Leung Po Wing Bowen Joseph and Another v. Guo Wei
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DCCJ 1843/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1843 OF 2009 ____________ BETWEEN
____________ Coram : Her Honour Judge H.C. Wong in Court Dates of Hearing : 8-11, 24 February 2011 and 16 March 2011 Date of Handing Down Judgment : 6 May 2011 JUDGMENT 1.The Plaintiff claimed against the Defendant for the sum of $104,641 as damages incurred on the reinstatement of their property, surveyor reports and hotel accommodation during renovation of the property damaged by water leakage from the Defendant’s premises. The Defendant is the owner of Flat A, 5th Floor, Block 22 Baguio Villa, 555 Victoria Road, Hong Kong (“Flat 5A”) and the Plaintiffs are owners of Flat A, 4th Floor, Block 22, Baguio Villa, 555 Victoria Road, Hong Kong (“Flat 4A”). 2.The Plaintiff claimed the Defendant had wrongfully caused or permitted water to escape, seep or leak from Flat 5A into Flat 4A due to the negligence of the Defendant in failing to install proper water supply pipes to ensure water would not escape or leak from the pipes; failing to inspect or maintain or repair the water supply pipes; failing to take any sufficient steps to prevent water leakage; and failing to heed the request of the Plaintiffs to carry out proper and effective repairs at the Defendant’s premises so as to prevent water leakages. 3.The Plaintiffs further relied on the Deed of Mutual Covenant of 7 August 1979 (“the DMC”) where the Defendant covenanted not to create a nuisance, annoyance or cause damages or inconvenience to other occupiers of the building under clause 10(c) of the DMC. 4.The Defendant denied the water leakage into Flat 4A had originated from Flat 5A. She claimed the leakage was beyond the control of the Defendant because leakages had come from the flush water pipe of Flat 6A located above Flat 5A. The Defendant further denied she had ever caused any nuisance or annoyance to the Plaintiff. 5.The Statement of Issues filed by the parties on 19 May 2010 are:-
6.The Plaintiff also relied on clause 10(c) of the DMC claiming the Defendant was in breach of the DMC because the water leakages constituted a nuisance and annoyance to the Plaintiffs. Consequently, the issue on whether the Defendant was in breach of clause 10(c) of the DMC by causing nuisance and annoyance to the Plaintiffs should also be determined. Background 7.The first incident of water leakage was discovered by the Plaintiffs’ son, Mr. Leung Yat Yin, Ronald, who was living at Flat 4A on 26 July 2008. He reported the leakage immediately to the Baguio Villa Management Office operated by International Property Management Limited (“IPM”) requesting IPM to investigate the cause of water leakage in Flat 4A. IPM recorded the complaint in the incidents book at the management office and the action of its staff in relation to the leakages at 4A and 5A. The incidents book for the period between 23 July 2008 and 28 August 2008 has been produced at pages 354 to 358 of Bundle B. The incidents book is an independent record kept by the management office, it is accepted as an accurate record of the dates of the complaints and action taken by the management office staff. An English translation of the record can be found in the final submission of Miss Ho, Counsel for the Defendant. The relevant record is as follows:-
The Plaintiff’s Case 8.Mr. Leung first discovered water trickling down from the ceiling to the floor at a few spots in the living/dining room of Flat 4A on 26 July 2008. The leakages continued between 27th and 29th of July. Mr. Leung later found cracks appearing and water leaking from different points along the cracks and water marks appeared along the top edge of the partition wall between the dining room and the guest bathroom and the adjoining ceiling. On the evening of 29 July 2008, he contacted Mr. Simon Chan of Wing Tai Engineering Company (“Mr. Chan”), the plumber and contractor who performed the decoration work at Flat 4A in December 2005. After Mr. Chan inspected Flat 4A to investigate the cause of water leakage, he believed the water leakage came from the upper floor Flat 5A owned and occupied by the Defendant. 9.On 30 July 2008, the IPM staff informed Mr. Leung that the supply of potable water to Flat 5A had been switched off the day before to check if the leakage would continue. Mr. Leung found no noticeable improvement as water continued to trickle down from the ceiling at Flat 4A. After Mr. Chan inspected Flat 5A again, he informed Mr. Leung the water leakage at 4A was caused by the leakage of the under floor fresh water pipes in Flat 5A, he believed water was seeping through the floor slab of Flat 5A into the ceiling of Flat 4A. He advised Mr. Kam, the husband of the Defendant, to stop the water leakage from the floor. 10.According to Mr. Leung, between 31 July and 1 to 3 August 2008, the water leakage problem had continued. Cracks on the dining room ceiling extended further in different directions and water was dripping from a number of areas simultaneously and plaster was beginning to peel off. He reported the problem to the management office. In response to the complaint, the staff of IPM switched off the fresh water supply to Flat 5A between 31 July and 4 August 2008, however, there was no improvement to the water leakage at Flat 4A. Mr. Leung requested the Defendant to rectify the leakage problem in writing through his solicitor on 7 August 2008, but the leakage problem did not abate. On 14 August 2008, Mr. Leung consulted Forewin Consultants Limited, a firm of surveyors, to investigate the cause of water leakage. 11.It was Mr. Leung’s evidence that on 21 August 2008, he found the cracks on the ceiling had extended across the corridor into the bedroom and water marks were found in the bedroom ceiling and in the wardrobe. On 28 August 2008, Mr. Leung found the leakage had reduced when water stopped dripping from the ceiling. On or about 25 September 2008, he found the problem of water leakage had completely subsided and the water marks dried up although the cracks remained and the plaster and paint continued to peel off. He requested Forewin Consultants Limited to inspect Flat 4A and to make an assessment of the damage and the cost of repair. 12.Mr. Leung claimed that due to the substantial damage caused by the water leakage into Flat 4A, he had to move out of Flat 4A and stayed in a hotel during the period of damage repair between 26 September and mid-October 2008. The cost of repair and hotel expenses amounted to $104,641. 13.The Plaintiff produced two expert reports, the first one was from Mr. Simon Chan of Wing Tai Engineering Co., the second from Forewin Consultants Limited. In his report of 11 August 2008, after inspection of Flats 4A, 5A and 6A, Mr. Chan concluded the water leakage at Flat 4A was caused by the leaking under floor fresh water pipe running from the guest bathroom through the corridor and the living room into the kitchen due to failure of maintenance (p. 113 of bundle A). The report from Forewin Consultants Limited of 26 October 2008 concluded that water leakage into Flat 4A was probably caused by leakages from the main flush water pipes and the potable water supply pipes at Flat 5A. It recommended replacement of both potable and flush water supply pipes to stop leakages recurring. The Defence Case 14.Mr. Kam, husband of the Defendant, gave evidence at the hearing. At the time of the water leakage incident in July and August 2008 he was living with his family at Flat 5A. A few days before 23 July 2008, he found 3 water marks at Flat 5A and these marks had gradually enlarged, they were found at:-
15.He reported the incident to the management office. The staff at IPM confirmed after inspection of Flat 5A the water marks on the three areas. On 26 July, Mr. Kam learned from the management office that Flat 4A was complaining of water dripping from the ceiling. IPM suspected the water leakage had probably originated from Flat 5A and asked him to turn off the valve inside the guest bathroom at Flat 5A to suspend the fresh water supply to the guest bathroom. He did so, but was informed the condition at Flat 4A did not abate. 16.On 27 July 2008, at the suggestion of IPM, the fresh water supply to Flat 5A was shut down during the daytime. However, the water leakage problem at Flat 4A did not stop. Mr. Kam found the water marks on the walls of Flat 5A still remained. On 29th July, the staff of IPM informed him that the situation at Flat 4A was deteriorating and suggested shutting down the fresh water supply at Flat 5A entirely for most of the day leaving only a couple of hours during the morning and evening for water supply to Flat 5A. He complied with the request, but was informed that in spite of the shut down of the fresh water supply to Flat 5A, Flat 4A’s leakage problem had continued, he also found the water marks on the walls of Flat 5A had remained. Mr. Kam therefore suspected the source of water leakage to Flat 4A did not originate from the fresh water supply to Flat 5A. On 30 July 2008, at the request of Mr. Leung of Flat 4A, he allowed Mr. Chan to inspect Flat 5A to investigate the cause of leakage into Flat 4A. Mr. Chan told him the water leakage was caused by the under floor fresh water pipe at Flat 5A running from the guest bathroom through the living room into the kitchen. Mr. Chan also told him that the design of the building had such a fresh water pipe installed under the floor to supply hot water to the kitchen. 17.On 1 August 2008, Mr. Kam found a pool of water on the window sill in the living room, as water was running continuously from the window sill, he immediately reported it to the management office. After Mr. Leung and Mr. Chan inspected Flat 5A on 2 August 2008, Mr. Chan insisted the water leakage at Flat 5A was caused by the fresh water pipe under the living room floor. Mr. Kam, however, questioned this claim for the level of the water marks on the wall between the guest bathroom and the living room at Flat 5A had by then risen to almost 8 feet above the floor level. 18.On 4 August 2008, Mr. Choi of the management office visited Flat 5A to carry out a test on the valve of a water pipe found on the external wall of the kitchen of Flat 5A. He confirmed the valve controlled the fresh water supply into Flat 5A after the test. Mr. Kam claimed he had confirmation from his contractor Mr. Au Yeung that there had been some modification work done to the fresh water supply pipes to Flat 5A resulting in the installation of fresh water supply pipes running along the external walls of the unit before Mr. Kam and his family moved into Flat 5A. Consequently, the original fresh water supply pipe was abandoned before Mr. Kam became a resident of Flat 5A. 19.On 2 August 2008, Mr. Kam examined the watermarks at his home carefully and found water leaking from the ceiling to the floor at the window. As there was a curtain covering the area, he did not notice before the water marks from the ceiling to the bottom of the window covering part of the horizontal support column above the window. He put a towel at the window sill to absorb the water, but as the amount of water was large, water continued to leak from the towel, he had to put two containers to collect the water from two locations to hold the water from the window sill. He also kept a record of the volume of water collected from the two containers twice a day and he kept the management office informed of his recordings. 20.On 3 August 2008, Mr. Kam and the management office obtained the consent of the owner of Flat 6C to examine the guest bathroom and living room of Flat 6A. Mr. Kam claimed that he found a suspected leakage point at the guest bathroom of Flat 6A where the flush water supply pipe was connected to the toilet inside the guest bathroom of Flat 6A. On 7th August, he requested the management office to turn off the flush water supply to all units in Block A of the building between 1000 to 1700 hours. He found, after the flush water supply to all Block A units was suspended, water stopped leaking from the ceiling above the window at Flat 5A. On 14 August, a test to shut down the flush water supply to all Block A units in the building was conducted again, Mr. Kam found the water leakage at Flat 5A had suspended and it resumed 50 minutes after the flush water supply was turned back on. 21.On 26 August 2008, Mr. Lee the owner of Flat 6A, after examining Flats 4A and 5A, instructed his contractor to install a temporary valve on the flush water supply pipe outside the guest bathroom of Flat 6A and turned off the supply. Mr. Kam found on the next day, the water leakage at the ceiling of Flat 5A had stopped. However, the water leakage from the ceiling of Flat 4A had only diminished. On 28th August, Flat 4A reported the water leakage had subsided. 22.Mr. Kam after consulting his expert Trusty Surveyor, concluded that water leakages into Flats 5A and 4A was caused by the flush water supply pipe to the guest bathroom of Flat 6A. It was because flush water was leaking profusely from Flat 6A into Flat 5A and accumulated on the floor of Flat 5A. As a result, the timber flooring in Flat 5A was badly damaged, buckled and became detached from the floor. He also admitted that he found water coming out from a couple of timber floor joints. 23.The Defence claimed that the water leakage was caused by Flat 6A not Flat 5A and that the Defendant had rendered all necessary assistance to the management office and to Flat 4A to locate the source of water leakage. Furthermore, the Defendant had also obtained assistance from experts to resolve the water leakage problem and that Flat 5A had also suffered serious damage due to water leakage from Flat 6A. Expert Reports 24.Both the Plaintiffs and the Defendant produced a number of expert reports. The first report came from the Plaintiff’s plumber Mr. Simon Chan on 11 August 2008 with a supplemental report on 20 January 2010 and a report from their surveyor Forewin Consultants Limited on 26 October 2008 with a supplemental report on 20 January 2010. The Defence’s expert Trusty Surveyors prepared a report on 3 October 2008 followed by a supplementary report on 12 November 2009. On the direction of Master Lo, the parties’ experts prepared a joint report on 18 November 2010, it is a joint report of Mr. Man Pui Kwan of Forewin Consultants Limited, Simon Chan Man Leung of Wing Tai Engineering and Mr. Lau Wing Wai Patrick of Trusty Surveyors Hong Kong Limited. 25.Paragraph 1.3 of the joint report stated:-
26.Under paragraph 2 of the joint report on water leaking from Flat 5A into Flat 4A, paragraph 2(a) stated:-
27.Paragraph 2.1(a) of the joint report repeated the Defendant’s expert opinion in his report admitting there were water stain marks, cracks and peeled off paint found on the ceilings and high level of walls in the living/dining room of 4A during inspection on 19 September 2008. Paragraph 2.1(b) and (c) repeated the condition of water drippings, cracks, water marks, mould and blistered paint found on the ceilings and walls in the living and dining room of 4A on 14 August 2008 and that on 29 July 2008 the ceilings at the living room, guest bedroom and master bedroom were seriously damaged, water at the ceiling was leaking at the rate of 20 drops per second. Paragraph 2.1(b) and (c) repeated the Plaintiff’s expert report when the two experts inspected Flat 4A on relevant days. In paragraph 2.2(a), the Defendant’s expert report attributed the water seepage problem in Flat 4A to the water flooding on the floor of Flat 5A due to leakage from Flat 6A. While paragraph 2.2(b) recorded the Plaintiff’s expert report stating the cause of water leakage at 4A was due to the flooded floor at 5A. The photographs taken on 19 September 2008 at 5A in Appendix 3 of the Trusty Survey Report showed the wet and buckled timber flooring at 5A due to water accumulation. 28.Paragraph 3 of the joint report set out the differences in the Plaintiffs’ and Defendant’s experts:-
29.Clearly, the Plaintiff and the Defence’s experts could not agree on the cause of the water leakage into Flat 4A. The Plaintiff’s experts based their opinions on the area of moisture found, the damp and buckling timber floor at 5A as evidence that there was water leakage at the under floor fresh water supply pipe between the guest bathroom and the kitchen, that the buckled timber floor outside the guest bathroom and the corridor demonstrated the source of the water leakage (p. 225 of Bundle A). The Defence expert on the other hand, pointed to the fact that after Flat 6A fixed its flush water supply pipe on 26 August 2008, Flat 5A’s water leakage suspended on the next day and Flat 4A water leakage also ceased on 28 August 2008. It showed therefore the sole cause of leakage came from the flush water supply at Flat 6A. The Defence expert Mr. Lau disagreed with the Plaintiff’s experts that there was a fresh water supply pipe underneath the timber floor of 5A running from the guest bathroom to the kitchen as he found an electric water heater in the kitchen and gas water heaters in the two bathrooms in Flat 5A. There were no approved plans of Flat 5A to show there was an under floor fresh water supply pipe installed by the developer, the contractor or the architect. Furthermore, there were fresh water supply pipes running along the external walls of the unit from the mains to the kitchen at Flat 5A, thus ruling out the usage of the alleged under floor fresh water supply pipe to supply hot water from the guest bathroom to the kitchen. 30.The Plaintiff’s expert claimed that if the flush water pipe at 6A was leaking flush water into 5A to cause flooding on the living room and the corridor floor at Flat 5A, the living room ceiling of Flat 5A should also have leaked due to accumulation of water from Flat 6A, damaging the Flat 5A ceiling in the process. However, there were no leakages at the ceilings of Flat 5A while the timber flooring at Flat 5A was wet through causing the floor boards to buckle and water accumulation at the base of the timber flooring. The flooding caused leakages into the ceiling of Flat 4A’s living room and the adjoining wall of the guest bathroom. When the unit A flush water supply was suspended from 10 a.m. to 5 p.m. on 7 August 2008, water seepages at Flat 5A ceased within one hour, but the water seepage at Flat 4A failed to abate. 31.According to Mr. Chan, all units at the Baguio Villa estate were originally installed with gas water heaters in the kitchen. These heaters were abandoned because they failed to comply with the requirements of the Electrical and Mechanical Services Department. It was Mr. Chan’s evidence that in order to supply hot water to the kitchen, units in the building were installed with fresh water supply pipes embedded in the floor between the guest bathroom and the kitchen. Mr. Chan pointed to photographs 10 to 11 and 16 to 18 of Appendix 3 of the Defence’s expert report and Appendix I of the joint report showing cold and hot water supply pipes from the gas heater at the guest bathroom at the external wall of the guest bathroom of the building leading back into the floor slab of Flat 5A. Mr. Kam disagreed with Mr. Chan, he pointed out that the floor slab of Flat 5A was below the point of entry of the fresh water pipes indicated by Mr. Chan in the photograph. He believed they led back to the bath tub area rather than the floor slab of Flat 5A (p. 259 of Bundle A). 32.Mr. Simon Chan is a licensed plumber, he admitted in Court he is a relative of the Plaintiffs. He was contacted by Mr. Leung when water leakage was found in Flat 4A and had an opportunity to inspect Flat 4A soon after leakages appeared in Flat 4A. He had also had an opportunity between 27 July and early August 2008 to inspect Flats 5A and 6A. He claimed he had ruled out the water leakage at Flat 4A had come from Flat 6A because he had visited Flat 6A on 1 August and found the bathroom floor of Flat 6A to be dry. He had also checked the supply of potable water at Flat 6A and found there was no running water because the owners of Flat 6A had turned off the fresh water mains and the unit was vacant at the time. 33.He conducted a test on 29 July 2008 at Flat 4A by turning off the potable water supply to Flat 5A, he performed the same test again on 30 July 2008 when the management office accidently turned off the potable water supply at Flat 5A instead of the flush water supply and found water leakages had reduced, therefore, he concluded the cause of the water leakage into Flat 4A was due to the broken fresh water supply pipes concealed under the Flat 5A floor slab. Although he did not check under the floor boards of Flat 5A to see whether there was indeed an embedded fresh water supply pipe running from the guest bathroom to the kitchen, he based his claim from his experience as a plumber at Baguio Villa estate where many units had the same embedded fresh water pipes to supply hot water to the kitchen from the guest bathroom. He agreed the Defendant’s photographs showed an electric water heater inside a cupboard in the kitchen, but he claimed the electric water heater shown in the photograph was not in use because the electric power supply to the Baguio Villa units were insufficient to support the kitchen electric water heater and the air conditioners in the same property if they were used at the same time. 34.Mr. Man of Forewin Consultants prepared his report based on information given to him by Mr. Simon Chan and from his own observations on 14 August and 25 September 2008. He was not told that Mr. Chan had wrongly reported that instead of the fresh water supply it was the flush water supply at Flat 5A that was suspended during the daytime and the leakage at Flat 5A had immediately suspended on 7 August 2008. The same test to shut down the flush water supply to Unit A of the whole Block between 10 a.m. to 5 p.m. was repeated on 14 August 2008, the management office and Mr. Kam found the living room floor on Flat 5A had begun to dry up. When the flush water supply was turned on again, water started seeping into Flat 5A at 5:50 p.m. However, the leakage at 4A did not stop. Under cross-examination, Mr. Man admitted he was not aware until 5 to 7 July 2010 that there were fresh water pipes running along the external walls of Flat 5A or there was an electric water heater in the kitchen of Flat 5A. Analysis (1) Whether the water was leaking through the Defendant’s premises into the Plaintiff’s premises into the Plaintiff’s premises? 35.Based on the evidence adduced and from the experts’ report, the answer to this question must be yes. The next question is whether the water seepage was from the fresh water supply pipe embedded underneath the floor board of Flat 5A or was it from the flush water supply from Flat 6A running through Flat 5A into Flat 4A? As can be seen from the photographs and from the evidence of the witnesses, it is not disputed the floor of Flat 5A at the window and the corridor outside the guest bathroom was soaked with water. Water stains on the timber flooring can clearly be seen in the photographs. Mr. Leung, his plumber Mr. Chan and Mr. Kam all agreed the Flat 5A flooring around the living room and the corridor near the guest bathroom was wet with the timber flooring buckling. The Defendant’s expert Mr. Lau measured the wall partition at the guest bathroom, the living room and along the corridor, the moisture level was extremely high. The same level of moisture was found in the timber floor outside the guest bathroom along the corridor. The ceiling and walls at Flat 4A had begun to show signs of water seepage on 27 July 2008. The inference therefore is, the water seepage must have come through the Defendant’s premises. (2) Whether the Defendant’s negligence caused the water leakage? 36.Para. 20-135 and para. 20-136 of Clerk and Lindsell on Torts 20th ed. provided:-
Para. 20-138 further stated:
37.It is not possible to determine if the Defendant was negligent without identifying the cause of leakage. The Plaintiff claimed the Defendant had failed to maintain the fresh water supply pipe embedded in the floor slab between the guest bathroom and the kitchen at Flat 5A resulting in the leakage to Flat 4A. The experts agreed that fresh water supply pipes had been installed along the external walls of Flat 5A, they can be seen in the photographs produced. Mr. Kam did not agree there was a fresh water pipe embedded underneath the floor from the guest bathroom to the kitchen in Flat 5A. This claim of embedded fresh water pipe to supply hot water from the gas heater in the guest bathroom to the kitchen of Flat 5A had not been established. It was a bare assertion of Mr. Chan who claimed from his own experience as a plumber. The burden is on the Plaintiffs to show there was a leaking fresh water supply pipe buried underneath the floor boards of Flat 5A in July and August 2008. Furthermore, the independence of Mr. Chan has been challenged as he is related to the Plaintiff. Mr. Man’s expert evidence is also tainted by the faulty information given to him by Mr. Chan. 38.The management office incidents report recorded the water leakage into Flat 5A had ceased when the flush water supply in unit A of Block 22 was shut down on 7 August and 14 August 2008. Even though water leakage into Flat 4A had continued, it was indisputable that the leakage of water into Flat 5A had come to a halt and leakage reappeared 50 minutes after the flush water supply was turned back on. This indicated the leakage into Flat 5A came from the flush water supply system. Furthermore, when on 26 August 2008 upon the installation of a temporary valve at the flush water supply pipe of Flat 6A to shut down the supply, the water seepage problem at Flat 5A abated on the next day. The management office staff observed that on that day, water leakage into Flat 4A had also slowed down. The water leakage finally stopped in Flat 4A on 28 August 2008 the day after. The aforesaid phenomenon indicated the water leakage into Flat 5A was caused by the flush water pipe leakage at Flat 6A. The question that follows is, whether the Flat 6A flush water leakage was the sole cause of water seepage in Flat 4A? Unfortunately, with the limited and unsatisfactory expert information produced at trial and the failure to take extensive scientific tests and investigations for a full explanation on the cause or causes of the water leakage into Flat 4A, there is no clear answer. On this basis, and on the basis that after the Flat 6A flush water supply was shut down, no further leakages took place at Flat 4A, I am not satisfied the Plaintiffs have succeeded in proving the leakages at Flat 4A was caused by the Defendant’s negligence and that the accumulation of water on the floor of Flat 5A was due to a leaking fresh water pipe embedded on the floor of Flat 5A. Nor am I convinced that the Defendant was liable for causing a nuisance or annoyance to the Plaintiff in breach of clause 10(c) of the Deed of Mutual Covenant when the negligence of the Defendant is not proved. I am satisfied the Defendant had tried to locate the source of the leakage and had acted reasonably. 39.On the aforesaid basis, I dismissed the Plaintiffs’ claim against the Defendant. Costs 40.Costs to follow the event. I make a cost nisi order that the Plaintiff shall bear the costs of the Defendant to be taxed if not agreed with certificate for counsel. Should there be no cost application within 14 days hereof, the order will be made absolute.
Parties Miss Angel Mak instructed by Messrs. Chiu, Szeto & Cheng for the Plaintiffs. Miss Anna Ho instructed by Messrs. Rowdget W. Young & Co. for the Defendant. | ||||||||||||||||||||||||||||||||||||||||||||||||||||