Cheng Chi Wing and Others v. Ho Shu Wah and Another
Read the full judgment text of DCCJ 2370/2005 on BabelCite. This District Court judgment.
1. The Plaintiffs’ claims are for losses and damages suffered by them due to the leakage of water into their premises from the floor above. The 1 st Plaintiff and the 2 nd Plaintiff are husband and wife, and are the registered owners of the property known as Flat B 703, 7 th Floor, Block B, Westlands Garden, No. 4 Westlands road, Hong Kong (“the Plaintiffs’ premises”). The 3 rd Plaintiff is their daughter. The Plaintiffs have been living in the Plaintiffs’ premises since October 2003.
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DCCJ2370/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2370 OF 2005 --------------------- BETWEEN
-------------------- Coram : H. H. Judge Chow Dates of Hearing : 12th, 13th, 16th April 2007 Last date for the written submission : 27th April 2007 Date of handing down Judgment : 27th July, 2007 ______________________ JUDGMENT ______________________ 1.The Plaintiffs’ claims are for losses and damages suffered by them due to the leakage of water into their premises from the floor above. The 1st Plaintiff and the 2nd Plaintiff are husband and wife, and are the registered owners of the property known as Flat B 703, 7th Floor, Block B, Westlands Garden, No. 4 Westlands road, Hong Kong (“the Plaintiffs’ premises”). The 3rd Plaintiff is their daughter. The Plaintiffs have been living in the Plaintiffs’ premises since October 2003. 2.The Defendants are husband and wife, and are the registered owners of the property known as Flat B 803, 8th Floor, Block B, Westlands Garden, No. 4 Westlands Road, Hong Kong (“the Defendants’ premises”). The Defendants premises are immediately above the Plaintiffs’ premises. 3.The Plaintiffs’ case is that because of water leakage from the Defendants’ premises into the Plaintiffs’ premises damages were done to various parts of the Plaintiffs’ premises and the 3rd Plaintiff suffers skin disease due to the growth of psocids resulting from the water leakage into the Plaintiffs’ premises. The Defendants deny liability and put the Plaintiffs to strict proof of their allegations. 4.In the Plaintiffs’ premises there are one master bedroom (i.e. with a master bathroom) which is occupied by the 1st and 2nd Plaintiffs, and two other bedrooms (Bedroom 2 and Bedroom 3) one of which is occupied by the Plaintiff’s son and the 3rd Plaintiff (Bedroom 2). There is a bathroom (“the Bathroom”) in between the two other bedrooms. Besides, there is a living room, dining room, a kitchen and a servant’s room. 5.In or about early December 2003, the 2nd Plaintiff noticed that water leaked and seeped from the ceiling of the Bathroom into the Bathroom and Bedroom 3. On 12 December 2003, she complained to the management office about this matter. The management office sent a staff to the Plaintiffs ’ premises and the Defendants’ premises to check the water leakage and confirmed that water leaked and seeped from the Defendants’ premises into the Plaintiffs’ premises. On the same day, the management office also sent a notice to the Defendants, informing them the water leakage and seepage from their premises into the plaintiffs’ premises and advised them to fix it. But water leakage and seepage still continued. On 29 January 2004, she lodged another complaint to the management office. The management office sent a staff to the Plaintiffs premises for inspection and upon confirmation of the matter complained of, they sent another notice to the Defendants reminding them of the problem and advised them to fix it. 6.In or about April 2004, unpleasant odour developed inside both the Bathroom and Bedroom 3. On 13 April 2004, she complained to the management office again. The management office again wrote to the Defendant informing them of the problem and advised them to fix it. The water leakage continued, on 19 April 2004, she rang up the Food and Environmental Hygiene Department (“FEHD”) to lodge a complaint about the water leakage and seepage. 7.On 20 April 2004, she went to the Defendants’ premises in order to discuss the matters with the Defendants and to invite them to come to the Plaintiffs’ premises for inspection. Upon her invitation, the Defendants did go to the Plaintiffs’ premises for inspection. However, after inspection, they said that there was no evidence to show water leakage from their premises. 8.FEHD sent an inspector to the Plaintiffs’ premises respectively on 23 April 2004 for inspection and examination of the Bathroom and Bedroom 3 and on 6 May 2004 for the kitchen, and it was confirmed that there were water leakage and seepage in the Bathroom, Bedroom 3 and the kitchen. 9.On or about 1 May 2004, yellowish water marks appeared at the ceiling of the kitchen. On 4 May 2004, she complained to the management office again. The management office once again notified the Defendants of the water leakage and seepage from the Defendants’ premises into the kitchen of the Plaintiffs’ premises and advised them to fix it. 10.Because of the water leakage and seepage, the decoration works in the Bathroom and in the kitchen were damaged. 11.Since about April 2004, small insects appeared on the ceiling and the walls of Bedroom 3. Shortly after the appearance of these small insects, the 3rd Plaintiff started to suffer from skin disease. Rash developed on her skin which was itchy. As a result, she could not sleep well at night. The 2nd Plaintiff brought her to seek medical treatment. However, medical treatment did not help her very much as the leakage and seepage of water continued and the small insects continued to spread. The 3rd Plaintiff sought medical treatment due to skin disease on various occasions, from 10 June, 2004 to 7 October, 2005. 12.On 4 August 2004 the 2nd Plaintiff asked the management office to arrange a meeting with the Defendants so that she could talk directly with them for the purpose of solving the problem between them. But there was no positive response from the Defendants. 13.In early September 2004, water entered into the 3rd Plaintiff’s bedroom (Bedroom 2). On 1 September 2004, the Plaintiffs instructed Messrs. Peter Mo & Co., Solicitors, to issue a letter before action to the Defendants, hoping that the matter could be resolved without the assistance of the court. 14.On 7 September 2004, the 2nd Plaintiff collected some of the small insects inside Bedroom 3 and took them to FEHD for identification. FEHD’s report dated 9 September 2004 reported that the small insects were psocids and they mainly occurred at humid environment. 15.On 20 May 2005, they instituted the present proceedings against the Defendants. Since about mid August 2005, no significant leakage and seepage of water has appeared in the bathroom and bedrooms, but some clear water marks and/or stain have been left on them. Psocids still exist on the ceiling and the wall of Bedroom 3 but their numbers have greatly reduced. 16.When cross-examined, the 1st Defendant agreed that during the inspection of the Plaintiffs’ premises in April 2004, he noticed water marks at the ceiling of the entrance of the guest room (Bedroom 3) and at the ceiling of the Bathroom. He also saw small insects at the ceiling of the entrance of the guest bedroom. Various damages appear at the Plaintiffs’ premises, namely, damages at the guest bedroom (Bedroom 3) (Photos 7 to 13 of the Photo Bundle), damages at the Bathroom (Photos 1 to 6 of the Photo Bundle), and damages at the kitchen (Photos 14 to 20 of the Photo Bundle). 17.On 21 Feb., 2005, Mr. Kwan Cheung Hing, a supervisor and survey technician of Castco Testing Centre conducted an infra-red thermographic scanning test to the ceiling of the Bathroom and part of the ceiling of Bedroom 3 immediate adjacent to the Bathroom. The infra-red test identified suspected moisture entrapping areas at the structural slab of the guest bathroom of the Defendants’ premises (i.e. the bottom of the bathroom of the Defendants’ premises). 18.The Plaintiffs’ expert report reveals that in the Defendant’s premises the bath’s structural slab is lower than the surrounding slabs of the bedrooms and living room by 6 inches. After the installation of the drainage pipes the 6 inches difference between the structural slabs would be filled up with concrete. The Plaintiffs’ expert Mr. Chu Tak Sum (“Mr. Chu”) opines that the water marks found on and the water drops dripping down from the ceiling of the closet of the Plaintiffs’ premises were caused by water seepage from the bath of the Defendants’ premises. 19.Mr. Chu said that according to the photos produced by the Defendant at pages 65 to 68 of the Trial Bundle he could tell that alterations to the guest bathroom of the Defendants’ premises had been done. The bath-tub had been replaced by a standing tub. Cast iron pipes had been replaced by PVC pipes. Soil and sand had been used in place of in-fill concrete. This is undesirable, because soil and sand could not hold water. Besides, with water, the soil and sand would sink. Thus, the floor would drop and aggravate the gap between the floor and the walls. 20.According to him, it is inevitable that there would be gaps between old concrete and new concrete. It is inevitable that there would be tiny gaps between the floor and the walls, and between the standing tub and the wall, between the floor and the standing tub. Water could flow through these gaps and cracks, if any, on the floor into the bottom of the bathroom. Then the water could flow to the down pipe area or other weak points which resulted in the water leakage in the Plaintiffs’ premises. From the photos provided by the Defendants at pages 65 to 68 of the Trial Bundle, Mr. Chu could tell that the soil and sand were wet. Indeed, the 1st Defendant said that the soil and sand drying up, when the floor surface was dug up. This means that prior to the digging up of the guest bathroom of the Defendants’ premises on 6 September 2005, there was water in the soil and sand under the bathroom of the Defendants’ premises. Mr. Chan Wah Yung who was called by the Defendants to testify confirmed that the soil and sand shown in the photos at pages 65 to 68 of the Trial Bundle was wet when the bathroom at the Defendants’ premises was dug up, and that this water did not come from the broken pipe as there was no water in the pipe when it was broken. 21.Mr Chu also testified that it is very unlikely that the leakage problem was caused by water seeping through the external wall. He said that concrete was imperious to water and if there was problem with the concrete of the external wall leading to water leakage, it would have happened years ago. He visited the Plaintiffs’ premises on 7 April 2005, and it was noticed that water was dripping down from the ceiling of the closet. But there was no rain from 3 to 7 April 2005, according to the Record of the Hong Kong Observatory. If indeed the source of the water was through external wall, there should be no water dripping on 7 April 2005 when Mr. Chu inspected the Plaintiffs’ premises. This shows that the external wall is not the source of water leakage. 22.The Defendants’ expert report at pages 62 to 68 states that there was no water leakage from various pipes or in the joints of various pipes laid under the guest bathroom of the Defendants’ premises. There was also no water leakage in the joint where the pipe under the guest bathroom of the Defendants’ premises joined the public waste pipe. This is not inconsistent with Mr. Chu’s opinion that water seeped from the bathroom of the Defendants’ premises into the Plaintiffs’ premises. Mr. Chu’s opinion was that water leaked into the bottom of the guest bathroom of the Defendants’ premises through gaps or cracks in the guest bathroom, and then into the Plaintiffs’ premises. His opinion is not that there was water leakage from pipes or joints of pipes. Nuisance to the Plaintiffs 23.The 2nd Plaintiff said that the air-conditioner was kept running to keep the Plaintiffs’ premises dry. Plastic bags had to be sued to collect water dripping from the ceiling of the guest bedroom (Bedroom 3). This lasted for about one and a half years. The small insects spread to the whole house and they were removed daily by plastic tapes. When moisture appeared, dry cloth was used to wipe the moisture. When mould appeared, bleach was used to remove the mould. The Plaintiffs did not go on vacation for fear of water leakage. The 3rd Plaintiff suffered from skin diseases due to the presence of the small insects. 24.In paragraph 6.7 of their Submission, the Defendants suggested that the water leakage might be due to the integrity between the slab and the drainage pipes which had been damaged during their renovation work. This allegation is not supported by evidence. 25.I attach no weight to the letter issued by the Food and Environmental Hygiene Department at page 163 of the Trial Bundle and the letter issued by the Water Supplies Department at page 159 of the Trial Bundle as nobody from these two departments testified in Court. The former does not disclose what the tests were about, whilst the latter shows that the pipes concerned do not create wastage of water supply. 26.I accept the evidence of the 2nd Plaintiff and her witnesses. I find that the source of the water leakage must be the guest bathroom of the Defendants’ premises. I accept Mr. Chu’s evidence that water seeped through gaps between the standing tub and the floor, through gaps between the floor and the wall, and through cracks (if any) on the floor, to the bottom of the guest bathroom. (This explains why the sand and the soil under the bathroom was wet, prior to the digging up of the guest bathroom on 6 Sept., 2005) The water travelled through weak points and then leaked into the Plaintiffs’ premises. 27.The guest bathroom of the Defendants’ premises was and is under the exclusive control of the Defendants. They were negligent in that they did not exercise reasonable care to maintain the floor surface of the bathroom of their premises in reasonably good condition, and as a result water leaked into the portion of the floor immediately below the guest bathroom, and from there the water leaked into the Plaintiff’s premises. Breach of the deed of mutual covenant 28.Clause 4 of the deed of mutual covenant of Westlands Gardens provides that the owners of the Westlands Gardens shall be bound by and shall observe and perform the covenants contained in the second schedule of the deed of mutual covenant, and paragraph 3 of the second schedule reads:-
29.According to the 1st Defendant, no real repair work at the guest bathroom of the Defendants’ premises has been done. The dug up surface of the guest bathroom was recovered up only. There was still sand and soil underneath the surface of the floor. So the water leakage problem will occur again if the guest bathroom is used for bathing purpose. 30.The Plaintiffs submit that no repair work has been done on the Plaintiffs’ premises because they were not sure whether the Defendants had rectified the problem of water leakage, and it is not reasonable for them to have effected repair under such circumstances. So they submit that judgment should be entered against the Defendants with damages to be assessed. If that is the case, the Plaintiffs should have applied for separate trials on the issues of liability and damages. Instead they adduced some evidence of damages during the trial. Alternatively, they could have adduced estimated costs of repair to the damaged portions of their premises. But both were not done. 31.In the absence of evidence to show how much it will cost to effect repair to the damaged portions of the Plaintiffs’ premises, I am not able to make any award in this respect. I therefore decline to make any award in this regard. The Plaintiffs incurred $1,815 for medical expenses for the 3rd Plaintiff. For the inconvenience and nuisance suffered by the Plaintiffs I would make an award of $45,000. Therefore the total award is $46,815. ($1,815 + $45,000) 32.I make the following orders:-
Costs 33.I make an order nisi, to be made absolute in 14 days’ time, that the Defendants do pay costs of this case to the Plaintiffs on an indemnity basis, to be taxed, if not agreed, with certificate for Counsel.
The Plaintiffs : represented by Mr. Chong Tin Chun, instructed by M/S. Peter Mo & Co., Solicitors. The Defendants : present, unrepresented. |
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