倪瑞武及另一人 v. 恒陞大樓業主立案法團及另一人
Read the full judgment text of DCCJ 4651/2005 on BabelCite. This District Court judgment.
1. This is a claim by two co-owners of Flat 6 on the 7th Floor ("the subject premises") of Hang Sing Mansion ("the subject building") at nos. 48-78 High Street, Hong Kong against the incorporated owners of the building. The two co-owners are husband and wife. They were not legally represented. When the case came up for trial, the two co-owners were simply designated as "Plaintiff" in the writ. Leave was granted for the necessary amendments. After the amendments, the husband has become the 1st Pl
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DCCJ 4651/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4651 OF 2005 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge R. Cheung in Court Date s of Hearing: 29th, 30th, 31st January 2007 and 1st February 2007 Date of Handing down Judgment: 28th February 2007 --------------------- JUDGMENT ---------------------- 1.This is a claim by two co-owners of Flat 6 on the 7th Floor ("the subject premises") of Hang Sing Mansion ("the subject building") at nos. 48-78 High Street, Hong Kong against the incorporated owners of the building. The two co-owners are husband and wife. They were not legally represented. When the case came up for trial, the two co-owners were simply designated as "Plaintiff" in the writ. Leave was granted for the necessary amendments. After the amendments, the husband has become the 1st Plaintiff and the wife the 2nd Plaintiff. 2.The proceedings were originally issued against two Defendants. The 1st Defendant is the incorporated owners of the building. The 2nd Defendant New Gem Property Management & Agency Limited ("New Gem") is the management company engaged by the 1st Defendant. The claim against the 2nd Defendant had been discontinued before trial. 3.The homemade pleadings of the 1st and 2nd Plaintiffs were in a pathetic state. The trial bundle prepared by the solicitors for the 1st Defendant fared no better. The witness statements on both sides were patently inadequate. I noted that if the law and rules relating to pleadings were strictly applied, the 1st and 2nd Plaintiffs would be waging a hopeless battle against the 1st Defendant. 4.These matters were raised with Counsel for the 1st Defendant, who in a display of extraordinary magnanimity elected not to insist on strict compliance with the law and rules relating to pleadings. It was understood and accepted that the trial would be conducted very much in the style and manner as a trial in the Small Claims Tribunal, save that the Court has no duty to enquire. It was understood and accepted, for example, that the 1st and 2nd Plaintiffs would be entitled to rely on the "doctrine" of Res Ipsa Loquitur although they had not pleaded the same. Recourse was made to Order 18 Rule 21 of the Rules of District Court. 5.It was agreed that issues would be framed for the 1st and 2nd Plaintiffs, on a broad, rough and ready basis. As gleaned from the trial documents and from the submissions of the 1st and 2nd Plaintiffs, four broad allegations on the part of the 1st and 2nd Plaintiffs against the Defendant were initially identified, as follows. 6.First, during the period from about Mid-January 2001 to about May 2003, sewage water from the communal sewage pipe on the external wall of the subject building fell down from above and landed on the split type air conditioner of the 1st and 2nd Plaintiffs installed outside the subject premises. This situation had persisted throughout the above period. The 1st Defendant was under a duty owed to the 1st and 2nd Plaintiffs at law not to cause or allow this to happen and the 1st Defendant had been in breach of that duty. The 1st and 2nd Plaintiffs have thus suffered loss and damage. They claim damages therefor. 7.Second, on about 9 July 2003, a section of a flushing water pipe on the external wall of the subject building did burst and flushing water did gush out and come into the subject premises causing damage. The 1st Defendant was under a duty owed to the 1st and 2nd Plaintiffs at law not to cause or allow this to happen and the 1st Defendant was in breach of that duty. The 1st and 2nd Plaintiffs claim damages therefor. 8.Third, in about October 2003, there was no flushing water supply for the subject premises for a period of several weeks. The 1st Defendant was under a duty at law owed to the 1st and 2nd Plaintiffs not to cause or allow this to happen and the 1st Defendant was in breach of that duty. The 1st and 2nd Plaintiffs claim damages therefor. 9.Fourth, from about January 2001 to the middle of 2005, the main gate at the ground floor of the subject building was often inappropriately left open for long periods of time. The 1st Defendant was under a duty at law owed to the 1st and 2nd Plaintiffs not to cause or allow this to happen and the 1st Defendant was in breach of that duty. The 1st and 2nd Plaintiffs claim damages therefor. 10.It subsequently transpired in the course of the trial that there was another burst of flushing water pipe incident that took place on about 11 April 2003 that affected the subject premises. This did not form a part of the claim of the 1st and 2nd Plaintiffs against the 1st Defendant in the trial. 11.There was also evidence that there was damage to a private gas pipe serving the subject premises and the neighbouring premises (Flat 7 on 7th Floor of the subject building). That also does not form a part of the claim of the 1st and 2nd Plaintiffs in this trial. 12.At an early stage of the proceedings, there was concern as to whether the 2nd Plaintiff's claim was within the jurisdiction of the District Court. The situation arose as follows. Although strict compliance with the law and rules relating to pleadings was dispensed with, I take that for a trial to be fair, the 1st Defendant is entitled to know what damages the 1st and 2nd Plaintiffs are specifically claiming, both as to their nature and quantum, at least in a broad sense. 13.For the 2nd Plaintiff's claim to fall within the jurisdiction of the District Court, the special damages and general damages she claims against the 1st Defendant will have to be over $50,000.00. 14.On the first allegation above, the 1st and 2nd Plaintiffs did state their special damages. The 1st Plaintiff said that the split type air conditioner was his own property to the exclusion of the 2nd Plaintiff. As for general damages, the 1st Plaintiff maintained that he would claim for general damages to be assessed in respect of what he loosely described as the discomfort, nuisance and irritation that he had suffered. His case is that such damages would be no less than $350,000.00. The 2nd Plaintiff however indicated that she would not be claiming for general damages under the first allegation above. 15.On the second and third allegations above, the 1st and 2nd Plaintiffs indicated that they would not be claiming for any damages. These do not form part of the claim of the 1st and 2nd Plaintiffs at the trial. 16.On the fourth allegation above, the 1st and 2nd Plaintiffs stated that they had suffered no tangible loss but that both of them would claim for general damages to be assessed, on the ground, loosely stated, that the 1st Defendant's breach of duty had caused them discomfort and also to fear about their security. 17.The jurisdiction point was therefore whether the total of the special damages and general damages claimed by the 2nd Plaintiff under the first and fourth allegations above amounted to more than $50,000.00, so as to confer jurisdiction on the District Court. It was resolved by the 2nd Plaintiff's indication that her such claim did exceed $50,000.00. PW1 18.The 1st Plaintiff is PW1. He is a construction site worker. The 1st and 2nd Plaintiffs were married in 1990. On 16 October 2000, they became co-owners (as joint tenants) of the subject premises. On 25 May 2005, the 1st Plaintiff assigned all his interest in the subject premises to the 2nd Plaintiff. In July 2006, the 1st Plaintiff moved out of the subject premises. The 1st Plaintiff and the 2nd Plaintiff still remained as husband and wife at law. 19.PW1 bought a split type air conditioner on about 4 November 2000 at the costs of $4,000.00 odd. He incurred $3,000.00 odd for the installation of the split type air-conditioner and on top of that he paid $2,000.00 for erecting a scaffolding required for the installation works. His total expenses came to over $10,000.00. The compressor unit of the split type air conditioner was installed outside the external wall of the master bedroom, below the windows there. It was supported by a metal frame below. For a rough plan of the subject premises hand drawn by PW1, see Exhibit P2. For photographic illustration of the external appearance of the subject premises, see the photographs at Trial Bundle pages nos. 327-330 (hereinafter "TB327-330", mutatis mutandis). 20.PW1 has never seen with his own eyes the source of the problem that led to the sewage water from the communal sewage pipe to fall down. 21.In Mid-January 2001, he heard some sound coming from the split type air conditioner installed outside the subject premises. He looked and found there was a patch of water on the top of the split type air conditioner. The water was colourless. He did not smell it. The following day early in the morning, he heard the sound of water hitting the split type air conditioner again. He went to take a look but could not see where the water came from, although he did see water coming down from above. He believed that the water was discharged from the sewage pipe above as he saw some hair in the water. 22.From Mid-January 2001 to 31 January 2001, the above situation persisted everyday. At times, sewage water came down like buckets of water being poured down. It occurred mostly early in the morning at about 6 a.m. and in the evening time when people returned to their homes after work. 23.Upon discovery of the problem, PW1 had first complained to the management company A.G. Wilkinson & Associates Property Management Ltd. ("Wilkinson") and to the 1st Defendant. Sometime before 28 June 2001, PW1 approached a Counsellor for assistance. 24.The above situation continued throughout 2001. In November or December 2001, the management company Wilkinson erected two stainless steel canopies outside the subject premises, one above the window of the master bedroom and the other above the window of the toilet. The situation improved a little after that but nevertheless, sewage water from above still fell onto the top of the split type air conditioner. 25.In 2002, the situation remained the same. There was also no change during the period from January 2003 to May 2003. 26.The 1st Defendant had engaged a contractor called Tak Cheong Construction (Development) Co. Ltd. ("Tak Cheong") for carrying out the major renovation works of the subject building. 27.On 11 April 2003, while in the course of replacing the pipes installed on the external walls of the subject building, the staff of Tak Cheong accidentally caused a section of the flushing water pipe nearby to burst. According to PW1, the incident caused flushing water to come into the subject premises. The flooding lasted for two hours. The flushing water that came out did affect and damage the split type air conditioner. 28.On about 9 July 2003, PW1 again complained to the management of the subject building about the burst of a section of the flushing water pipe outside the subject premises. According to PW1, the flushing water that came out did affect and damage the split type air conditioner. The flooding incident lasted for about an hour. 29.PW1's evidence is that the communal sewage pipe of the subject building was located at the corner between the external walls of the master bedroom and the toilet of the subject premises. Before the major renovation works for the subject building were undertaken in 2003, the sewage pipe system of the subject building was not a fully closed system. At each floor of the subject building, there were funnel like devices affixed to the communal sewage pipe (a vertical pipe) to collect sewage water discharged from the private sewage pipes (horizontal pipes) serving the individual flats of that floor. After the major renovation works were undertaken, the sewage pipe system of the subject building became a fully closed system. The private sewage pipes at each floor of the building were physically connected to the communal sewage pipe. The funnel type devices were gone. 30.On about 16 August 2005, PW1 noticed that the split type air conditioner had become unstable and was liable to fall. There was a typhoon coming. He caused the split type air conditioner to be dismantled by a Hang Park Decoration Company ("Hang Park"), who issued an invoice to him which covered the costs of the dismantling and other repair jobs. 31.PW1 said that in the past there was no air conditioning at the ground floor of the subject building. There were only fans. The caretakers at the management office often kept the main gate open for ventilation purpose except in winter times. This made PW1 to feel insecure as there was no registration system of strangers coming into the subject building. DW1 32.DW1 has been living in the subject building since 1972. Since about 1980, he had been the Secretary of the Management Committee of the 1st Defendant. On about 19 September 2001, he became the Chairman of the Management Committee of the 1st Defendant and continued to be so until about March or April 2003. 33.DW1 first met the 1st Plaintiff in about November 2001. This came about as a caretaker of the subject building had related to him the 1st Plaintiff's complaint in relation to the gas pipe outside the subject premises. The 1st Plaintiff had indicated that he had received a bill issued by the gas company relating to the replacement costs of the gas pipe. DW1 went to the subject premises in the evening to make an inspection. DW1 observed that the gas pipe in question was not a communal gas pipe and he therefore told the 1st Plaintiff that the latter would have to bear the costs for its replacement. 34.DW1 said that that was the first and only meeting between him and the 1st Plaintiff. The 1st and 2nd Plaintiffs had never directly complained to him of any water leakage/dripping problem personally. Complaints of such nature were usually made to the management office of the subject building and such complaints would receive follow up attention by the management company engaged by the 1st Defendant. 35.DW1 was only indirectly informed of the 1st and 2nd Plaintiffs' complaint about the leakage of the sewage pipe. It was a caretaker of the management office who related the 1st and 2nd Plaintiffs' complaint in that connection to him. DW1's practice in situations like this was to get the caretakers to follow up on the complaint. 36.According to DW1, he had heard from the management company Wilkinson that the actual cause of the so called sewage pipe leakage that affected the subject premises was actually water dripping down from some air conditioners installed on the upper floors. 37.DW1 was aware that two stainless steel canopies were installed outside the subject premises to address the problem. He could not remember exactly when this was done but he said that it was done in 2001. 38.DW1 referred to the photograph at TB327 and said that it showed the condition of the subject building after the major renovation works were undertaken in 2003. The vertical pipe at the corner between the red wall and the pink wall is according to him the communal sewage pipe serving the subject building, before as well as after the major renovations works were undertaken. The position of the vertical communal sewage pipe has not changed. There are horizontal private sewage pipes connected to the communal sewage pipe at each level of the subject building. These private sewage pipes are smaller and they serve to drain away the sewage water discharged from the bath-tubs, the washing basins and drainage outlets inside the flats to the communal sewage pipe. Prior to the undertaking of the major renovation works, the private sewage pipes were not physically connected to the communal sewage pipe. There were funnel like devices at each floor affixed to the communal sewage pipe down which the sewage water from the private sewage pipes was discharged, collected and channelled to the communal sewage pipe. After the major renovation works were undertaken, the funnel like devices are gone. The private sewage pipes are physically connected to the communal sewage pipe forming a closed system. 39.DW1 said he was aware that before the major renovation works were undertaken, there were instances in which things dropped from above or growing plants choked up the communal sewage pipe at the funnel like devices, causing sewage water to splash out. DW1 said that the management office would act promptly upon receiving such complaints and that the blockage would normally be cleared in one or two days' time. Sometimes they would act on an urgent basis, even late at night. The management office used to engage a contractor called Sun Kee Pipe Works ("Sun Kee") to do the job. There are some bills from Sun Kee evidencing such job orders being placed on Sun Kee. Sometimes the management company would take the initiative to clear such blockage even when no complaint was received. Caretakers would be able to spot such situations when they patrolled the subject building. 40.DW1 said that although he had seen sewage water splashing out from such choked funnel like device, he had never come across a situation close to what was described by PW1 - that sewage water came down like buckets of water being poured down. According to what DW1 heard from the caretakers, the splashing out of sewage water occurred mostly during evening time when the residents of the flats returned home to take showers or prepared dinner etc. 41.DW1 said that the 1st and 2nd Plaintiffs had never complained to him of the choking up of the funnel like devices. 42.DW1 said that if the management office of the subject building received a complaint about water dripping down from air conditioners above, the caretakers would contact the owners of the air conditioners to have the problem rectified. If there was water seepage from a certain flat to the flat below, the caretakers would also notify the upper floor flat owner to have the problem rectified. 43.DW1 confirmed that he had seen the building order dated 7 December 1998 affecting the subject building. Meetings were held to deal with the matter. The 1st Defendant engaged a consultant and subsequently tenders were invited and a contractor Tak Cheong was subsequently selected as the contractor for carrying out the major renovation works for the subject building, during owners meetings held in 2002. The 1st Defendant entered into a contract with Tak Cheong in 2003. On 18 November 2004, a Letter of Compliance in relation to the above building order was issued by the Building Department. 44.As to the main gate of the subject building, DW1's evidence is that the subject building has only one entrance/exit at the ground floor level. There was a stainless steel gate which does not allow for ventilation. The management office was situated on the ground floor. There were two hanging fans. In 2005, air conditioners were installed at the ground floor. The residents of the building could open the main gate by keying in the pass code. The caretakers at the management office would also open the main gate for familiar residents of the subject building. They would question any strangers the purpose of their visit. 45.DW1 said in his experience, he had never seen caretakers leaving the main gate open for an inappropriate length of time although in the evening between 8 to 8:30 p.m., the main gate was often left open to enable the garbage of the subject building to be removed. DW1 said that in the past on average he would be going through the main gate of the subject building four times a day. 46.DW1 also said that the building in question had experienced no burglary so far although he was aware of an incident of burglary taking place in a nearby building. Discussion and Finding of Facts 47.There is no conflict between the evidence of PW1 and DW1 as to how the old communal sewage pipe looked like. I accept the evidence of PW1 in paragraph 29 above and the evidence of DW1 in paragraph 38 above. Although the funnel like devices at each floor served the owners and occupiers of that floor only but not the other floors, it is unrealistic to view them as private properties of the owners of each floor. I find them to be part and parcel of the communal sewage pipe system serving the subject building. The communal sewage pipe is a common part of the subject building. 48.Both PW1 and DW1 were not fully forthcoming in presenting the whole truth before the Court. I have looked for surrounding circumstances to determine where the truth lies. 49.The subject building is an old building. Its Deed of Mutual Covenant is dated 27 May 1972. 50.On 7 December 1998, a building order was issued in respect of the subject building. The building order required the repair of, inter alia, the sewage pipe of the subject building. 51.On 16 October 2000, the 1st and 2nd Plaintiffs became the registered owners of the subject premises as joint tenants. 52.On about 4 November 2000, the 1st Plaintiff bought a split type air conditioner for the subject premises and had it installed shortly thereafter. The compressor unit of the split type air conditioner was installed outside the subject premises along the external wall of the master bedroom, below the windows of the master bedroom. It was affixed on and supported by a metal frame below. Scaffolding had to be erected for its set up. 53.Since about Mid-January 2001, sewage water came out from the communal sewage pipe above the subject premises and such sewage water fell and hit on the compressor unit of the 1st Plaintiff's split type air conditioner. It occurred almost on a daily basis although not continuously throughout the day. It happened usually early in the morning and in the evening when people went home after work. 54.I do not accept that such sewage water had come down like buckets of water being poured down as PW1 had so described it. I consider that PW1 had exaggerated the severity of the problem. However, I am prepared to find that there was continuous falling down of sewage water during certain parts of the day and the quantity of such sewage water was not insignificant. 55.The 1st Plaintiff complained to the management company Wilkinson. The situation did not improve. 56.On 24 May 2001, the 1st Plaintiff approached the office of a political party for assistance. A District Councillor referred the 1st Plaintiff's complaint to the relevant government departments for follow-up action. 57.On 28 June 2001, the Buildings Department wrote to the District Councillor stating that their staff had carried out an investigation. The finding is that there were water marks on the external wall of the subject premises, but there was no sign of any sewage pipe leakage or bursting. I accept that the Buildings Department had indeed carried out an investigation of some sort. However, I do not accept that their such investigation was thorough. I do not accept that there was no leakage or disrepair of the communal sewage pipe above the subject premises. 58.On 22 August 2001, the Food and Environmental Hygiene Department ("FEHD") wrote to the District Councillor stating that their staff had carried out an investigation. The finding is that there was no sign of seepage of sewage water or damage of the sewage pipe at the external wall of the "unit under complaint". However, it was observed that there was a problem with the connection of the funnel like device to the communal sewage pipe outside the external wall of Flat 6 on the 11th Floor of the subject building. It was suspected that this was the source of the leakage. The information was passed on to the management company of the subject building for the necessary follow-up. Again I accept that the FEHD had carried out an investigation of some sort but I am not prepared to accept that the investigation was thorough. I do not accept that there was no damage or disrepair to the communal sewage pipe above the subject premises. I accept that there was a problem with the funnel like device on the communal sewage pipe outside Flat 6 on the 11th Floor of the subject building. 59.On about 13 November 2001, the 1st and 2nd Plaintiffs paid 50% of the sum of $1,368 which was the cost for the replacement of the metal gas pipe installed at the external wall of the subject premises. The gas pipe in question served the subject premises and the neighbouring premises (Flat 7 on the 7th Floor of the subject building), so the 1st and 2nd Plaintiffs only paid 50% of the costs. It was noted in the job order issued by the gas company that the metal gas pipe required replacement because of rusting. I accept that there was such rusting. 60.At about this period, DW1 did visit the subject premises to make an inspection. On behalf of the 1st Defendant, DW1 had indicated to the 1st Plaintiff that the 1st Defendant would not be responsible for the replacement cost of the abovementioned metal gas pipe, as it was private property. I infer that the 1st Defendant was aware of the fact that it had no obligation to address problems experienced by individual flat owners when it was not lawfully obliged to address such problems. 61.On 9 November 2001, the management committee of the subject building held a meeting. The management company Wilkinson reported inter alia that there was blockage of the funnel like device affixed to the communal sewage pipe and there was also a problem of improper alignment of such. This formed the basis of the management's decision to erect stainless steel canopies outside the subject premises. The costs of the works were paid for by the management of the building. I infer that the management company Wilkinson was in a position to investigate into the cause of the problem of sewage water falling onto the split type air conditioner outside the subject premises. I infer that there was indeed a factual situation which led the management company Wilkinson to conclude that the 1st Defendant was under an obligation at law to address the problem. 62.I find that the two stainless steel canopies were erected outside the subject premises in December 2001. I do not accept the evidence of PW1 that there was little improvement to the situation afterwards. I find it probable that the two canopies had effectively addressed the problem and that there was no more sewage water falling down on the split type air conditioner afterwards that is of any material consequence. 63.On 27 September 2002, the management committee of the subject building held another meeting. The Chairman of the management committee reported inter alia that there were cracks to the sewage pipe of the subject building, and that the devices to keep the sewage pipe in proper alignment also got loosen. I infer that the Chairman was then making reference to the communal sewage pipe. I accept that that was indeed the situation. The communal sewage pipe of the subject building was then in a state of disrepair. 64.On 9 January 2003, the Buildings Department wrote to the 1st Plaintiff in response to his earlier complaint. The letter stated that the Building Department had conducted an investigation and opined that the source of the "seepage" was possibly that some pipes had fallen into disrepair. I accept that the Buildings Department had indeed carried out an investigation and as noted earlier, I accept that the communal sewage pipe was in a state of disrepair. 65.On about 4 March 2003, PW1 indicated in a meeting of the management committee of the subject building that he would not allow the management of the subject building to carry out works to the communal sewage pipe outside the external wall of the subject premises. The reason he gave was to say the least, bizarre. PW1 said that he had by then got so used to the sound of the sewage water falling onto the split type air conditioner that he could not suffer its cessation. 66.On 7 March 2003, New Gem, the management company employed by the 1st Defendant at the time, wrote to the 1st Plaintiff enclosing a complaint form for the latter to fill out. 67.On 13 March 2003, Tak Cheong issued a notice to the owners of the subject building stating inter alia that the works for the replacement of the pipes of the subject building was scheduled to be carried out starting from 19 March 2003. There is a subsequent notice amending the date of the scheduled works but nothing turns on that. 68.On about 6 April 2003, the 1st Plaintiff obtained a quotation from the contractor Hang Park for repairs to the subject premises that he considered to be necessary as a result of the falling down of sewage water from the communal sewage pipe. 69.On about 15 April 2003, the 1st and 2nd Plaintiffs lodged a complaint in writing to New Gem stating that since early 2001, "leakage" of the communal sewage pipe at the exterior wall of the subject building had caused damage to their property. 70.On about 15 April 2003, Tak Cheong wrote a letter stating that on 11 April 2003, in the course of replacing the pipes at the external wall of the subject premises, an accident happened and that caused the flushing water pipe nearby to burst. I find that the flushing water that gushed out from the burst pipe did come onto the split type air conditioner. 71.On about 16 April 2003, a staff of New Gem noted the 1st Plaintiff's complaint in an Incident Report. The 1st Plaintiff had complained of a "leakage" situation that had persisted for over two years which affected the subject premises, and which had not been satisfactorily resolved despite his repeated complaints. 72.On 18 April 2003 the staff of New Gem visited the subject premises and took photographs. It was observed that the split type air conditioner at the exterior wall of the master bedroom was covered with debris and garbage. There was serious rusting of the split type air conditioner. Rusting of the supporting frame for the split type air conditioner and the private gas pipe nearby was also observed. Photographs were taken. 73.I find that there was falling down of sewage water from the communal sewage pipe above the subject premises from about Mid-January 2001 to about May 2003. It occurred almost daily although it was not continuous throughout the day. The amount of sewage water that fell down was not insignificant. I find it probable that the problem has ceased from about May 2003, when the old communal sewage pipe of the subject building was replaced by the new one. However, as noted earlier, I also find that the falling down of sewage water no longer affected the split type air conditioner in question after the erection of the two canopies outside the subject premises in December 2001. I find that the cause of the problem of sewage water coming down from Mid-January 2001 to December 2001 was the disrepair of the communal sewage pipe and also the choking up of certain funnel like devices on the communal sewage pipe above the subject premises. I have not been able to make a finding as to the exact locations where the sewage water came out but in all the circumstances I consider that this is the appropriate inference to be drawn. 74.On about 9 July 2003, a staff of New Gem prepared an Incident Report stating inter alia that a complaint was lodged by the owners of the subject premises about the bursting of a flushing water pipe at the external wall of the subject building. The report stated that upon inspection, it was observed that no water had come inside the subject premises, but there was water dripping down from above at the window of the toilet. I find, however, that there was indeed flushing water that gushed out from the burst pipe and that the water did come onto the split type air conditioner in question. 75.As regards the 1st and 2nd Plaintiffs' allegation that the main gate on the ground floor of the subject building was inappropriately kept open for long periods of time, I do not accept the evidence of the 1st Plaintiff in this connection. Liability and Cause of Action 76.I find that the 1st Defendant is liable towards the 1st and 2nd Plaintiffs in the circumstances. Under Section 18(1)(a) of the Building Management Ordinance, Cap 344, the 1st Defendant is under an obligation at law to maintain the communal sewage pipe in a state of good and serviceable repair and clean condition. This the 1st Defendant had failed to do at the material times. I consider that the duty is owed to the 1st and 2nd Plaintiffs and they are entitled to sue the 1st Defendant for its breach of statutory duty and claim damages therefor. 77.Further, I also find the 1st Defendant liable towards the 1st and 2nd Plaintiffs on the tort of negligence. I am aware that a person is in general not vicariously liable for the tort committed by an independent contractor whose services he has engaged. However, irrespective of whether or not the 1st Defendant had exercised reasonable care in engaging the services of the management company Wilkinson, I consider that the 1st Defendant was personally under a duty to rectify the problem expeditiously when the problem was brought to its knowledge. The 1st Defendant had failed to do so and has thus failed to exercise reasonable care. It is obvious that the management company Wilkinson was not taking any effective steps to address the problem until the two stainless steel canopies were erected in December 2001, whereas the 1st Plaintiff had been making complaints since Mid-January 2001. Case on Quantum 78.In relation to the falling down of sewage water from the communal sewage pipe affecting the split type air conditioner and the subject premises, the case of the 1st and 2nd Plaintiffs on quantum may be stated as follows: (1) the compressor unit of the split type air conditioner was damaged, (2) the supporting frame for the compressor unit was damaged, (3) the aluminium windows of the toilet was damaged, (4) the aluminium windows of the master bedroom were damaged, (5) the wall of the master bedroom was damaged. 79.PW1's evidence is that because of the falling down of the sewage water from above, the windows at the master bedroom and the toilet of the subject premises were kept closed all the time. The sewage water that fell down from above hit the top of the compressor unit of the split type air conditioner and splashed onto the windows of the master bedroom and toilet. Although somewhat vague and indirect, his evidence also suggested that the sewage water that fell down from above direct hit or splashed onto the external wall of the subject premises. The sewage water then seeped into the subject premises. The wall of the master bedroom near the windows was thereby affected and the paint there was damaged. According to PW1, the wall of the toilet was tiled and was not thus damaged. 80.I accept that the 1st Plaintiff was the sole owner of the split type air conditioner and that he had paid for all the set up costs of the same. 81.The 1st and 2nd Plaintiffs relied on a quotation dated 6 April 2003 at TB151 to show the quantum of the expenses of repair required. In gist, the items consisted of : (1) the replacement of the aluminium windows of the master bedroom and toilet alone would cost $3,000, (2) as a result of the replacement of the aluminium windows, the tiles around the toilet windows and aluminium ceiling would need cosmetic repairs and that would cost $4,500, (3) the replacement of the split type air conditioner and supporting frame alone would cost $10,000, (4) the repainting of the wall inside the master bedroom would cost $3,000, and (5) the erection of scaffolding at the external wall for the replacement of the split type air conditioner would cost $3,000. Failure to Mitigate? 82.The 1st Defendant contended that the 1st and 2nd Plaintiffs had failed to mitigate their losses. I do not consider that the 1st and 2nd Plaintiffs in the discharge of their reasonable duty to mitigate their loss were obliged to engaged contractors to ascertain the exact cause of the falling down of sewage water from above and effect whatever repairs were necessary to put an end to the situation of sewage water falling down. They had made prompt complaint to the management of the subject building. At a later stage, they were able to procure the relevant Government departments to investigate the situation. They had done what was reasonable. 83.I do not consider that the 1st and 2nd Plaintiffs had failed in their duty to mitigate loss in not cleaning up the split type air conditioner during the period from Mid-January 2001 to December 2001 and even thereafter. 84.I do not consider that the 1st and 2nd Plaintiffs were obliged to remove the two canopies erected by the management and replaced them with canopies that were bigger in size. As noted earlier, I find that the two metal canopies erected by the management had effectively addressed the problem of sewage water falling down onto the split type air conditioner. I am not persuaded that some parts of the top surface area of the compressor unit of the split type air conditioner were still hit by falling sewage water after the two canopies were erected. I find that the damage caused by the falling of sewage water took place before the erection of the two canopies in December 2001, not thereafter. 85.In the circumstances, although the 1st and 2nd Plaintiffs (I infer that the 1st Plaintiff was acting as the agent of the 2nd Plaintiff at the time) had in about March 2003 quite unreasonably refused to let the management replace the communal sewage pipe above the subject premises, that act could not have aggravated the damage that had already been done before the erection of the two canopies. Impact of Illegality 86.I accept that it is probable that the erection of the supporting metal frame outside the external wall of the subject premises and the affixing of the compressor unit of the split type air conditioner thereon constituted illegal building works and what the 1st and 2nd Plaintiffs did were also in breach of the Deed of Mutual Covenant governing the subject building in that the prior consent of the management was not obtained. However, I do not consider that these circumstances would disentitle the 1st and 2nd Plaintiffs to damages which they would otherwise be entitled to. Contributory Negligence? 87.I do not consider that there was contributory negligence on the part of the 1st and 2nd Plaintiffs in setting up and maintaining the split type air conditioner on the external wall of the subject premises in the manner they did, during the period up to December 2001. Impact of other events 88.I find that flushing water did gush out from the burst flushing water pipe and come onto the split type air conditioner and the windows of the master bedroom and toilet during the two pipe bursting incidents respectively on 15 April 2003 and 9 July 2003. The two incidents of course could not have contributed to whatever damage was sustained during the period from Mid-January 2001 to December 2001. 89.The two pipe bursting incidents are relevant in that they certainly have contributed to the damage of the split type air conditioner. The 1st and 2nd Plaintiffs have adduced photographs showing the serious rusting of the split type air conditioner. See exhibit P4. The photographs were however taken after the two pipe bursting incidents. Finding on Quantum 90.I took the above into account in assessing quantum. 91.I find that the falling of sewage water from about Mid-January 2001 to about May 2003 (not just up to December 2001) had caused the aluminium windows of the master bedroom and toilet to slightly rust. I accept that there was splashing of the sewage water when it hit the split type air conditioner during the period from Mid-January 2001 to December 2001 and the splashed sewage water did come onto the windows of the master bedroom. I am not persuaded that the splashing affected the toilet windows. I am not persuaded that the damage was so serious as to warrant their replacement. The 1st Defendant is liable to pay damages of $200 to the 1st and 2nd Plaintiffs jointly for the damage to the windows of the master bedroom and the toilet. In the circumstances, there will be no damages awarded for the cosmetic repairs to the toilet tiles said to be necessary as a consequence of the replacement of the windows. 92.I find that the falling of sewage water from about Mid-January 2001 to about December 2001 did cause some rusting of the split type air conditioner and its supporting metal frame. The rusting had shortened their useful life span. The difficulty is to ascertain to what extent. Another difficulty is that I find it probable that the PW1 had exaggerated the figures of the required repair cost. I do not consider that I should place much weight on the quotation of Hang Park dated 6 April 2003 at TB151. The 1st and 2nd Plaintiffs have used the split type air conditioner for a number of years before it was dismantled and all along it was still functioning. I consider that in all the circumstances a global award of damages in the sum of $1,000 should be awarded. The award has already taken account of the scaffolding cost for its setting up. 93.As for damages for repainting the wall of the bedroom, although I accept that there were signs of water seepage around the windows of the master bedroom, I am not persuaded that it was the result of the sewage water falling down from above. There will be no damages under this head. 94.There is no credible evidence for me to find that the 1st Plaintiff had suffered any discomfort, nuisance or irritation by reason of the falling down of sewage water. His evidence that he had tried to stop the management of the subject building to replace the old communal sewage pipe, on the bizarre ground that he had got so used to the situation that he could not bear its cessation, effectively neutralized his evidence that the falling down of the sewage water had caused him any discomfort, nuisance or irritation. Orders 95.I would make the following orders in the circumstances:
Representation: The 1st Plaintiff: appearing in person The 2nd Plaintiff: appearing in person Mr. Dick Lee, instructed by Messrs. N.K. Tsang & Co., for the 1st Defendant |
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Further hearings and rulings under DCCJ 4651/2005