pipe. Whether the pipe was burst by the 150 pounds water test or it was leaked before the test, the repaired work have been done on 12.3.2003. One day before the Defendants filed his defence.

24.Mr. Poon considered that the chance for the source of water leakage came from Flat 5C2 was remote. He said in his report dated 12/2003 ( D bundle P.49 ) that “it was questionable why water leaked from the adjoining flat, by-pass Flat 4C2 ( downstairs) and directly leaked into the Plaintiffs’ flat.” Mr. Poon found it doubtful that water could travel a long distance without going down directly to the floor below, but leaked separately into two bathrooms of the Plaintiffs’ flat.

25.The Plaintiffs’ solicitors made enquiry from the Management at 12/2003 ( D137 ) and 2/2004 ( D139 ) and was confirmed that there was no complaint of water leakage from the occupants in Flat 4C2.

26.The defence said that the confirmation from the Management was 3 years ago and it was unknown whether there was any water leakage in Flat 4C2 since then. In fact, the Plaintiffs’ evidence was that water leakage in the bathrooms could cause short-circuit and/or power failure ( D71-72 ). With respect, I doubt very much that any occupant could have tolerated water leakage in his/ her flat without informing the Management or raise a slightest complaint.

27.In addition, a report from the Management dated 29th September 2002 (D p.107), the Management found “no visible evidence to indicate the possibility of water leakage originally migrated from Flat 5C2.”

28.With this background in mind, I am not convince by the Defendants’ defence that water leakage came from his neighbour, Flat 5C2. The Defendants’ opinion did sound absurd and I tend to agree with the Plaintiffs’ expert opinion.

External Wall

29.Mr. Lee suggested that water leakage may be from the external wall.

30.In Mr. Poon first report, he noticed that water leakage from the Defendants’ premises to the outer walls of the guest bathroom was noticeable.

31.From photo 14 of the surveyor’s report ( D-p.64 ) that “there were fungi stains at the external walls leaked from drainage pipe outlet of the Defendant premises”.

32.Mr. Poon noticed that between the 2003 and 2005 visit, there was a new drainage pipe being installed and the titles on the external wall had been cleaned up.

33.In Mr. Dong’s evidence, he said that the Management had changed the pipes for the whole Building in 2003/ 2004. That explained what Mr. Poon’s notice of the clean titles and the new pipes.

34.The Defendants’ survey report stated that there was no water leakage from the external wall of the Defendants and the Plaintiffs’ master bedrooms’ bathroom. The external wall of the guest bathroom was also “appeared dry at the time” of his inspection. The external wall of the kitchens and the helper’s toilet “was in similar condition and no water leakage noted at 5/f ”.

35.In fact, the Management on 20/9/2003 informed the Plaintiffs’ solicitors that “there is no indication that the water seepage was from the external wall of the building.”

36.In conclusion, it is clear to me that the leakage is not from the external wall.

The Food and Environmental Hygiene Department ( FEHD ) – dye test 8/2001

37.The Defence did place emphasis on the FEHD’s dye test which was carried out in 8/2001 to the Defendants’ premise’s drain pipes in both bathrooms. The result was “no adverse report was received from FEHD after the said tests”.

38.Mr. Chung of the Plaintiffs said that after the dye test, there was orange colour dye appeared in the bathroom. However, there was no evidence to suggest what colour of the dye was.

39.In fact, the Defendants had instructed the plumber to remove some titles in the guest bathroom in Oct/2001 to inspect the condition of the pipes. It was found that the floor had “collected some water” and there was traces of water on the drainage pipes.

40.The plumber drilled a hole on the wall to let the water run out to the external wall.

41.The dye test in 8/2001, in my view, was neither here nor there, as there was traces of water on the drainage pipe in the Defendants’ bathroom.

42.The dye test could not be conclusive evidence to rule out that there was no leakage from the Defendants’ flat.

43.Further, there was no evidence before me as to how the dye test was carried out. I attached no weight to the Defendants’ allegation that “ there was no adverse report was received from FEHD after the said test.”

The Expert’s Finding

44.Mr. Poon in his first report 12/2001 stated: -

“ water droplets were found around the hole for lighting at Lav 1 ( The Plaintiffs’ master bathroom ) during our inspection. We opined that the water source was of continuous nature and had progressively seeped through the slab downward. We believe that the water has seeped from leaked water pipe embedded inside the concrete slab at floor above.”

45.In 3/2002, when he had the opportunity to visit and inspect the Defendants’ bathrooms, Mr. Poon maintained the same view that he formed in 12/2001.

46.In 12/2003, there was another site inspection to the Plaintiffs’ premises and Mr. Poon was informed by the Plaintiffs that the water leakage problem was further deteriorated.

1. The Plaintiffs’ Master bathroom

1) Mr. Poon found the bulk head above the shower cubicle was has been removed. It showed a seriously rusted cast iron u-trap which was installed for the bathtub of the Defendants. Water droplets were found on the surface of the u-trap and the ceiling soffit. Water dripped onto the shower cubicle. It meant that the u-trap for the bathtub was still in used as the water continued to drip.

2) Mr. Poon concluded that the u-trap formed part of the drainage system of the Defendants’ premises and was a water-leakage source inducing waster leakage problem at the corner above the cubicle of the Plaintiffs’ master bathroom.

47.In Sept/2004, there was an infra-red thermographic test carried out in the Plaintiffs’ premises without access to the Defendants’ premises, the findings were: -

1) There were signs of water seepage detected at the exposed u-trap above the shower cubicle in the master bedroom and other ceiling soffit in the master bedroom.

2) there was water leakage detected at the ceiling soffit near central lighting inside the guest bathroom.

3) Water leakage was detected in the helper’s toilet (the Defendants do not take issue of this claim.)

48.In Nov/ 2005, there was another rapid infra-red thermographic scanning test. The Plaintiffs’ surveyor was allowed to go into the Defendants’ bathrooms to carry out 6 water tests in the Defendants’ premises: -

The master bathroom: -

1) water test 1: - at the drain of the bathtub for 15 minutes

2) water test 2: - at the floor drain for 15 minutes

3) water test 3: - drain the wash basin for 15 minutes

The guest bathroom: -

1) water test 4: - at the drain of the shower tray for 15 minutes

2) water test 5: - at the floor drain for 15 minutes

3) water test 6: - at the drain of toilet bowl for 15 minutes

The Findings are: -

1) signs of water seepage detected at the Plaintiffs’ master bathroom after conducting water test 3.

2) other signs of water leakage stain was found near the central lighting and also at the wall-floor corner near edge beam next to the Master bathroom.

3) The scanning results of R.I.T.S. Report on 3 November 2005 have revealed that “water leakage stains were found at ceiling soffit and ceiling corner near edge beam next to master bedroom after water draining test at wash basin of the Defendants’ Premises. This phenomenon is conclusive evidence that water had leaked through concealed drainpipes or its connections for wash basin of the Defendants’ Premises.”

4) The report further explained the findings of difference of the two RITS test in 9/2004 and 11/2005: -

“ we discovered that formerly water droplets and wetted surface surround u-trap of floor drain of the Defendant’s premises was no longer wetted and the water seepage stains detected on 6/9/2004 at the (guest bathroom) was alleviated -----------, according to our observation, the drain cover for floor drain of the Defendant’s Premises has been firmly fixed with white cement sand grouting disregards of the surrounding tile pointings in grey colour. The only conclusion is that some repair works surrounding the floor drain have been carried out.” ( D p.71 ).

49.The Defendants disputed the reliability and accuracy of the rapid infra-red thermographic scanning.

50.In the surveyor’s report at ( D p.70 ) , it described the rapid infra-red thermographic scanning survey: -

“ is a process of converting the head emitted from an object into a visible dynamic TV-like picture. Any temperature changes are detected and recorded as a predictive tool of locating water penetration and the extent of water ingress into a structure in order to identify any potential water seepage. The presence of water medium with varied temperature to surrounding substrates would interpret in “blue” colour inside the R.I.T.S. Report.

51.Mr. Poon said that the temperature at the locations detected blue colour after water test 3 was due to change of ‘ambient temperature’, one has to bear in mind that the R.I.T.S. took place between 9:30 am to 4 pm. It is obvious that there is a variation of temperature between 9:30 am to 4 pm.

52.The purpose of setting blue colour in the image is for purpose of clarity and focus among the colours.

53.Mr. Lee did mention in his evidence that R.I.T.S. was commonly used at external wall, but protimeter would be used for indoor inspection.

54.R.I.T.S. involved detail procedures in detecting water leakage such as taking images before dry conditions, drain each and individual drainage pipes for 15 minutes before taking image again to determine the actual location of water leakage. R.I.T.S. can check the location of 3”-4” depth.

55.The machine for performing R.I.T.S. costs about $100,000 and it requires professionally trained technician to operate the machine. Mr. Poon said the result of the R.I.T.S survey was highly reliable.

56.While the Defense used protimeter which costs $1,500, a pen-like object to ascertain the moisture content of the wall surface to arrive at the conclusion. When pressed the tip of protimeter against the surface of wall/ ceiling, it can only penetrate 2-3 mm. A very thin layer on the wall surface with visual inspection. The contact area is also very small. No reading has been supplied to this Court

57.I certainly do not understand why R.I.T.S. can be used on the external wall, why it cannot be used for indoor test?

58.While the Defense accepted that water leaking in the Plaintiffs’ helper’s toilet is originated from Defendants’ helper’s toilet. The R.I.T.S. on both occasions, i.e. 9/2004 and 11/2005 detected water leakage in the Plaintiffs’ helper’s toilet. 11/2005 R.I.T.S. confirmed the water leakage was from the Defendants’ helper toilet down to the Plaintiffs’

59.With this information and analysis in mind, I do accept Mr. Poon’s evidence the R.I.T.S. is a more reliable and accurate test.

60.I accept his conclusion that the source of water leakage was from the Defendants’ premises.

Kitchen

61.Mr. Chung said that the water leakage in the kitchen started after the Defendants changed his water pipe.

62.In the Defendant’s expert report, it stated that “damp patch of about 0.3m2 and minor blistering of the paintwork” with “high water moisture”, but “found it difficult to explain the source of water which caused the dampness on the ceiling of the Plaintiffs’ kitchen”.

63.However, Mr. Lee in his evidence said that the damp patch on the kitchen ceiling might be caused by the air-conditioner. When it was turned on, cool air blew to that corner and caused damp patch to be formed.

64.Mr. Chung was not cross examined about the air-conditioner situated at the kitchen. It is certainly a new debatable point that air conditioner can cause “damp patch on the ceiling with high water moisture”. I found this argument was too far-fetched.

65.Having said that, Mr. Lee in his evidence said that the drain pipe connected to the sinks go directly out to the external wall, the length of the embedded section was only 4 inches. The external wall of the Defendants’ kitchen has no sign of water leakage. Further, there was no indication of water leakage inside the sink cabinet of the Defendants’ kitchen.

66.Therefore, Mr. Poon’s opinion that the source of leakage is in the embedded pipe at the Defendants’ kitchen is neither supported by circumstantial evidence nor by any test. It is therefore unsafe for me to come to the conclusion that the Plaintiffs’ damp patch comes from the Defendants’ kitchen.

Injunction

67.Having found the Defendants liable for the water leakage in all the Plaintiffs’ bathrooms, I grant injunction orders to the Plaintiffs. The requirement of registered plumbers must engage by the Defendants to carry out the repair work. Proper investigations to the actual locations of water leakage needed to be carried out before repair works is to be done.

Special Damage

68.The Plaintiffs relied on Mr. Poon’s assessment that the estimated costs is $95,000. This assessment was done in 2001. The Plaintiffs are contended to take the sum of $95,000.

(HK$)

1. Site Preparation 8,000

2. Hack off floor screed, replace defective section of water pipes and reinstate floor screed at Ds’ Premises 26,000

3. Conduct epoxy resin injection to water stained areas at Master’s Bathroom and Amah’s bathrooms 12,000

4. Make good and re-painting to ceiling soffits at the bathrooms 9,000

5. Install concealed electrical conduits and re-wire from main switch board to Master’s Bathroom and Guest Bathroom and make good all affected finished 33,000

6. Replacement of two lightings at Master’s Bathroom and Guest Bathroom 4,000

7. General Cleaning 3,000

95,000

Deduct - 26,000

TOTAL 69,000

69.In respect of item 2, I believe that it would be convenient for the Defendants to do this part of the work. Both parties agreed that $26,000 should be deducted. The Defendants should pay $69,000 to the Plaintiffs to carry out the repair works. Cooperation between the Plaintiffs and the Defendants are essential in order to carry the repairs work.

General Damages for distress and inconvenience

70.Both counsel referred me to the cases of So John v Lau Hon Man (1993) 2 HKC 356, Leung Yung Chun v Chan Wing Sang (2000) 1 HKLRD 456 and Siu Kam Wong v Leung Kin Hing, unreported, HCA 12343/1997 15/6/1999.

71.In Leung Yung Chun’s case, the Court held that “ this is clearly a recoverable item.”

72.The Plaintiffs considered that the general damages should not be less than $80,000 while the Defendants took the view that $25,000 was the appropriate sum to be awarded.

73.In the case of So John v Lau Hon Man (1993) 2 HKC, the Court held: -

“ there is no scientific way of translating inconvenience and discomfort into a sum of money: it had to be a conventional sum . $10,000 was a fair assessment for the inconvenience and discomfort suffered by the appellant.”

74.In fact in Chan Fei Lung v Mansion Products Ltd. and Others (1990)1 HKC 504, the Court awarded $25,000 as damages for nuisance for a period of two months.

75.In the present case, the affected area included three bathrooms. I do aware that the Plaintiffs have not engaged the services of a domestic helper, the two main bathrooms are for the daily use of the Plaintiffs’ family.

76.Photos showed the paints on the ceilings of the bathrooms also peeled off. The water leakage in these two bathrooms undoubtedly has created unnecessary works for Mrs. Chung.

77.The water seepage had caused power failure in 12/2001, the Plaintiffs had to discontinue the use of the exhausted fan in the guest bathroom.

78.It is obvious to me that repair works to the three bathrooms are unavoidable. It is always inconvenient to any household when repair works are to be carried out during occupancy.

79.I also bear in mind that the Plaintiffs suffered the distress and inconvenience in the present case is much longer that all the cases referred to by both counsel. In deciding the amount of damages, I do take into account of the attitude of the Mr. Dong in response to the Plaintiffs complaint in 1999 and 2001, he took steps to solve the problems, although the results were entirely unsatisfactory. Finally, I consider that the proper amount to be awarded for general damages should be $80,000.

Order

1) Special Damages: $69,000.

2) General Damages: $80,000 with interest at 2% per annum from the date of Writ to the date hereof.

3) Injunction orders against the Defendants.

4) Costs follow the events, costs to the Plaintiffs with Counsel’s certificate, to be taxed if not agreed. Order Nisi. 14 days to become absolute.