Yan Wing Fai Rick and Another v. Century One Ltd

DCCJ 2773 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 2773 OF 2009

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Coram: Deputy District Judge Harold Leong in Court

Date(s) of hearing: 19, 20, 21, 22, 25, 26 October, 16, 17 November, 1 December 2010

Date of handing down Judgment:  2 February 2011

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JUDGMENT

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1.This case concerns a claim of water leakage by the Plaintiffs, who are the registered owners and occupiers of Flat B, 6th Floor, Serene Court, No. 8 Kotewall Road, Hong Kong ("Flat 6B"), against the Defendant which is the registered owner of  Flat B, 7th Floor, Serene Court, No. 8 Kotewall Road, Hong Kong ("Flat 7B").

2.The Plaintiffs are claiming under 3 causes of action : (i) nuisance; (ii) negligence; and (iii) breaches of Clauses 46 and 47 of Section V, and Clause 5 of the 4th Schedule of the Deed of Mutual Covenant registered in the Land Registry by Memorial No. UB5175182 ("the DMC"). The Plaintiffs' case is that there was a water leakage from Flat 7B to Flat 6B which has caused various loss and damages to Flat 6B.

3.The Defendant does not dispute the existence of such water leakage, but disputes the source of water leakage.

4.The current claim originated in the Small Claims Tribunal on 8 December 2008 but was transferred to this Court on 12 June 2009.

Background Facts

5.The following background information are not disputed.

6.Serene Court, No. 8 Kotewall Road, Hong Kong ("Serene Court") is a single tower building with 31 storeys completed for occupation in 1991.

7.The front facade of Serene Court is north facing. There are 2 flats on each storey with the "A" flats occupying the western portion and the "B" flats occupying the eastern portion of the building.

8.Flat 7B is directly above Flat 6B and has an identical floor plan. Flat 6B is situated on the podium level which is actually the lowest level for flats in Serene Court.

9.The Plaintiffs, Madam Chan Wai Man ("Madam Chan") and Mr. Yan Wing Fai ("Mr. Yan") are a married couple living at Flat 6B together with their two sons and domestic helper.

10.The Defendant is a limited company running the business of, inter alia, renting out residential apartments that it owns. Mr. Chow Kai Keung ("Mr. Chow"), the factual witness appearing for the Defendant, and his wife are said to be directors and shareholders of the Defendant. Mr. Chow is in charge of the daily running of the Defendant's business at the relevant time.

11.The Defendant has rented Flat 7B to Barclays Bank from 31 October 2005 to 30 April 2008, and then to a Jewish family from 1 August 2008 until the present time.

The factual evidence

12.The evidence before the Court regarding the details of the water leakages came mainly from 3 sources, the evidence of Madam Chan and Mr. Yan, and what appeared to be contemporaneous records kept by the Management Office labeled as "Serene Court - Case Follow-up Report" ("the Management Report").

13.I found Madam Chan and Mr. Yan to be credible, reliable and honest witnesses, and their accounts of events were consistent with records in the Management Report.

14.Mr. Chow did not live in Serene Court and it was understandable that he could not remember all the details of each event. In essence, his evidence was that there has been long term on-going complaints of water leakages from the Plaintiffs but he has done his best to solve any problems as soon as possible.

Water leakages in 2006

15.The Plaintiffs first complained of water leakage to the Management  Office on 17 July 2006. The leakage was seen in the ceiling of the guest bathroom.

16.According to tests or inspections done by technicians at the time, the source of the water leakage was from the U-trap drain of the bathtub in the guest bathroom of Flat 7B.

17.The disputes between the Plaintiffs and the Defendant concerned with the proposed method of repair work.

18.The Defendant proposed to extend the opening on the ceiling of the guest bathroom of Flat 6B in order to access the underside of the bathtub of Flat 7B to repair the U-trap drain.

19.The Plaintiffs were concerned that this might affect the structure of the building and refused. Instead, they proposed that the repair work should be done at Flat 7B.

20.The Defendant then offered to reimburse the Plaintiffs for their own technician to do the repair from the ceiling of Flat 6B. This offer was refused by the Plaintiffs.

21.The dispute was at loggerheads and the tenants of Flat 7B were advised not to use the guest bathroom until the repair was done.

22.In the event, no repair was done to the U-trap drain but the water leakages appeared to have subsided, at least temporarily.

Water leakages in 2007

23.Madam Chan complained of water leakage again on 7 January 2007 to the Management Office.  The leakage, which stated at around 11 pm the night before, was again seen in the ceiling of the guest bathroom.

24.There was a record of a similar complaint of water leakage on 31 March 2007. An inspection was made by a Mr. Leung of the Management Office and the source of leakage was again thought to be from the U-trap drain at the bottom of the bathtub in Flat 7B.

25.On 21 April 2007, a technician instructed by the tenant of Flat 7B, Mr. Lee, performed a water leak test and it was reported that this also showed that the source of water leakage was from the said U-trap drain.

26.The disputes between the Plaintiffs and the Defendant regarding the proposed method of repair work remained unresolved and, again, no repair was done to the said U-trap drain.

27.In the event, on 20 May 2007, the Defendant's own technician, Mr. Lau, performed some water leakage prevention work in Flat 7B by applying sealants around the seams of the relevant bathtub.

28.This repair, of course, would not have any effect on water leakage from the U-trap drain (if the source was indeed from there). Nevertheless, at least for a while, there appeared to be no more complaint of water leakage from the Plaintiffs.

Water leakages in 2008

29.On 5 February 2008, Madam Chan again complained of water leakage to the Management Office. The next morning, Madam Chan complained of a substantial amount of water leak. The leak seemed to settle later that day without any remedial work.

30.The period with the most substantial amount of water leaks begun on or around 19 September 2008.

31.Madam Chan described the water leak as a continuous dripping from the false ceiling of the guest bathroom at the rate of about one drop every five seconds. A bucket was placed underneath to catch the dripping, and it caught about 1 litre of water a day. Besides this dripping, she also saw other water leakages. There were seepages running down the wall of the guest bathroom like "small streams" onto the bathroom floor, and other seepages running down the wall into the bathtub. Thus, the total amount of water leakages would likely to exceed 1 litre a day.

32.The subsequent events were crucial to this case and the Court is greatly assisted by the detailed record in the Management Report.  I will refer to this in some details :-

i)     Mr. Chow was notified of the water leak complaint on 22 September 2008. He asked the Management Office to follow-up the matter. However, the Management Office was unable to gain access into Flat 7B and was unable to contact Mr. Chow again.

ii)    Mr. Chow called the Management Office at last on 30 September 2008 and arranged for an inspection of Flat 7B on the same morning. Mr. Chow's own technician, Mr. Lau, attended the inspection and performed a water leak test by letting water into the bathtub of Flat 7B. Water leak was then observed at Flat 6B. Mr. Lau performed some repair to the drainage pipes of the relevant bathtub.

iii)   This repair was not effective and Madam Chan still complained of water leakage on 3 October 2008. Mr. Lau returned on 6 October 2008 and performed further tests. Mr. Lau discussed with Mr. Chow and the tenants of Flat 7B was advised not to use the guest bathroom for 2 days.

iv)   Despite this, the water leakages continued. The Management Office staff found wetness on the ceiling above the water-heater in the guest bathroom of Flat 6B and suspected that the source of the water leak was from the water pipes of the water heater of Flat 7B. Mr. Lau was notified and he said he would inform Mr. Chow the possibility of turning off the water heater supply of the guest bathroom of Flat 7B for a water leak test.

v)    Mr. Lau eventually inspected Flat 6B on 14 October 2008 but thought that this was not a burst water heater pipe at Flat 7B. He suggested that this was due to sand and debris under the bathtub which was retaining the water.

vi)   Nevertheless, the water leakages continued. On 28 October 2008, Mr. Lau turned off the water heater supply of the guest bathroom of Flat 7B.

vii)  Despite this, the water leak continued. On 31 October 2008, Mr. Lau decided to turned off the master fresh water supply of Flat 7B for a further water leak test.

viii) At last, the water leak started to slow down and the dripping finally stopped on 3 November 2008, some 50 days after this period of water leak first started.

ix)   When Mr. Lau opened the master fresh water pipe on Flat 7B on 4 November 2008, he observed wetness on the water heater pipes. However, Mr. Lau was still not sure whether this leak was from Flat 7B or the flat above.

x)    Mr. Lau therefore devised a test. He advised shutting off the master fresh water supply for another day and arranged an inspection of Flat 7B the next day. If the water heater pipe was found to be wet, the source of the water leak would likely be from the flat above. If it remained dry, the source would most likely be from the fresh water pipe of Flat 7B.

xi)   As arranged, on the next day (5 November 2008), two staff members from the Management Office inspected the water heater pipe of Flat 7B and found it to be dry, thus showing that the source was from Flat 7B. Mr. Lau was notified.

xii)  As what appeared to be a second test for confirmation, Mr. Lau returned that evening to re-open the master fresh water pipe of Flat 7B. He inspected Flat 6B afterwards and found no immediate water leak.

xiii) However, Madam Chan complained the very next morning, on 6 November 2008, that the water leak increased since the re-opening of the master fresh water pipe of Flat 7B.

xiv) The Management Office staff went up to Flat 7B and found that the left water pipe in the water heater was wet while the right water pipe was dry. Mr. Lau was notified and he advised shutting off the fresh water supply again.

xv)  Therefore, Mr. Lau was careful that he repeated his water leak test to confirm that the source of the water leak was, indeed, from the fresh water pipe of the guest bathroom of Flat 7B.

xvi) On 7 November 2008, Mr. Chow called and the Management Office informed him of the water leak in the water pipe of Flat 7B. Mr. Chow said that he would arrange for repair work as soon as possible.

xvii)   Mr. Lau performed the repair work between 18 November and 1 December 2008.  The repair work involved, amongst others,  replacing the guest bathroom fresh water pipes.

xviii)There was no record of further complaints of water leakages from Flat 6B.

33.According to Madam Chan, the water leakage problem become much less severe since the repair work.

34.The Plaintiffs decided to redecorate the areas of Flat 6B which were damaged by the water leakage (as evidenced by photographs they had taken contemporaneously) between December 2008 and end of January 2009.  They engaged "Promise Interior Decoration Company" for repair works at the guest bathroom, boy's room and master bedroom of Flat 6B. The receipts produced showed that the repair works cost HK$55,660.

35.The Plaintiffs confirmed that there was no apparent water damage to Flat 6B since. In other words, the redecorated areas have remained free of signs of water damage.

36.The Plaintiffs' initial claims are for loss and damages from water leakages up to this point as well as a mandatory injunction for the Defendant to carry out remedial works to rectify the remaining water leakage problem.

37.However, during the trial, the Defendant has come to information that there was substantial renovation work of the guest bathroom of Flat 7B in around early July 2010 and they withdrew the said application for the mandatory injunction.

38.Since the Plaintiffs are now only claiming for loss and damages caused by water leakages problem before the redecoration of Flat 6B, the Court only needs to assess the cause/s of the water leakages prior to the redecoration for the purpose of assessing causation and damages.

The Experts

39.Against this background, the Court has heard evidence from two experts, Mr. Stewart Wong ("Mr. Wong") for the Plaintiffs and Mr. F.K. Ho ("Mr. Ho") for the Defendant.

40.The Court also has the benefit of perusing an individual expert report from each expert and a joint report dated 28 November 2009 ("Joint Statement"). The Joint Statement was compiled by both experts after a series of 5 water leak tests performed in October 2009.

41.At first glance, the Joint Statement appears bizarre: the experts are in general agreement of the results in the series of water leak tests (they were all, by and by, negative) and yet the conclusions of the experts are completely different.

42.This would appear, at first glance, absurd in any scientific venture. However, a more careful scrutiny at the methodology of the investigations conducted by each expert would provide the Court with the explanation.

Experts' CV

43.Each Counsel has spent time in cross-examining the CV of the other side's expert. In particular, much time has been spent in scrutinising Mr. Wong's CV by Mr. Wong, the Defendant's Counsel.

44.My view, as expressed repeatedly during the hearing, is that I am less impressed by an expert's CV than with the soundness of his opinion, in particular, the methodology of his investigation and whether his opinion is based upon a sound scientific model.

45.Adducing expert evidence in Court is not a battle of CVs. The Court is not bound to accept the evidence from an expert with the more impressive CV otherwise this would effectively give the most eminent expert the license, so as to say, to state whatever he liked and expect the Court to accept it without question.

46.I am, of course, not suggesting that the CVs of experts are not important. In cases concerning, for example, disputes at the cutting-edge of science or in the treatment of a rare disease, an expert's opinion would be reinforced if he was the leading authority on the subject, rather than someone who was just reading it off a textbook or a research paper.

47.In the current case, I have asked for relevant scientific literature from each expert in support of his opinion. I would thank them for providing the Court with extracts from various textbooks on the subject of water leakages in buildings. 

48.However, having gone through these documents, I am satisfied that the science behind the occurrence of water leakages in buildings, at least in the areas in dispute in the current case, are far from cutting-edge science. The scientific principles of humidity, condensation, water progression, wind effect, capillary action and efflorescence etc. are long established and understood for many years. Some, dare I say, are well understood since the Victorian times.

49.As such, I would place little weight in each expert's CV in the current case. Instead, it would be a far more beneficial exercise for the Court to examine the methodology of each expert's investigation and the soundness of the scientific model they proposed to explain their opinion.

The investigation by experts

50.Each party instructed an expert subsequent to an order in the Small Claims Tribunal on 26 March 2009.

51.At this stage, it should be obvious to an expert that any inspection or test conducted would be severely handicapped by the fact that there was no further complaint of water leakage (at least to the Management Office) since November 2008.

52.In effect, the experts were asked retrospectively to determine the cause/s  of a water leak when it had substantially stopped. If there was any residual water leak, it was obviously not severe enough to cause any apparent water damage to the redecoration. It was therefore, not surprising that all their tests results were, by and by, negative. Under such circumstances, the only possible source of evidence would be from the history of the case.

53.The Plaintiffs' expert, Mr. Wong, has prepared his individual expert report on 24 April 2009 ("Mr. Wong's Report").

54.Mr. Wong made an inspection done on 2 April 2009 on Flat 6B alone. He did not gain access to Flat 7B.

55.Nevertheless, it is clear from the content of Mr. Wong's Report that he was aware of the history of the water leak (including the various water leak tests performed by Mr. Lau at the time and the repair work done subsequently). He was shown the contemporaneous photographs taken by the Plaintiffs on the damages caused by the water leaks (Mr. Wong's inspection, of course, was done after the redecoration of Flat 6B).

56.During his inspection of the ceiling opening of the guest bathroom of Flat 6B, Mr. Wong still found water dripping from the facilities including fittings around the bathtub of Flat 7B.

57.However, it was clear that this was of a relatively minor nature since, as stated before, there was no obvious damage to the redecoration.

58.It was therefore perfectly proper and reasonable for Mr. Wong to conclude, as he further elaborated in Court, that :-

i)     the original water leak between September and November 2008 was from the fresh water pipe embedded in the walls of the guest bathroom of Flat 7B. This was clear from the history provided by the Plaintiffs as well as the Report.

ii)    the current observable water leakage could be from the facilities of the bathtub of Flat 7B, or from floor slab of Flat 7B.

59.The Defendant's expert, Mr. Ho, has prepared his individual expert report on 18 May 2009 ("Mr. Ho's Report").

60.Mr. Ho made an inspection on both Flat 6B and Flat 7B on 16 May 2009.

61.Mr. Ho's report mentioned that he had obtained the following documents: Mr. Wong's Report and a witness statement of the Defendant (which in fact, was the "Defence" in the Small Claim Tribunal action). He has also obtained information from the tenant of Flat 7B that "water drip occurred during heavy rain".

62.The striking feature of Mr. Ho's Report was that it was entirely based on inspection and "signs" found on 16 May 2009 with no reference to the history of the water leaks as stated in the Management Report and / or by the Plaintiffs.

63.It should therefore be obvious, at least to the parties instructing them, that the experts were on cross-purposes right from the beginning: whilst Mr. Wong sought to address the water leak problems past and present, Mr. Ho only sought to address the water leak problems found at the time of inspection on the assumption that there was a continuous on-going one (perhaps relying on the information that there were water leaks during heavy rain in Flat 7B).

64.This is confirmed by the fact that, when the Court presented the scenario as stated in the Management Report regarding the water leak between September and November 2008, Mr. Ho readily accepted that "there was a big possibility" that fresh water pipe leakage from Flat 7B was to account for that.

65.Mr. Ho then sought to explain himself by stating that he did read the Management Report but thought that it was "speculation" for an expert to rely on matters not "observed first hand". He argued that he did not want to speculate so his opinion was based only on what he found during the inspection.

66.There were major flaws in this argument :-

i)     It was simply wrong for an expert to reject outright any evidence simply because this has not been "observed first hand" by the expert. To draw an example, a doctor would not be able to (and might not wish to!) "observe first hand" every single complaint made by his patient but he would not disregard such information. Disregarding the history of a case was a rejection of an essential part of the investigation, especially in this case because, as discussed above, there appeared to be no further substantial water leak problems at the time of the investigation. Basing an opinion on all available evidence was not "speculation". If Mr. Ho was in doubt of the reliability of the Management Report, he should interview the witnesses (for example, the Management Office staff, the Plaintiffs and especially Mr. Lau) to verify the accuracy of the history. There should not be any difficulties in doing so as part of his investigation.

ii)    Having rejected, as it appeared, the Management Report on this basis, Mr. Ho appeared to accept the evidence from the tenant of Flat 7B about the incidents of water leaks during heavy rain. Mr. Ho obviously did not "observe first hand" such water leakages either. This was an obvious act of "cherry picking" at the evidence.

iii)   To support Mr. Ho's opinion that the source of the water leakages was from the external walls, the Defendant sought to rely on the fact that several (but not all) complaints of water leaks appeared to coincide with the dates of typhoons or rainstorms. The Defendant did so by cross referring relevant dates in the Management Report to the Hong Kong Observatory records. Mr. Ho readily accepted these dates in the Management Report as evidence but did not provide any reason why he should accept the part of the Management Report which appeared to support his opinion whilst rejecting other parts which did not. This was another example of "cherry picking" at the evidence.

67.During the inspection, Mr. Ho only found condensation and no obvious signs on water leaks at the underside of the bathtub of guest bathroom of Flat 7B. He found cracks and defective joint sealants in the exterior walls of Flat 6B and on the podium floors, and he concluded that these were the source of the water leaks.

68.Mr. Wong did not agree with such observations in the external walls and podium floors. He stated that if there was water leakage through the external walls, a phenomenon called "efflorescence" would be seen. None was observed.

69."Efflorescence" is a white colour stain on the wall caused by ingress of water into building materials. The water dissolves the soluble components of the building material and stains the wall when it leaks out again.

70.Nevertheless, neither experts could produce any evidence that the finding of cracks or defective joint sealants would necessarily mean a water leak through the external wall, or that the absence of "efflorescence" would necessarily mean that there was no water leak through the external wall. Thus, either observations was far from being a "diagnostic" sign to prove or disprove, as the case may be, an external wall water leak.

71.The 5 water leakage tests mentioned the Joint Statement was meant to test for the source of water leaks but, as mentioned above, the results of these tests were, on the whole, negative.

72.For the "Spray Test to internal walls around bathtub", there was some dispute as to whether it showed a water leak or simply condensation, but suffice to say that the extent of water leak or condensation, if any, would not have accounted for the extent of water leak observed during September to November 2008.

73.The "Spray Test to window of Guest Bathroom of Flat 7B" involved spraying water on the external wall with a high pressure hose for half an hour. This would have been a significant test since it was set up to test Mr. Ho's opinion, that is, a water leakage through the external walls and podium floors into Flat 6B. The result was agreed between the two experts: there was no water leakages seen in the guest bathroom of Flat 6B.

74.It was, however, surprising that Mr. Ho still maintained his opinion. His explanation was that the test did not reflect the actual condition of a typhoon or torrential rain in terms of water pressure nor duration. In other words, he was saying that in a typhoon or rainstorm, the water pressure would be higher and the duration would be longer than half an hour.

75.In any scientific investigation, one could not turn a negative result into a "positive" one by retrospectively stating that, if one has done more, or if one has persisted longer, one would see positive results. The obvious flaw in this argument was that all tests had limitations and, in this case, there could always be a "higher" pressure or a "longer" duration for the test, thus the excuse for a negative finding would always exist!

76.The only proper conclusion to be drawn from the test should be the obvious one : there was no evidence of water leakage through the external walls or podium floors.

77.Mr. Ho's opinion has further problems :

i)     It manifestly failed to explain why the water leaks subsided after November 2008 when no repair was done to the external wall all this time.

ii)    This theory also failed to account for how there could be a continuous water leakage for a period of some 50 days when it was self-evident that there could not have been a continuous rainstorm or typhoon over this period.

iii)   Putting it in another way, there would be many days over this period of 50 days when the water pressure exerted by (and the duration of) any rainstorms must have been below that of the "Spray Test to window of Guest Bathroom of Flat 7B", yet the water had leaked continuously throughout this time when the subsequent "Spray Test" yielded no leak.

iv)   Further, in order to explain the multiple sites of water damages observed in Flat 6B, Mr. Ho proposed an elaborate theory of multiple areas of water entries at the external walls and podium floor tiles, cracks through various parts of cement rendering, cracks though the entire concrete structural walls at various exact areas, cracks inside the concrete ceiling slab of the guest bathroom of a length through exact areas, cracks on the guest bathroom wall tiles allowing simultaneously an internal source of water leak (from the shower of guest bathroom of Flat 6B through to the boy's bedroom wall) etc.. These pathways were illustrated in the Sketch enclosed in Mr. Ho's Report.

v)    Besides what he claimed as various defects observed in the external walls, podium floor and guest bathroom wall, Mr. Ho could not produce any evidence of these internal cracks and water pathways. Thus, these internal cracks and water pathways were based upon pure assumptions.

vi)   To account for the episode of most significant water leaks, all these elaborate network of cracks and defects would have to "appear" (or substantially "appear") more or less simultaneously and spontaneously around September 2008, only to "disappear" more or less simultaneously and spontaneously around November 2008, and not to "re-appear" again despite there having no repair done to the external walls, podium floors, or bathroom wall tiles.

vii)  The inherent improbability of this happening is mind-boggling, especially when compared to what was the glaringly obvious source of water leak from the Management Report: that there was a fresh water pipe burst in the guest bathroom of Flat 7B in September 2008 and it was replaced in November 2008.

78.Mr. Ho's opinion could only be the product of working backwards from a predetermined conclusion: having already decided that the water leak was from the external wall, an elaborate theory was drawn up to fit the observable water damage pattern. This was not a scientific exercise.

79.Therefore, this Court rejects Mr. Ho's opinion that external wall leakage has been the source responsible for the water damages to Flat 6B.

The sources of water leakages

80.In contrast to the elaborate and improbable model proposed by Mr. Ho, Mr. Wong showed the Court a much simpler and more logical scheme of how water flow from this one source of water leak (that is, the fresh water pipe burst) could account for all the water damages observed in Flat 6B.

81.Having considered all the evidence before it, the Court finds that there have been multiple sources of water leaks over time, as follows :-

i)     From the fresh water pipes which have accounted for the most substantial amount of damages between the period September to November 2008.

ii)    From the bathtub of the guest bathroom of Flat 7B including all the facilities of the bathtub including the U-trap drain etc..

iii)   From the seams around the bathtub and ceramic walls of the guest bathroom of Flat 7B which has been repaired at various points of time.

82.It is not possible now to assess the exact contribution to the overall water leakage damage from bathtub and facilities and the seams around the bathtub and the ceramic walls :-

i)     There were evidence before the Court that various sealants and bathtub surroundings have been repaired at various times over the years.

ii)    Although the bathtub facilities were not replaced until July 2010, the extent of water leakage from this source would obviously be related to the actual amount of usage of the bathtub. However :-

a)     The earlier tenants were a couple so the likely amount of usage of the guest bathtub would be low.

b)    They were also advised at some point not to use the bathroom.

c)     Flat 7B was unoccupied between around 30 April to 1 August 2008.

83.Although the effect of condensation was observed by both experts on the bottom of the bathtub, the Court would discount this as a source of water leakage for the following reasons :-

i)     The experts accepted that the volume under the bathtub was limited to no more than 2 to 3 cubic metres.

ii)    This volume of air was relatively enclosed under the bathtub. It was self-evidently not open to the atmosphere. As such, the maximum amount of water vapour that could be contained by this volume of air would be limited.  

iii)   Condensation could only occur where the air was in direct contact with the under surface of the bathtub. As a mostly enclosed space, there would be little air movement. Without significant air movement, only a limited amount of air would come into contact so the amount of water formed by condensation would have been far less than the maximum amount of water that the whole volume of air could hold.

iv)   Further, condensation would only occur at those times when there was a temperature difference between the bathtub and the enclosed volume of air underneath it, for example, when cold water was placed in the bathtub above.  This would limit the time that condensation could take place.

v)    As such, the effect condensation could not have explained the continuous water leakage of more than 1 litre a day for around 50 days. No sound scientific model has been put forward by the experts to show that this could happen.

vi)   In fact, Mr. Ho agreed that if this was the extent of the water leak, it was not likely to be caused by condensation under the bathtub.

vii)  Therefore, any water formed by condensation could not have led to any significant water leakage or damage.

On liability

84.Having found that the sources of the water leakages were from Flat 7B, the Court needs to consider the next issue, namely, whether the Defendant was negligent and / or in breach of the DMC in causing the water leakages in Flat 6B and / or whether there was nuisance or annoyance caused to the Plaintiffs.

85.Once that the Defendant was made aware that there was a water leakage the source of which could reasonably be identified to be from its property, it has the duty to investigate, locate and repair such water leakage in a prompt and reasonable manner.

86.Mr. Chow has maintained that, essentially, he has done his best at all times to solve any water leak problems as soon as possible.

87.In support of his claimed diligence in dealing with any complaints, Mr. Chow told the Court that the Defendant company depended on rental income and that he worked full time dealing with complaints from tenants and others in order to "retain the tenants". Mr. Chow said that he would repair water leaks immediately so that his tenants would not be disturbed. He said that Barclays Bank, the previous tenant, exercised the "break clause" to terminate the tenancy after 1 year. He alleged that this was because the management had cut off water supply to the guest bathroom for 3 weeks in order to do water leakage tests. (There was, in fact, no evidence to support that the management ever did this.) Mr. Chow was obviously very concerned about income of the Defendant. He mentioned that there was once that Flat 7B was not rented out for a whole year.

88.It was not in dispute that Mr. Chow was aware of a source of water leakage from Flat 7B as early as July 2006. Mr. Chow told the Court that he received a letter from the Management Office informing him that of a suspected water leak from the U-trap drain of the bathtub of the guest bathroom of Flat 7B. He said that Barclays Bank employed a technician at the time who inspected the water leak and recommended the repair to be done at Flat 6B. This was refused by Flat 6B, so no repair was done.

89.Under cross examination, Mr. Chow agreed that he was aware of the dispute in the method of repair. He was aware that the Plaintiffs did not wish the repair work to be done at the ceiling of Flat 6B because the ceiling opening needed to be extended, and they were concerned that this would be dangerous because there might be a structural beam there.  Mr. Chow did not agree that there was a structural beam, saying that this was a sinking slab and was not structural. He claimed that he knew the building well.

90.Mr. Chow was also asked about the Management Report entry dated 29 April 2007 recording an inspection by Mr. Chow and a technician. It stated that the technician had suggested an alternative method by doing the repair work in Flat 7B so that there was no need to extend the ceiling opening at Flat 6B. Mr. Chow was evasive in his reply. He denied hearing this, and said that it was impossible. He then said there was no opening at the guest bathroom of Flat 7B to do the repair so the bathtub needed to be removed and replaced so this could not be considered a "repair" work. More tellingly, he also said that this would mean that his tenants could not use the guest bathroom during the repair work.

91.Mr. Chow's attitude was even more clear when he was asked by the Court about an incident when water leaked from Flat 8B to Flat 7B :-

i)     The Defendant has produced various correspondence between the Defendant and the Management Office with the intention to support their allegation that there were multiple sources of water leaks in Serene Court.

ii)    However, from these correspondence, the Court incidentally noted that one of such incidents concerned a water leakage from the drainage of the bathtub of the master bathroom of Flat 8B onto the ceiling of the master bathroom of Flat 7B in December 2003. This was, therefore, much the same as the situation found in July 2006 between Flat 7B and Flat 6B, with the exception that the leakage was from the master bathroom and not the guest bathroom.

iii)   The Court has ascertained from Mr. Chow that the ceiling design of the master bathroom and the guest bathroom was much the same, that is, with the same ceiling opening under the bathtub of the flat above.

iv)   However, in this case, the repair work to the drainage of the bathtub was performed in the flat above, that is, at Flat 8B, and not at Flat 7B by extending the ceiling opening.

v)    When asked by the Court about how this could be done, Mr. Chow answer was that Flat 8B was occupied by its owner, so "they could do anything they like".

92.Mr. Chow clearly could not have believed, as he claimed, that the "alternative" repair method at Flat 7B was "impossible": the same was done in Flat 8B in 2003. He refused this method because this would disturb and cause inconvenience to his tenants. The Defendant very much depended on rental income so, obviously, keeping the tenant happy was important to Mr. Chow.

93.From the Plaintiffs' point of view, given that there were two methods to repair the water leakage, it was entirely reasonable to reject the method which would disturb them further or, worst, cause structural damage to the building. The source of the water leakage was from Flat 7B, why should Flat 6B be forced to suffer further trouble by the repair work when it could be done at Flat 7B?

94.Mr. Chow's subsequent offer to pay for the repair work to be done at Flat 6B by the Plaintiff's own technician was entirely misconceived: the dispute was not about the money nor the instruction of the technician, but about the method of repair.

95.As such, Mr. Chow and the Defendant were contented just to leave matters as it was, and instructed Mr. Lau to put some bathroom sealants around the bathtub in question (despite that there was no evidence to show that this was the suspected source, or the only suspected source, of water leakage at the time). Mr. Chow's reason for not repairing the U-trap drain was entirely due to his own selfishness.

96.Mr. Chow now sought to dispute that the U-trap drain was not the actual cause of water leak, stating that the water leakages appeared to have stopped (temporarily) in May 2007 after the new sealant was placed around the bathtub.

97.As I stated above, the fact that there has been a "no leak" period after the sealant placement would not prove that defective bathroom sealant was the source, or the only source, of water leakage. There was a second source from the U-trap drain but this was masked by the fact that the bathtub was rarely used.

98.In any case, at this stage, Mr. Chow and the Defendant were aware that there was a water leakage from Flat 7B and the source was believed to be from the U-trap drain. The onus was on the Defendant to investigate, locate and repair the water leak in a prompt and reasonable manner and the Defendant has clearly failed to do so.

99.The consequence of this failure was that, when the substantial leakage occurred in September 2008, there was much delay and time wasted in the investigation.

100.From the Management Report, Mr. Chow was informed of the water leakage on the third day after it started (22 September 2008) and yet he did not take any immediate steps in organising an inspection of Flat 7B to investigate the source. The Management could not gain access to Flat 7B until 29 September 2008, some 7 days after Mr. Chow was notified, and when considering that the water was leaking at the rate of 1 litre a day or more, this delay was unacceptable.

101.In fact, Mr. Lau was still attempting to repair the drainage of the bathtub on 30 September 2008. When this did not work, Mr. Lau continued to do various tests to look for other sources of water leakages and it was only on 31 October 2008 that the decision was made to shut off the fresh water supply of Flat 7B. The water leak started to get under control after this time.

102.This was some 42 days after the water leakage started. Time was wasted in the slow initial response by Mr. Chow and by Mr. Lau testing long-suspected water leak sources in a "wild goose chase" when such should have been investigated and repaired previously. When the Plaintiffs was facing a substantial and continuous water leak, these delays were clearly unacceptable.

103.In the event, the source of the water leak was finally identified on 6 November 2008 after numerous tests. Repair was done between 18 November and 1 December 2008. By this time, it was a matter of "too little, too late" and substantial water damages had already occurred to Flat 6B.

104.The Court was not in the least convinced by Mr. Chow's contention that he has done his best to solve any water leakage problem as soon as possible. Rather, the evidence showed that Mr. Chow was a selfish man who clearly placed his own (and the Defendant's) commercial interests above that of his neighbours. Further, his suggestion that he has replaced the fresh water pipe because of a mere "suspicion" not only contradicted the Management Report but was entirely unbelievable given Mr. Chow's reluctance to disturb his tenants all along.

105.This Court has no doubt that Mr. Chow was all along aware, as found by his trusted technician Mr. Lau, that the burst fresh water pipe was the main source of the water leak. It was perhaps telling that Mr. Chow did not call Mr. Lau to give evidence but instead instructed Mr. Ho (whose opinion was plainly defective) as an expert in an attempt to "muddy the water".

106.This Court therefore finds that the Defendant has caused a nuisance to the Plaintiffs, and has been negligent in failing to maintain and to keep in good repair the fresh water pipes and bathtub facilities including the U-trap drain. The Court also finds the Defendant in breach of Clauses 46 and 47, and Clause 5 of the 4th Schedule of the DMC.

Reliefs

Costs of Repair

107.Mr. Wong's assessment of the costs for repair was based upon a realistic and reasonable standard based upon the expectation of an occupant of a luxury flat, which a flat in Serene Court clearly is.

108.On the other hand, Mr. Ho's assessment was based upon what he said was the standard of repair for government housings, which, according to him, was more concerned about safety and functional issues rather than overall aesthetics, fit and finish of the repair work.

109.However, in the law of negligence, the principle of compensation is based upon restoring the victim, as far as possible on monetary terms, to the level as if no negligence has been done. In this case, we are talking about restoring to the standard of decoration expected of a luxury flat, and not to the standard of mere functional and safety concern.

110.This Court will therefore award HK$40,362.00 under this head of claim.

Fee for Survey Reports

111.This Court will accordingly allow Survey Report fees of Mr. Wong at HK$12,000.00.

Loss of Enjoyment

112.The Plaintiffs have been troubled by water leakages on and off over a period of more than two years, and have suffered severe problems continuously for some 50 days. By the end, the condition of Flat 6B has clearly deteriorated to a very unpleasant level. Having considered the precedents provided by both parties, this Court will award HK$40,000 under this head of claim.

Injunction

113.The Plaintiffs initially claimed for a mandatory injunction that the Defendant do carry out remedial works given the findings of Mr. Wong that there was still signs of water leakage at the time of Mr. Wong's Report and the Joint Statement. The claim was only dropped during the trial when evidence from Mr. Chow showed that the bathroom facilities had all been replaced in around early July 2010.

114.The Court finds that the Plaintiffs have sufficient evidence and did nothing wrong to pursue the remedy initially, and have been entirely reasonable and proper in dropping the claim when there was a change in circumstances.

Costs

115.Accordingly, the Court will give an Order Nisi for the Defendant to pay the Plaintiffs' costs of this action, to be taxed if not agreed, with certificate for counsel.

Ms. Jolie Chao instructed by Messrs. Yip, Tse & Tsang for the Plaintiffs

Mr. Tim Wong instructed by Messrs. Huen & Partners for the Defendant