Wong Hon Hung and Another v. Jolly Birds Ltd
Read the full judgment text of DCCJ 5341/2006 on BabelCite. This District Court judgment.
1. The Plaintiffs are the owners of Flat A on 9/F in Tower 14 of Parc Oasis (“Flat 9A”). EastPoint Property Management Limited (“the Property Manager”) is the manager of the building.
Cited by 23 cases · Cites 6 cases
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DCCJ 5341/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5341 OF 2006 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge J. Ko in Court Dates of Hearing: 17th to 19th December 2007, 6th, 11th and 14th February 2008, 7th and 10th March 2008, 15th April 2008, 16th and 20th May 2008 Date of Handing down of Judgment: 24th June 2008
----------------- JUDGMENT ----------------- 1.The Plaintiffs are the owners of Flat A on 9/F in Tower 14 of Parc Oasis (“Flat 9A”). EastPoint Property Management Limited (“the Property Manager”) is the manager of the building. 2.The Defendant was the owner of Duplex A on 10/F and 11/F of the same building between January 2005 and mid-2007. The Defendant purchased the premises as residence for Yung Choi-Fong and her 3 children. Ms. Yung engaged Chung Kam Wah Hely to design and supervise the renovation of the premises. 3.It is common ground that extensive renovation had been carried out at the Defendant’s premises before Ms. Yung’s family moved in. In particular, the following renovation was done to 10/F of the Defendant’s premises (“Flat 10A”):
4.It is also common ground that there is a sand trap between the concrete slab forming the floor of Flat 10A and the concrete slab forming the ceiling of Flat 9A (“the Sand Trap”). 5.The revocation of the Defendant’s premises was completed in June 2005, and Ms. Yung’s family moved in shortly thereafter. Water seepage at Flat 9A 6.It is not disputed that the ceiling lamp inside the master bedroom of Flat 9A began to flicker in mid-July 2005. On 21st July 2005, the Plaintiffs inspected the lamp and discovered water being collected inside the lamp cover. 7.The Plaintiffs suspected water seepage and made complaints to the Property Manager and the Joint Office of the Buildings Department and the Food and Environmental Hygiene Department (“Joint Office”). Despite inspections and investigation done by the Property Manager and the Joint Office, water seepage continued and worsened. 8.Between mid-July and August 2005, the Plaintiffs used aluminum trays to collect water dripping from the ceiling of the master bedroom of their flat. Seepage then intensified and the Plaintiffs used inverted umbrellas and water buckets to collect the dripping water. The situation further deteriorated and the Plaintiffs had to affix large plastic sheets underneath the entire ceiling of the master bedroom to channel the dripping water into water buckets. They, who are husband and wife, were unable to use their master bedroom. 9.The Plaintiffs’ expert inspected Flat 9A on 16th August 2006. He observed:
10.The Defendant’s expert attended Flat 9A on 11th February 2007. He described the situation as follows:
11.At the trial, the Defendant does not dispute the fact of water seepage at Flat 9A. Rather, it disputeswhether the source of such water seepage originated from Flat 10A. 12.The main issues in this case are therefore:
What was the cause of the water seepage at Flat 9A? 13.It is not uncommon for water seepage to occur in multi-storey buildings in Hong Kong. There can be many different causes of water seepage. There is no presumption that water must necessarily leak from the flat above to the flat below. 14.In the present case, it is for the Plaintiffs to prove that water leaked from the Defendant’s flat (i.e. Flat 10A) in order to succeed in their claim against the Defendant. In particular, there is no burden on the Defendant to prove that water leaked from a source other than its flat. 15.Both parties have engaged expert for the purpose of this action. However, they offer very different theories as to the source of water seepage at the master bedroom of Flat 9A. 16.According to the Plaintiffs’ expert Wong Man- Hong:
17.On the other hand, the Defendant’s expert Ip Man-Ching holds the view that:
18.Both experts agree that the seepage problem was not caused by leakage of the supply pipes or the drainage pipes atFlat 10A. They also agree that water seeped from the ceiling of the master bedroom in Flat 9A and to the ceiling of the other bedroom causing the damage there. (a) The Defendant’s theory 19.I shall begin by discussing the theory offered by Defendant’s expert. (a1) Challenge to the Defendant’s expert’s qualification 20.In his closing submission, the Plaintiffs’ counsel challenges the expert qualification of the Defendant’s expert. He submits that:
21.I disagree. 22.The starting point is s.58(1) of the Evidence Ordinance, which provides that:
23.An expert may acquire sufficient knowledge of the subject matter by study or experience so as to render his opinion of value in resolving the issue before the court: see para.33-46 in Phipson on Evidence, 16th Edition (2005). 24.The Defendant’s expert has fully set out his qualifications and background in his first report. 25.He obtained his bachelor degree in building surveying from the Thames Polytechnic in the UK. He then obtained a master degree in building rehabilitation studies from Greenwich University in the UK. He received professional training in the UK whilst he was studying for his master degree. 26.He has been a Chartered Building Surveyor since 1992. He is also an Authorized Person under the Buildings Ordinance, a Registered Surveyor (Building Surveying Division) under the Surveyors Registration Ordinance, a Member of the Royal Institution of Chartered Surveyors (Building Surveying Division), a Member of the Hong Kong Institute of Surveyors (Property and Facility Management Division), a Member of the Association for Project Manager and a Fellow Member of the Hong Kong Institute of Facility Management. 27.Since 2001, he has been acting as an assessor for the Hong Kong Institute of Surveyors to examine candidates to see if they can meet the requisite level of knowledge and expertise to become a qualified building surveyor. Since 2005, he has been the Registered Assessor (Senior Professional Route) for the Royal Institution of Chartered Surveyors to examine candidates on their requisite level of knowledge and expertise to qualify as a chartered surveyor. 28.Prior to his present employment, he has accumulated the following working experience:
29.The Defendant’s expert has been subjected to extensive cross-examination on his experience in investigating water leakage in residential buildings. The Plaintiffs’ counsel has summarized the “fruits” of his examination as follows:
30.Insofar as the Defendant’s expert’s academic and professional qualification is concerned, this may be contrasted with the professional background of the expert put forward by the Plaintiffs. The Plaintiffs’ expert obtained his bachelor degree in architectural studies from the University of Hong Kong and a bachelor degree in building surveying from the University of Greenwich. He is a professional member and a Registered Professional Surveyor of the Building Surveying Division of Hong Kong Institute of Surveyors, an Authorized Person under the Building Ordinance and a licensed estate agent. It can thus be seen that the two experts share very similar background. 31.There is nothing wrong in the Defendant’s expert acquiring part of his professional knowledge through attending seminars. The Plaintiffs’ expert also said that part of his working knowledge on infrared thermography had been acquired through attending seminars, although he also had some personal experience in such testing. 32.Having regard to the academic and professional qualification and working experience of the Defendant’s expert, I have no hesitation in accepting him as qualified in evaluating the source of water leakage in a multi-storey building. 33.The fact that the Defendant’s expert may not have as much actual experience as the Plaintiffs’ expert in investigating water leakage in residential buildings and that this happens to be the first time he testified in court go to weight. They provide no basis to challenge the admissibility of his opinion. 34.In my view, the Plaintiffs’ counsel has gone too far in mounting the challenge. (a2) Discussion 35.The Defendant’s theory is based on the basic assumptions that:
But where is the supporting evidence? 36.The Defendant’s expert says he conducted visual inspection of the external wall of Flat 10A on 20th January 2007 and found cracks there. He points to one suspected crack in the photograph taken by him [Exhibit D7]. The Defendant’s expert did not use any equipment to aid his observation. Unlike the Plaintiffs’ expert he did not use binoculars. This cast doubt on the accuracy of his observation. 37.Although he says he saw cracks on the external walls, he is only able to identify one “suspected crack” from the photographs taken by him. It is also interesting to note that he has emphasized in his evidence that he is not equating the discovery of such “suspected cracks” on the external wall with locating the source of water seepage of Flat 9A. He puts his opinion no higher than him not being convinced that one can eliminate seepage through the external wall. 38.Despite the discovery of “suspected cracks” and his reservation, no further test was conducted by the Defendant’s expert to substantiate his theory. Although the Defendant does not bear any burden of prove, the fact remains that there is no evidence of any entry point on the external wall through which water could have entered the building. I also accept the opinion of the Plaintiffs’ expert that if there had been such water ingress point on the external wall for so long (at least since mid-July 2005) and causing seepage of such a severity, the steel rods inside the external wall would have rotted and produced observable bulges and signs of oxidation. None was observed by the parties’ experts. 39.There is also no evidence to confirm that water did travel along the concrete wall of the Defendant’s premises to the ceiling of Flat 9A. There was no water seepage before Ms. Yung’s family moved in. 40.The Defendant’s expert tries to find support for his theoryby observing that the period in which there was no seepage coincides with the period when the external wall was hacked open by the Property Manager for investigation. He attempts to explain the subsequentresumption of water seepage by alleging that the reinstatement work done by the Property Manager was inappropriate to permanently remedy the problem. But again, where is the supporting evidence? The Defendant’s expert did not conduct any test on the newly reinstated external wall to see if there was any defect. 41.In my view, the fact that the period in which there was no seepage coincided with the period when the external wall was hacked open can be given a more neutral explanation. There is a waterproof layer in the external wall. By hacking off a section of the external wall for investigation, a means was opened up through which water at the ceiling of the Plaintiffs’ premises could have evaporated into the surrounding. After reinstatement, that venue is closed off and water seepage problem resumed in April 2006 after sufficient water had accumulated. 42.No doubt with a view to strengthen the Defendant’s theory, the defence counsel submits in her closing submission that the pattern of water leakage as recorded by the Plaintiffs is consistent with the pattern of rainfall for the same period. In particular, she says that:
43.In my view, the correlation between rainfall and water leakage is tenuous. In any event, the defence counsel’s submission is not supported by the Defendant’s own expert. The Defendant’s expert analyzed the weather information obtained from the Hong Kong Observatory website and the water leakage record kept by the Plaintiffs and concluded in paragraph 9.1.3(I)(II)(b) of his report that:
44.All in all, the Defendant’s theory remains just a possibility without any supporting evidence. 45.There is in fact evidence in this case which confirm the integrity of the outer wall. 46.The Plaintiffs’ expert relied on the thermographic survey conducted by DNL Optoelec Systems Limited (“DNL”) on the external wall of Flat 10Aon 16th August 2006to confirm that it was in sound condition. He further inspected the external wall from the rooftop of the neighbouring building with the assistance of a pair of binoculars and found no observable defect. 47.The Defendant’s counsel points to a purple colour patch on the external wall of 11/F in the infrared photograph at [Exhibit D1] and suggests that that there were cracks on the external wall. I disagree. First, DNL’s comment on this infrared photograph was that no thermal anomaly was found. Secondly, the Plaintiffs’ expert says that a crack on the wall will usually produce a temperature difference of 0.2-0.3 degree Celcius. Based on the scale annexed to the infrared photograph at [Exhibit D1], he observes that the temperature difference between the part of the external wall marked by the purple patch and other parts of the wall was about 2-3 degrees Celsius. He says that such a huge temperature difference is more likely due to the use of air-conditioning on 11/F. 48.The Defendant’s counsel then challenges the fact that the Plaintiffs’ expert had inspected the external wall of Flat 10A because the report stated:
49.I accept the explanation of the Plaintiffs’ expert that that was merely a typographic error. Given the fact that water seepage occurred at the ceiling of Flat 9A, it would have been pointless to investigate the condition of the external wall of Flat 9A which is below the ceiling level. 50.The Defendant’s counsel also questions whether the Plaintiff’s expert had inspected the outer wall of Flat 10A with a pair of binoculars because the report does not contain such a reference. 51.It is true that there is no such reference in the report but the Plaintiffs’ expert is able to point to a photograph taken by him of the external wall of Flat 10A [Bundle A98] to confirm that he had been to the neighbouring rooftop to inspect the external wall. I accept his explanation that this is merely an omission. 52.The Property Manager had also hacked off part of the external wall outside the 10A Shower Room to examine the waterproof layer there and confirmed there was no defect. (b) The Plaintiffs’ theory 53.I shall now turn to examine the Plaintiff’s theory. (b1) Timing of waterseepage 54.The Plaintiffs say they did not have water seepage problem before. They first noticed signs of water seepage when the ceiling light in their master bedroom began to flicker in mid-July 2005. This coincided with the completion of renovation of the Defendant’s premises in June 2005 and the moving in of Ms. Yung’s family on 13th June 2005. (b2) Location of water seepage 55.Extensive renovation had been done to Flat 10A with the original toilet and kitchen and the partition walls demolished. The newly constructed 10A Shower Room is located directly above the master bedroom of Flat 9A where water seepage was most severe. 56.Mr. Chung had applied the Waterproof Membrance to the flooring of the 10A Shower Room to prevent shower water from escaping to Flat 9A. However, when the flooring of the 10/F bathroom was broken open for inspection on 11th and 30th August 2005 by the Defendant in the presence of the Property Manager, it was discovered that the sand in the Sand Trap under the Waterproof Membrance and above the concrete slab forming the ceiling of the master bedroom of Flat 9A was wet. (b3) Water sample collected from Flat 9A 57.The Plaintiffs’ expert collected the water dripped from the ceiling for test. 58.The water sample was tested by MateriaLab Division of Fugro Technical Services Limited (“MateriaLab”) on 22nd August 2006. The result revealed high concentration of anionic surfactant. According to MateriaLab, the water sample was:
59.The test result is consistent with the observation of the Property Manager on 28th July 2005. In a written report by the Property Manager, it was noted that:
60.The Defendant seeks to challenge MateriaLab’s result. The defence counsel submits in her closing submission that:
61.MateriaLab’s test result and comment have been set out in their written reports dated 25th August 2006 and 18th May 2007. These reports have been annexed to the Plaintiff’s expert’s reports. 62.In my view, the Plaintiff’s expert is entitled to rely on MateriaLab’s reports which are admissible as hearsay evidence. 63.Section 47(1) of the Evidence Ordinance provides that evidence in civil proceedings shall not be excluded on the ground that it is hearsay unless a party against whom the evidence is to be adduced objects to the admission of the evidence and the court is satisfied that the exclusion of such evidence is not prejudicial to the interests of justice having regard to the circumstances of the case. Section 49 then sets out the considerations relevant to weighing of hearsay evidence. It has been held that s.49 does have an indirect bearing on the assessment as to whether the exclusion of a piece of hearsay evidence would be prejudicial to the interests of justice: per Lam J in Cheung Wei Man Vivien v. Centaline Property Agency Ltd., HCA 286/2000, para.12. 64.Although it would not have been unreasonable or impracticable for the Plaintiffs to call the maker of MateriaLab’s reports to testify, the Plaintiffsare entitled to rely on the reports as hearsay evidence. The reports are sufficiently contemporaneous with the occurrence of water leakage and the collection of the water sample. It is also apparent from the letterhead of MateriaLab that the laboratory has been accredited by the Hong Kong Accreditation Service under the Hong Kong Laboratory Accreditation Scheme. There is nothing to suggest that the laboratory is connected to the Plaintiffs or the Plaintiffs’ expert. The Defendant is not suggesting that any person involved in the testing has a motive to conceal or misrepresent matters. There is also nothing to suggest any attempt to prevent proper evaluation of its weight. 65.In all the circumstances, I am satisfied that exclusion of the test result from MateriaLab will be prejudicial to the interest of justice. The result is consistent with the observation of the Property Manager. Whilst the Defendant bears no burden of proving the source of water leakage, it could have collected and tested its own sample if it wanted to challenge the presence of anionic surfactant in the water sample tested. It could have called its own expert to challenge MateriaLab’s comment that the water sample was probably bathing water by reason of the presence of anionic surfactant. In my view, exclusion of such hearsay evidence from MateriaLab will prevent proper evaluation of the source of leakage in this case. 66.The Defendant’s expert attempts to explain the presence of anionic surfactant by alleging that the sand inside the Sand Trap might have been contaminated. He says he has seen dirty sand piling up near hand washing facilities on the few occasions when he walked through the construction sites of the new airport. I agree with the Plaintiff’s counsel that the Defendant’s expert is over-generalizing his very limited experience. 67.In any event, it had been seeping for more than a year before the water sample was collected on 17th August 2006. Any contamination in the original sand would have been washed away already. Furthermore, the Defendant had opened up the floor of the 10A Shower Room for inspection and then refilled it with new dry sand. It is unlikely that the Defendant would have refilled the Sand Trap with contaminated sand. 68.The Defendant’s counsel also challenges the Plaintiffs’ case on the collection of water sample. According to the Plaintiffs’ expert, he and his assistants attended Flat 9A on 16th August to set up the equipment for collection of water sample. The laboratory had told him to collect 800 ml water sample for the test. He therefore left the equipment overnight at Flat 9A and reminded the Plaintiffs not to disturb the equipment or intervene with the process. On the next day, he returned to the flat and collected about 1 liter of water sample for testing. 69.It is true that there is a reference of “送水辦到黃文康辦事處” marked against 17th August 2006 in the record kept by the Plaintiffs. However, the 1st named Plaintiffs who testified at the trial was not cross-examined on this. In my view, it is unfair for the Defendant to mount such a challenge in the closing submission without offering the 1st named Plaintiffs an opportunity to explain. In any event, I am satisfied by the evidence of the Plaintiffs’ expert that he had collected the sample in the manner he described. (b4) The Waterproof Membrane 70.According to Mr. Chung, he had used waterproof material with the brand name “Ronocrete” in other renovation projects before. However, he cannot be sure about the spelling of the name. He says such material is commonly used in Hong Kong. He recommended the sub-contractors for the renovation to use that material to build the waterproof membrane of the 10A Shower Room. 71.After the sub-contractors had removed the original tiles and cleared the floor of the 10A Shower Room of debris, a layer of primer probably from the brand name “牛頭牌” was applied to the concrete floor. The sub-contractors then mixed powder-form “Ronocrete” waterproof material with sand and applied the mixture to the floor. A layer of 15 mm to 30 mm of the mixture was built so as to create a slope for water to run towards the side of the shower room with a floor drain. The mixture was allowed to dry naturally and pond test was performed on the third day to test the waterproof capability of the newly built waterproof membrane. 72.Both experts have been unable to find any waterproof material with the brand name “Ronocrete”. The Plaintiffs’ expert suggests that Mr. Chung had used Monoset RX manufactured by “Ronacrete”. The Defendant’s expert suggests that Mr. Chung might have used Ronafix also manufactured by “Ronacrete”. 73.Since Mr. Chung was unsure about the spelling of the name and both experts come up with the same alternative, I accept that Mr. Chung had probably used waterproof material manufactured by “Ronacrete”. 74.I do not accept the Defendant’s expert’s suggestion that Mr. Chung might have used “Ronafix”. It is clear from the information supplied by the manufacturer that “Ronafix” is water-based. Mr. Chung said he had used a powder-form material. The Plaintiffs’ suggestion “Monoset RX” is a powder-form waterproof mortar. 75.The Plaintiffs’ expert says the Waterproof Membrane is ineffective because it is substandard in the following respects:
76.According to the product data sheet of “Monoset RX” supplied by the manufacturer:
77.According to Mr. Chung, the sub-contractors used “牛頭牌” primer rather than Monoset Primer and they did not dampen the concrete floor before applying the mixture. However, it is not clear from the evidence what the effect of not using Monoset Primer and not damping the substrate would be and, in particular, how would the waterproofing capability of the Waterproof Membrane be affected. 78.The Plaintiffs’ expert says it is usual in the trade to cover the newly applied waterproof membrane with a plastic sheet to prevent premature curing. However, it does not appear that the Plaintiffs’ expert has experience in using Monoset RX before. Such practice is also not mentioned in the data sheet. 79.There is a written confirmation from the General Manager of Ronacrete (Far East) Limited, the manufacturer of Monoset RX, that they would recommend an application thickness of 25 mm. The Defendant has not adduced any evidence to contradict such a requirement. Mr. Chung says the thickness of the Waterproof Membrane varies between 15 mm and 30mm in order to form a slope for water to flow naturally under the force of gravity towards the floor drain. Assuming that the thickness decreases uniformly across the shower room, about 2/3 of the length of the room would be covered by a waterproof membrane which is less than 25 mm thick. 80.The Defendant relies on the dye water test conducted by the Joint Office on 16th June 2006 to refute the suggestion that the Waterproof Membrane was defective. The defence counsel submits in her closing submission that:
81.Both Mr. Chung and Ms. Yung were present during the test. They only say that the Joint Office conducted a dye test on all the drains in Flat 10A and a flood test in the balcony and 10A Shower Room but the result was negative. It is not clear from their testimony how exactly the Joint Office tested the Waterproof Membrane. 82.There is also a letter dated 7th February 2007 from the Joint Office to the Defendant’s solicitors stating that:
Again, no particulars of any test done were provided. 83.It appears that Mr. Chung’s and Ms. Yung’s account of the test result of 16th June 2006 is not consistent with the record kept by the Property Manager:
84.A copy of the report containing the above record was sent by the Property Manager to the Defendant’s Solicitors under the cover of a letter dated 8th January 2007. There is no evidence that the Defendant has complained to the Property Manager that the above record is inaccurate. In the circumstances, I am not prepared to accept Mr. Chung’s and Ms. Yung’s account of the test result and the unparticularized statement from the Joint Office. Intensified dripping as observed by the Property Manager was an indication that the Waterproof Membrane was breached. 85.Regarding the Waterproof Membrane, it is also Mr. Chung’s testimony that he had conducted a pond test in the 10A Shower Room to confirm its waterproof capability before the Defendant’s premises was handed to Ms. Yung in June 2005. According to him, he blocked the floor drain of the 10A Shower Room and flooded the room with water to about 3-4 inches high. He then vertically placed a brick at the entrance of the shower room and pencil-marked the water level on the brick. He allowed the 10A Shower Room to be flooded overnight. He came back the next day and observed from the brick that the water level had not receded. 86.I agree with the Plaintiff’s counsel that neither the pond test conducted by Mr. Chung nor the one conducted by the Joint Office would be helpful in determining the waterproof capability of the Waterproof Membrane. This is because the 10A Shower Room has been enlarged to about 3.5 m x 1.5 m. The leakage of 1 liter of water from the 10A Shower Room to the floor below will produce an insignificant drop of about 0.5 mm to 1 mm in water level. This is hardly observable by the naked eyes, not even with the help of a marked brick! This is not disputed by the Defendant’s expert. 87.So, I do not accept that the test done by the Joint Office on 16th June 2006 (and the pond test done by Mr. Chung) excludes the possibility of the Waterproof Membrane being ineffective. 88.I have also noted Mr. Chung’s testimony that he had been told by the sales person who recommended the floor tiles used in 10A Shower Room and the material used to fill the gap between the tiles that they supposedly had waterproof capabilities. However, there is really no evidence to confirm the waterproof capability of these tiles and filling material. I am not prepared to accept the sales person’s words on their face value without any testing. 89.Given the fact that the sand in the Sand Trap underneath the Waterproof Membrane was found to be wet, I find it likely that the waterproofing capability of the Waterproof Membrane has been compromised to enable shower water in the 10A Shower Room to seep through to Flat 9A. (b5) The New Pipe 90.The Plaintiffs’ expert also expressed the view that the New Pipe was substandard and this was also one of the sources of the water seepage. 91.The Plaintiffs’ expert did not mention this opinion in his expert reports filed before the trial. The existence and relevance of the New Pipe was only revealed at the trial during Mr. Chung’s testimony. The Plaintiffs’ expert as well as the Defendant’s expert took that into account and filed further reports to express their opinion concerning the New Pipe. 92.The defence counsel fairly confirms in her oral closing submission that the Defendant is not taking any pleading point. I have no doubt that the Plaintiffs would have applied for amendment to specifically plead the New Pipe as one of the sources of water seepage had the Defendant took any issue and that I would have allowed such amendment. This new evidence only surfaced at the trial and both parties (including their experts) had sufficient opportunity to deal with it in evidence and submission. It would have been unfair to the Plaintiffs to deny them the right to rely on this new evidence purely on technicality. 93.Mr. Chung says that he installed the New Pipe to drain the waste water from the washing machinein the balcony. The New Pipe originates from the washing machine, runs alongside the outer wall, and enters Flat 10A through the outer wall to join the drainage from the wash-hand basin inside 10A Shower Room. The New Pipe then runs underground across the length of the room to join the main drainage at the other end for discharge. 94.Mr. Chung dug a trench of about 2 inches deep in the concrete floor slab forming the ceiling of Flat 9Ato enable the New Pipe to run underneath across the length of the shower room. Mr. Chung explains that he only dug 2 inches deep as he was unsure about the exact thickness of the concrete slab. 95.The New Pipe is 50 mm in diameter. Placing it in a 2-inch trench would mean that the New Pipe would run almost horizontally across the 10A Shower Room. Mr. Chung agrees under cross-examination that it is possible that there would not be a slope (let alone a sufficient slope) for water to naturally fall towards the main drain. The Plaintiffs’ expert explains that the self-cleansing mechanism of a drainpipe cannot take effect without a minimum fall. 96.In my view, the fact that the New Pipe was horizontally placed is particularly relevant to this case. It is Ms. Yung’s evidence that she is very concerned about the cleanliness of her family. Everyday, she would wash her children’s school uniform, their casual clothing, as well as their towels. She would use the washing machine about 3 times each day to separately wash white garments, dark-coloured garments, colourfast garments, and towels. Such extensive use of the washing machine each day means that much fabric debris and hair would drain through the New Pipe. If the design of the pipe does not create a natural fall to enable the waste water from the washing machine to carry the debris away, the waste would tend to accumulate inside the pipe and clog up the pipe. Clogging up of the pipe would have further reduced the efficiency of the pipe in draining waste water from the washing machine. 97.The Defendant relies on the test done by the Joint Office on 12th August 2005 at Flat 10A to refute the suggestion that the New Pipe was a source of water leakage. In her closing submission, the defence counsel submits that:
98.The Defendant is relying on the following record in a written report dated 26th August 2005 from the Property Manager to the Defendant:
99.It is common ground that there are in fact a number of drainage pipes (排水喉) in Flat 10A, such as the New Pipe, the drainage from the balcony floor, the drainage from the water closet inside the 10A Shower Room, the drainage from the open kitchen inside Flat 10A and the drainage from the other toilet in Flat 10A. Although Mr. Chung and Ms. Yung were present during the testing on 12th August, they did not elaborate on the test done in their respective testimony. In the end, it is unclear from the evidence what exactly was tested and how the test was conducted. In my view, the evidence adduced by the Defendant based on the test done on 12th August 2005 is not clear enough to exclude the New Pipe as a probable source. 100.In any event, I agree with the Plaintiffs’ expert that the coloured water or dye test usually conducted by the Joint Office may not be suitable for this case due to the existence of the Sand Trap. 101.According to the Plaintiffs’ expert, the double slab system with a sand trap in-between is not common in Hong Kong. The presence of the Sand Trap causes “time lag”, “dilution” and “filtration”, which will affect the accuracy of the usual coloured or dye water test conducted by the Joint Office. 102.First, he observes that generally speaking the higher the density of sand or soil, the slower water can seep through it. He opines that the Sand Trap acts like a sponge to absorb water until it reaches its saturation point (i.e. the maximum capacity of water it can hold). This produces a “time lag” effect for water to seep from Flat 10A to Flat 9A. 103.Secondly, the water content inside the Sand Trap will dilute the colouring or dye used in the test. 104.Thirdly, the sand in the Sand Trap has a filtration effect to filter the dye-colour particles. This “dilution” and “filtration” effect of the Sand Trap makes the colouring or dye less observable. 105.He therefore concludes that anycoloured water or dye test conducted by the Joint Office may not be conclusive. I agree. (b6) The Defendant’s other challenges 106.It is the testimony of Ms. Yung that 10A Shower Room was not used from 11th August 2005 to 19th October 2005 when the flooring was opened up. The defence counsel submits that the Waterproof Membrane inside 10A Shower Room could not have been defective because the Plaintiffs continued to notice water leakage over that period. 107.In my view, the defence counsel’s queries can be explained by the fact that there were more than one source of water leakage as suggested by the Plaintiffs’ expert. Although Ms. Yung and her children might have stopped using the 10A Showing Room, they continued to use the washing machine to wash their clothes except for a brief period between 25th and 30th August 2005. The continued use of the washing machine ensured fresh supply of waste water leaking into Flat 9A as recorded by the Plaintiffs. 108.Indeed, it is most telling to note that the Plaintiffs recorded no leakage from 1st to 6th September 2005. This somehow corresponded to the short period of time between 25th and 30th August 2005 when Ms. Yung stopped using the washing machine. 109.Then, the defence counsel observes from the Plaintiffs’ record that there was no leakage:
but Ms. Yung has apparently continued to use the washing machine during those periods. She queries how the leakage could logically relate to the use of the washing machine? 110.The defence counsel has apparently omitted the fact that:
The opening up of the floor and the external wall provided means for water to evaporate away. In my view, this explains why there was no seepage recorded for the first 2 periods. 111.As to the third period, I agree that there is not much in the evidence to explain the phenomenon. However, I note from Ms. Yung’s testimony that the Defendant’s premises has been left vacant since March 2007 when she (and her children) left for New Zealand. It is not clear from the evidence whether they had continued to use the washing machine and the 10A Shower Room right up to the time they left Hong Kong. In those circumstances, I do not consider the fact that there was no leakage since October 2006 to be sufficient to displace the Plaintiffs’ theory. (b7) Conclusion 112.Investigation on water seepage cases is not an exact science. Very often, one would have to turn to circumstantial evidence in order to locate the source of seepage. Having considered all the evidence in this case, I am convinced on the balance of probabilities with the Plaintiff’s theory. I find that the water seeped into Flat 9A was waste water originating from Flat 10A due to the defect in the Waterproof Membrane and the New Pipe. Whether the Defendant should be held liable? 113.Based on my above finding, I have no doubt that the Defendant should be liable. 114.Since the seepage was caused by defects in the renovation of the Defendant’s premises, the Defendant is liable for the nuisance caused to the Plaintiffs. 115.The Defendant is also liable under the terms of the applicable Deeds of Mutual Covenant. Clause 5 in Section II of the DMC provides that:
116.The Third Schedule to the DMC includes the following provisions:
117.I do not agree with the Plaintiffs’ counsel that regulations 46 and 83(b) of the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations (Cap.123I) are applicable to this case. The word “drain” referred to in regulation 46 is defined in s.2 of the Buildings Ordinance (Cap.123) to mean “a drain used for the drainage of one building and any buildings and yards appurtenant thereto”. The New Pipe is obviously not a drain used for the whole building. Moreover, it is apparent from the definition of “latrine” and “latrine fitment” in regulation 2 of Cap.123I that regulation 83(b) is applicable to latrine with a removable receptacle for excrement. No such receptacle installed in 10A Shower Room. Compensation 118.Both experts have met to consider the question of quantum and they have come up with a number of hypothetical scenarios with estimated cost. 119.Both counsel agree that what needs to be considered is:
120.Based on the evidence before me, especially the photographs showing the extent of the damage done to the master bedroom and the other bedroom of Flat 9A and the wardrobe in the master bedroom, I have no hesitation in answering all three questions affirmatively. The experts have agreed that the cost of renovation for such scenario (i.e. Scenario B1) is $26,000. 121.The Plaintiffs cannot be expected to reside at the premises during renovation given the extent of the renovation. Based on the quotation obtained, the Plaintiffs claim the cost of alternative accommodation at $1,100 per day. The Plaintiff’s expert estimates that it would take about 26 days to complete the renovation. Given the scope of work to be done, I find the Defendant’s estimation of 12 days unduly low. I therefore award $28,600 (i.e. $1,100/day x 26 days). 122.The Plaintiffs are also claiming damages for inconvenience and discomfort. This is clearly a recoverable item: see John So v. Lau Hon Man, CACV 110/1993 and Lo Yu Chu v. Kam Fu Lai Development Co Ltd, CACV 50/1994. 123.There is no scientific way of translating inconvenience and discomfort into a sum of money. In John So v. Lau Hon Man, the court awarded $10,000 for water leakage for a period of about 1 and 1/2 months. In Chan Fei Lung(a male) v. Mansion Products Ltd, HCA 336/1990, the court awarded $25,000 as damages for nuisance for a period of two months. In Leung Yung Chun v. Chan Wing Sang, HCA 12235/1998, the court awarded $80,000 for damages for inconvenience for water leakage lasting nearly 2 years. In Chung Che Sum v. Dong Sai Ming Fernando, DCCJ 21504/2001, the court awarded $80,000 water leakage affecting 3 bedrooms for about 2 years. 124.In the present case, water seepage began in mid-July 2005 and was not abated until the end of October 2006. It is clear from the evidence that the Plaintiffs have suffered much distress and inconvenience. The extent of the damage, especially the damage done to the master bedroom, is simply horrendous. The fact that it happened in the master bedroom must have brought much distress and inconvenience to the Plaintiffs. Although the Defendant had entertained requests to investigate the problem at an initial stage and even broke open the floor of the 10A Shower Room for inspection, it refused to entertain further reasonable request from the Plaintiffs and the Property Manager. This has prolonged the agony of the Plaintiffs. In all the circumstances of this case, I consider that an award of $50,000 is justified. 125.Although the Plaintiffs have pleaded a claim for injunction, it is common ground that the Defendant sold its premises in mid-July 2007 and so no injunction can be granted. 126.To sum up, I would award damages to the Plaintiffs totaling $104,600 as follows:
Conclusion 127.There are other minor points taken by the defence counsel in opposition to the Plaintiffs’ claim. Suffice it to say that I have considered all of them before arriving at my conclusion. 128.I find the Defendant liable to the Plaintiffs for nuisance and breach of the DMC as a result of the water seepage from Flat 10A to Flat 9A. The Defendant should compensate the Plaintiffs for loss and damage in the sum of $104,600, together with interest thereon at the judgment rate from the date of writ until payment. 129.Costs normally follow the event. There will also be a costs order nisi that the Defendant should pay to the Plaintiffs the costs of this action, to be taxed if not agreed with certificate for counsel. Unless an application has been made to vary the costs order nisi, the order shall become absolute 14 days after the judgment is handed down.
Representation: Mr. King WONG, instructed by Messrs. Yu, Chan & Yeung, for the Plaintiff Ms. Yanky Lam, instructed by Messrs. Fung Wong Ng & Lam, for the Defendant |
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