TSANG SING HUNG AND ANOTHER v. SACK YU YEUNG AND ANOTHER

DCCJ1316/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1316 OF 2010

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JUDGMENT

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Introduction

1. This is a water leakage claim.  The1^stplaintiff was at the material times owner of Flat A, G/F, Pine Court, 16A Sycamore Street, Tai Kok Tsui, Kowloon (“Flat GA”).  The 2^nd plaintiff was the occupier of Flat GA at the material times.

2. The defendants were at the material times owners of Flat A, 1/F, Pine Court, 16A Sycamore Street, Tai Kok Tsui, Kowloon (“Flat 1A”).

3. The 1^st third party is the incorporated owners of Pine Court (the “IO”).  The 2^nd third party is a building contractor (“Cheung Lee”) and was engaged by the IO in December 2008 to carry out renovation work (the “Work”) for Pine Court (the “Building”).  The Work started on about 6 February 2009 and completed on about 18 June 2009.

4. The Work included replacing existing soil and waste and rainwater pipes on the external walls from ground floor to roof level of the Building. 

5. The plaintiffs claimed that since August 2009, water leaked from Flat 1A to Flat GA causing damage to Flat GA.

6. The plaintiffs issued the writ herein on 16 April 2010 with the statement of claim endorsed thereon.  The defendants filed their defence herein on 31 May 2010 and on the same day issued two third party notices against the IO and Cheung Lee respectively.  The plaintiffs filed their reply on 7 October 2010.

7. The IO filed its defence to the third party proceedings on 22 October 2010 and on the same day issued a notice of contribution/indemnity against Cheung Lee.  The defendants filed their reply to the IO’s defence on 17 November 2010.  The defendants’ claim against the IO was discontinued on 22 June 2011 by consent of the parties concerned.

8. On 8 July 2011, by consent of the parties concerned, the court ordered that the plaintiffs’ claim against the defendants be discontinued with no order as to costs between the plaintiffs and the defendants.

9. Cheung Lee filed its defence and counterclaim in the third party proceedings on 9 August 2011.  The defendants filed on 4 October 2011 their reply and defence to counterclaim to Cheung Lee’s defence and counterclaim.

10. At the pre-trial review held on 3 May 2013, I granted leave for Cheung Lee to discontinue its counterclaim against the defendants.

11. On 7 June 2013 I granted leave for the IO to withdraw its notice of contribution/indemnity against Cheung Lee by consent of the parties concerned.

12. At the trial, the only claim before me was the defendants’ claim against Cheung Lee under the third party notice issued on 31 May 2010 which had been amended on 11 January 2011 and re-amended on 4 June 2013 (the “3P Notice”).

13. Before I go into details of the defendants’ claim against Cheung Lee, I shall briefly set out the plaintiffs’ claim against the defendants to put the defendants’ claim against Cheung Lee in context. 

The claim of the plaintiffs against the defendants

14. The plaintiffs pleaded their claim as set out below in the statement of claim.

15. Since August 2009, water leakage and/or seepage and peel-off paint had been found to exist at the ceiling of a bedroom in Flat GA (the “Affected Room”) and water leakage was continuing.

16. The plaintiffs claimed that the defendants had carried out renovation work in 2005 (the “2005 Renovation”) to Flat 1A including changing a servant toilet into a bedroom with bathroom and toilet (the “Servant Room”).  The Servant Room was located above the Affected Room.

17. The plaintiffs complained to the Joint Office of the Building Department and the Food and Environmental Hygiene Department (the “Joint Office”).  The Joint Office carried out several tests at Flat 1A on about 20 August 2009 and on several occasions thereafter.  The Joint Office found water seeped from the balcony of Flat 1A (the “Balcony”) to the ceiling outside the kitchen of Flat GA.  A nuisance notice (dated 3 November 2009) (the “Nuisance Notice”) was issued on 6 November 2009 by the Joint Office to the defendants requiring the defendants to repair the Balcony.  On about 6 February 2010, the Joint Office inspected Flat 1A and found that repair work had been carried out to the Balcony.

18. The plaintiffs engaged iREC Infrared Engineering & Consultants Ltd (“iREC”) to perform inspections, testing and examinations at the Affected Room on 3 February 2010.  Stains, peel-off paint and thermal anomalies were found.  The plaintiffs averred that either the repair work to the Balcony was ineffective, unsuccessful or failed, or the source of water leaking into the ceiling of the Affected Room was not coming or originating from the Balcony.

19. The plaintiffs claimed that they had incurred $10,300 as repair costs and fees of iREC.

20. The plaintiffs sought injunctive relief and damages against the defendants.   

The claim of the defendants against Cheung Lee

21. In the 3P Notice, the defendants claimed repair costs to the Balcony in the sum of $4,308 and indemnity for damages payable to the plaintiffs including the aforesaid sum of $10,300 together with interest.  The defendants also claimed costs of both the defendants and the plaintiffs.

22. The only ground of the defendants’ claim against Cheung Lee as pleaded in the 3P Notice was that the poor workmanship of Cheung Lee had caused water leakage from the Balcony.

23. In their reply and defence to counterclaim to Cheung Lee’s defence and counterclaim, the defendants elaborated their claim against Cheung Lee.  The defendants pleaded, inter alia, that:

“16.1 … 就本案爭議的漏水問題是因第二第三方 [Cheung Lee] 在進行工程時，嚴重地破壞了第一及第二被人告 [sic] 露台 [the Balcony] 的地台及防水層；包括但不限於靠近原先兩個舊喉管及新造喉管位置附近的防水層，因此第二第三方需負責第一及第二被告人此訴訟的所有損失。”

“18. …被告人依據香港法例第337章民事責任 (分擔) 條例第3(4)條向第二第三方追討分擔被告人已支付第一及第二原告人，以及第一第三方的和解款項。”

“19.2 第二第三方作為維修工程承辦商，有一般謹慎責任不致使大廈內任何單位，因維修工程出現任何損毀。

19.3 第二第三方作出，或不作出以下行為，令被告人單位 [Flat 1A] 的露台損毀，致使原告人的單位 [Flat GA] 出現滲漏：

19.3.1 第二第三方沒有按原訂合約施工；

19.3.2 第二第三方在更改施工細則時沒有合理評估，或疏忽地進行評估；

19.3.3 第二第三方在施工時疏忽地損毀被告人單位的露台；及

19.3.4 第二第三方在損毀被告人單位的露台後沒有作有效的補救措施。

19.4 基於上述理由，第二第三方違反作為維修工程承辦商對被告人的一般謹慎責任。

19.5 由於第二第三方疏忽地令被告人單位的露台損毀，致使原告人的單位出現滲漏，被告人需向原告人支付和解款項。

19.6 被告人因此蒙受損失。”

The defendants’ case

24. The defendants in their defence admitted that they had carried out the 2005 Renovation to replace pipes in Flat 1A and that the Servant Room was above the Affected Room.  In the answer to request for further and better particulars of defence, the defendants provides particulars of the 2005 Renovation as follows (see p70 of the trial bundles):-

“a. 本人於2005於年8月入伙詩歌舞街16號松園1字樓A室 [Flat 1A] 前，曾進行室內裝修工程，裝修日期大約在2005年6月至7月期間，為期約1個月，裝修公司為『全港廚櫃』，地址為九龍旺角道6J號3號鋪 [sic] ，『全港廚櫃』現已結業。

b-c 工程範圍包括泥水、油漆，水電工程。松園1字樓A室之露台 [the Balcony] 面積約12平方英尺，約相等於12塊1尺乘1尺面積的磁磚，當時露台有進行鋪設磁磚工程，而鋪設磁磚工程並無進行鑿地工程。”

25. The defendants pleaded that when Cheung Lee carried out the Work at the Balcony, instead of replacing the existing pipes at their original locations, Cheung Lee relocated the pipes to other locations and damaged the tiles and surface of the Balcony.

26. Cheung Lee replaced the damaged floor tiles of the Balcony in April/May 2009 but the workmanship was unsatisfactory. Cheung Lee carried out further repair work to the floor of the Balcony on 5 December 2009 and 10 February 2010 but the workmanship was still poor.

27. On 20 December 2009, the defendants engaged a contractor called “Kie Kee Decoration Works” (“Kie Kee”) to paint a layer of waterproof materials on the surface of the Balcony.  On 6 March 2010, the defendants engaged Kie Kee to paint another layer of waterproof materials on the surface of the Balcony.  On 10 April 2010, the defendants engaged Kie Kee to lay an additional layer of floor tiles on top of the existing floor tiles of the Balcony with a layer of waterproof membrane in between.

28. The defendants pleaded that prior to the Work, they had not received any complaint on water leakage.  The defendants claimed that the water leakage from Flat 1A was caused by the Work. The defendants further claimed that the water leakage from Flat 1A to Flat GA was caused by Cheung Lee’s negligently carrying out the Work at the Balcony.

29. The defendants admitted the findings of the tests and reports of the Joint Office.

Cheung Lee’s case

30. Cheung Lee agreed that locations of the pipes had been changed.  It said that this was agreed by the parties to the contract, ie the IO and Cheung Lee.

31. Cheung Lee agreed that it had damaged the floor tiles of the Balcony but said that the damage was only minor damage to the surface of the tiles.  Cheung Lee confirmed that it had replaced six floor tiles at the Balcony for the defendants free of charges in April/May 2009 and had carried out further repair work to the floor of the Balcony in December 2009 and February 2010.  Cheung Lee denied poor workmanship.  Cheung Lee further denied that water leakage from Flat 1A was caused by its workmanship.

32. Cheung Lee denied that the water leakage from Flat 1A was caused by the Work executed by Cheung Lee at the Balcony.

Issues and evidence for the trial

33. At the beginning of these proceedings, the parties had disputes as to whether the tendering for the Work was in compliance of the provisions of the Building Management Ordinance (Cap 344) and whether the relocation of the pipes to different locations was in breach of the contract for the Work.  With the disputes between the plaintiffs and the defendants and the disputes between the defendants and the IO settled in the course of the proceedings, the aforesaid matters ceased to be relevant as they did not concern the defendants’ claim against Cheung Lee which was the only remaining matter outstanding at the trial.

34. Mr Chow, counsel for the defendants, submitted in his closing submissions that “the non compliance of s 20A, Building Management Ordinance, Chapter 344 and the failure to follow proper procedure for TP1 [the IO] to approve the change of pipe work are relevant to the issues of this case because those factors were important check and balance of the quality of the building work of TP2 [Cheung Lee].  It set the scene for this dispute in negligence.”  With respect, I do not agree.  I see no logical relation between procedure to approve contract and the alleged negligence on the part of Cheung Lee.  We are not here to review the system for approving contract nor are we concern with any system of check and balance.  At the trial, we were no longer concern with any alleged breach of duties (whether statutory, contractual or under common law) on the part of the IO. 

35. The issues for the trial were as follows:-

(1)  Whether the water leakage claimed by the plaintiffs came from the Balcony?

(2)  If so, whether it was caused by the Work?

(3)  If so, whether Cheung Lee was liable to the defendants’ claim?

(4)  If so, how much?

36. On 28 August 2012, the court granted leave for the defendants and Cheung Lee to adduce expert evidence on liability and quantum.  The number of expert was limited to one for each party.  The expert nominated by the defendants was Mr Patrick Lau Wing Wai (“D’s Expert”) and the expert nominated by Cheung Lee was Mr Dickie Lau Kam Sing (“CL’s Expert”).  The two experts had prepared a joint report dated 7 January 2013 (the “Joint Report”) (see pp 224-351 of the trial bundles) and a supplemental joint report dated 23 May 2013 (the “Supplemental Joint Report”) (see pp 1216-1222 of the trial bundles).

37. D’s Expert had previously prepared a report dated 23 March 2012 and CL’s Expert had previously prepared a report dated 17 October 2012.  I granted leave on 3 May 2013 for the parties to file and serve the aforesaid reports prepared separately by their experts.  Experts of both parties had testified at the trial.

38. Mr Sack Yu Yeung, the 1^st defendant, was the only factual witness testified at the trial for the defendants.

39. Cheung Lee called four factual witnesses to testified at the trial.  They were Mr曾建 (“KT”), Mr徐鏡華 (“WKT”), Mr Tsang Sing Fai, the 2^nd plaintiff (“P2”) and Mr徐彬 (“BT”).

The defendants’ factual evidence

40. The defendants’ only factual witness, the1^st defendant, signed a witness statement dated 24 December 2012 and two supplemental witness statements dated 3 May 2013 and 1 June 2013.  He adopted his said witness statement and supplemental witness statements as his evidence-in-chief at the trial.

41. The 1^st defendant recalled that Cheung Lee had replaced the pipes at the Balcony in March 2009. He set out his recollection of the events in his witness statement as follows:-

“8. 祥利 [Cheung Lee] 於2009年3月更換本人單位 [Flat 1A] 的露台 [the Balcony] 之污水喉及清水喉。當時，祥利的工人沒有在本人同意下更改污水喉及清水喉的位置，更將露台地面和磁磚弄毁，詳情如下：-

8.1 更換污水喉及清水喉工程時，祥利的工人清拆兩條舊喉管，把原有兩個位置封了，而兩個舊喉管分別位於廚房出露台方向的左右兩旁。

8.2 在廚房出露台方向靠右位置，鑿穿露台的地面，把1條新造污水連清水去水喉管由本人單位的露台貫穿至原告人單位 [Flat GA] 的露台的天花。

8.3 在更換喉管工程中，祥利工人需要把與喉管相連的地台鑿開。

8.4 上述新造污水連清水喉需穿過原告人單位露台的天花至地下，穿過的位置靠近原告人單位的睡房 [the Affected Room] 位置。”

42. The 1^st defendant stated that he complained to Cheung Lee about damage to the Balcony caused by Cheung Lee’s worker.  BT agreed to replace the damaged floor tiles at the Balcony for the defendants.  The 1^st defendant purchased replacement floor tiles at the cost of $126.  Cheung Lee’s worker carried out the replacement work on 5 April 2009 and May 2009.  The 1^st defendant said that wide gaps were left between tiles after Cheung Lee’s worker replaced the floor tiles of the Balcony.  He complained the same to P2 who was also the chairman of the IO at the material times.

43. The 1^st defendant stated that other than the Work done by Cheung Lee at the Balcony, the defendants had not carried out any work to the floor of the Balcony other than putting on floor tiles for good looking purpose as part of the 2005 Renovation. The 2005 Renovation did not require digging the floor slab of the Balcony.  The defendants had not received any complaint on water seepage from Flat 1A since the 1^st defendant’s family moved into Flat 1A in August 2005 until Cheung Lee carried out the Work.

44. In August 2009, P2 complained to the 1^st defendant that the Affected Room had water seepage.  The 1^st defendant told P2 that it might have been caused by the Work.  The 1^st defendant asked P2 to arrange for Cheung Lee to remedy.

45. After the plaintiffs complained to the Joint Office, the Joint Office carried out tests to the pipes at the Balcony as well as pipes at the shower area, toilet and kitchen of Flat 1A on 20 August 2009 but did not find any leakage.

46. The Joint Office engaged DCL Consultants Ltd (“DCL”) to carry out ponding tests on 21 September 2009 at the shower area of the Servant Room, the Balcony as well as the toilet and kitchen of Flat 1A.  DCL found water seeped from the Balcony to the outer-wall of the ceiling of the balcony of Flat GA which according to the building plan was the porch of Flat GA.  The Joint Office issued the Nuisance Notice to the defendants.

47. The 1^st defendant contacted the Joint Office by phone on 11 November 2009 and was told by a Miss 吳凱怡of the Building Department that the water seepage only concerned the floor of the Balcony and did not concern the kitchen, toilet and bathroom of Flat 1A.  He had also contacted a Mr 梁瑞輝of the Joint Office on 11 November 2009 to ask if the Joint Office would carry out tests to the fresh water pipes of Flat 1A but was told that it was not necessary.

48. On 5 December 2009, Cheung Lee sent worker to repair the gaps at the floor tiles at the left side of the Balcony but had not carried out any waterproofing work. 

49. On 20 December 2009, the 1^st defendant engaged Kie Kee to paint a layer of waterproofing materials at the surface of the floor of the Balcony.

50. On 6 February 2010, the Joint Office conducted further tests and still found water seepage at the Balcony.  On 10 February 2010, Cheung Lee sent worker to repair the gaps at the floor tiles at the right side of the Balcony.  Thereafter, Cheung Lee refused to do further repair to the Balcony.

51. On 6 March 2010, the 1^st defendant engaged Kie Kee to paint a further layer of waterproofing materials at the floor of the Balcony at the costs of $1,500.  On 10 April 2010, the 1^st defendant engaged Kie Kee to lay an additional layer of tiles on top of the existing tiles at the floor of the Balcony and installed a layer of waterproof membrane between the old tiles and the new tiles at the costs of $2,682.

52. The Joint Office conducted further tests on 12 May 2010 and confirmed in its letter dated 20 May 2010 that no further water seepage was found at the ceiling of Flat GA. (See p176 of the trial bundles)

53. The 1^st defendant referred to various opinions contained in letters issued by the Joint Office on the source of water seepage.  As no expert direction had been given by the court to admit the letters from the Joint Office as expert evidence and the authors of these letters had not attended the trial for cross-examination, I give little weight to such opinion evidence contained in the letters of the Joint Office.

54. Cheung Lee had previously engaged T&S Consulting Co (“T&S”) to prepare a report dated 4 September 2010.  The 1^st defendant said that T&S had never attended Flat 1A in preparing its report. 

55. The defendants settled with the plaintiffs on 27 June 2011 through mediation.  The defendants had paid $25,000 to the plaintiffs as settlement sum.

56. The defendants also settled with the IO and had paid $25,000 to the IO on 27 June 2011.

Cheung Lee’s factual evidence

57. Both P2 and BT signed their respective witness statements dated 23 December 2012.  Both KT and KWT signed their respective witness statements dated 9 May 2013.  All the factual witnesses of Cheung Lee adopted their respective witness statements as their evidence-in-chief at the trial.

58. KWT was the workman who carried out the Work at the Balcony.  KWT explained in his witness statement the reasons for changing the locations of the replacement pipes.

59. KWT recalled his work at Flat 1A as follows in his witness statement:-

“5. 在取得該大廈業主的同意後，本人便開始該大廈的喉管更換工程。由於該大廈之公共主喉管穿越各層之大廈外牆及露台，因此本人需於適當位置打鑿牆身以便更換公共喉管。本人記得曾於該大廈1字樓A室 [Flat 1A] ，即被告人單位〔下稱「被告人單位」〕的露台 [the Balcony]〔下稱「該露台」〕進行上述工程。為移除舊有的污水喉，它藏於露台地下，本人需把該喉管周圍貫通該露台地面的石屎鑿開，及後便把舊有的喉管移走，再裝上新的喉管。之後，本人便用英泥沙補回早前鑿走的石屎位置，再以防水膠漿固定補好英泥沙。

6. 另外，在本人鑿開該露台地面的石屎時，並沒有發現該露台的地台有任何防水層，而該露台的地面亦沒有任何防水膜或防水漆。

7. 另外，本人於該工程期間亦發現被告人單位的牆身亦有食水喉管。

8. 該項工程約於六個工作天後完成。本人在之後並未有再於該露台進行任何工作。”

60. KWT confirmed in cross examination that he had to dig opening at the floor of the Balcony in order to replace the old pipes and to seal the opening after putting in the new pipes.

61. KT was the workman who replaced the tiles at the Balcony.  He recalled his work at the Balcony as follows in his witness statement:-

“2. 約於2009年4月5日，本人受第二第三方 [Cheung Lee] 的工程主管徐彬先生 [BT] 的指示，到該大廈1字樓A室 [Flat 1A]〔下稱「被告人單位」〕的露台 [the Balcony]〔下稱「該露台」〕的地面更換約六塊磁磚。本人所得知需更換的原因為第一被告人聲稱第二第三方在進行大廈維修工程時破壞了該等磁磚，但是在本人更換磁磚前，本人發覺原本的磁磚只有輕微的被刮的表面花痕，並無明顯損壞。本人告知第一被告人，但他堅持要換。本人更換磁磚時，本人需把原先的磁磚片鑿出，亦盡量不會鑿到磁磚下的水泥，而所鑿之深度連磁磚片不會厚於13-15毫米，而無可避免需鑿走之水泥部份不會深於5毫米。

3. 本人在鑿走原有磁磚片時，並未有發覺該露台所被鑿之處有任何防水層或防水物料。

4. 由於第一被告人再度堅稱不滿意磁磚的鋪設，本人亦再分別約於2009年4月22日及5月應徐彬先生的指示，再度在該露台進行更換相同磁磚片的工作，而工作的工序亦和上述一樣。”

62. P2 in his witness statement confirmed the contracting arrangement for the Work between the IO and Cheung Lee as set out in BT’s witness statement.

63. P2 stated that in about August 2009, he discovered water seepage at the ceiling of the Affected Room.  He contacted the 1^st defendant and asked the 1^st defendant to repair Flat 1A.  The 1^st defendant suggested that P2 should complain the water leakage to the Joint Office which P2 did.

64. The Joint Office arranged to carry out water seepage tests at Flat GA and Flat 1A on 20 August 2009 and 21 September 2009 and issued the Nuisance Notice to the defendants.  On about 1 February 2010, P2 learned from the Joint Office that the defendants said that they had carried out repair work to the Balcony.  However, the water seepage problem at Flat GA remained.

65. P2 stated that by letters dated 4 and 26 January 2010, the 1^st defendant maintained that the source of water seepage came from the floor of the Balcony.  The 1^st defendant asked P2 to contact Cheung Lee to repair.

66. P2 had engaged iREC to carry out infrared test at the Affected Room on 3 February 2010.  Clear temperature differences were detected at the left corner of the ceiling.  Water mark was also visible.

67. P2 stated that the defendants had altered the internal of Flat 1A including changing the Servant Room to become a bathroom and the Servant Room was located above the Affected Room.

68. P2 confirmed in cross examination that there was no water leakage to Flat GA prior to August 2009.  P2 also confirmed that after the Joint Office’s inspection on 12 May 2010, he did not see further water seepage to Flat GA.

69. P2 included in his witness statement his various own opinions on the cause of water leakage into Flat GA. As P2 was Cheung Lee’s factual witness and he possessed no expertise in this area, I give no weight to P2’s opinion evidence which was subject of expert opinion. 

70. BT was the supervisor of Cheung Lee for the Work.  BT stated in para 3 of his witness statement particulars of the Work as follows:-

“當中維修工程包括外牆維修、批盪及油漆、樓梯天花和牆身油漆、更換天台至地下污水喉、加裝冷氣機集水喉、加裝大廈沖廁喉系統、更換樓梯燈、更換大廈地渠和鋪設天面防水層工程。”

71. BT stated in para 6 of his witness statement that he and KWT had attended a meeting with the IO on 4 February 2009 and made the following proposal which was accepted by the management committee of the IO:-

“徐先生 [KWT] 於會議中建議為符合法例要求，在施工時將原有的氣喉與污水喉的位置互調，並將原有於各層露臺左右兩側的污水喉合併並接入。”

72. In mid March 2009, BT received a phone call from the 1^st defendant complaining that Cheung Lee in carrying out the Work had damaged the surface of the floor tiles of the Balcony. With the consent of Cheung Lee, BT arranged for KT to replace the floor tiles of the Balcony on 5 April 2009.  The replacement floor tiles were provided by the 1^st defendant.  However, the 1^st defendant was still not satisfied.  BT arranged for KT to replace floor tiles of the Balcony again on 22 April 2009 and also in May 2009.  BT said that the floor tiles were only slightly damaged at the surface.

73. The Work was completed on 18 June 2009.  BT and Cheung Lee did not receive any complaint on water leakage before completion of the Work.

74. In about November 2009, BT received phone call from the 1^st defendant saying that he had received complaint from P2 on water leaking to the ceiling of the Affected Room.  The 1^st defendant told BT that the report of the Joint Office showed that the source of the water leakage came from the Balcony.  The 1^st defendant requested Cheung Lee to inspect and repair.

75. BT said that he went to Flat 1A on 5 December 2009 to inspect.  BT did not agree that the Work caused water leakage from the Balcony to the ceiling of the Affected Room.  Nevertheless, BT arranged for KT to repair the floor tiles of the Balcony again.

76. BT said that he learned from the 1^st defendant that the Balcony had been renovated several times.  The 1^st defendant had not carried out any waterproofing work when the Balcony was renovated and had not previously carried out any water leakage test before receiving complaint from the plaintiffs.

77. On about 26 January 2010, Cheung Lee received demand letter from the defendants.  Cheung Lee engaged T&S to conduct infrared survey at Flat GA.  T&S issued its report on 4 September 2010.

78. BT referred to various opinions stated in the aforesaid report of T&S and BT also stated in his witness statement his various own opinions on the cause of water leakage into Flat GA. As no expert direction had been granted in respect of the report issued by T&S and BT was Cheung Lee’s factual witness, I give no weight to BT’s opinion evidence which was subject of expert opinion. 

Tests and results

79. In the reports of D’s Expert and CL’s Expert, they referred to reports prepared by others including reports prepared by DCL, the contractor engaged by the Joint Office; report prepared by T&S, the surveyor previously engaged by Cheung Lee; and report prepared by iREC, the surveyor engaged by the plaintiffs.  I shall briefly set out below the contents of these other reports.

Tests and inspections by the Joint Office and DCL

80. DCL had carried out inspections and tests to Flat 1A and Flat GA on 14 September 2009, 21 September 2009, 6 February 2010 and 9 March 2010.  DCL had issued two reports.  (See pp 240-299 of the trial bundles)

81. In its first report (see pp 240-272 of the trial bundles), DCL reported that it had inspected Flat GA on 14 September 2009 and had inspected both Flat GA and Flat 1A on 21 September 2009 to conduct visual inspection, moisture content checking, ponding test and spray water test.

82. DCL reported that damp patch was noted at the ceiling of a bedroom in Flat GA at the inspection on 14 September 2009.  The moisture content checking using moisture meter showed that the moisture content of the damp patch area ranged from 58.8 to 91.9 when the moisture content of the wall of the bedroom ranged from 11.4 to 16.2. 

83. The moisture content checking on 21 September 2009 showed that the moisture content of the damp patch area before the ponding/spray tests ranged from 69.9 to 82.9 when the moisture content of the wall of the bedroom ranged from 10.8 to 11.7.  Measures taken five minutes after the ponding/spray tests showed that the moisture content at the damp patch area dropped to 53.2 to 76.9.  No dripping was found.

84. Ponding tests for one hour were carried out by DCL at the Balcony as well as the bathroom in the Servant Room and the kitchen of Flat 1A on 21 September 2009.  Spray water test was carried out at the shower tray in the Servant Room on the same day.  Reddish colour of Acid Red 52 (the dye used for ponding test at the Balcony) was found at the ceiling of balcony of Flat GA (ie the area outside the kitchen of Flat GA) on the same day but no fluorescent effect was found under UV light.

85. DCL also reported in its first report that ENI (Environmental Nuisance Investigator) of FEHD (the Food and Environmental Hygiene Department) had carried out CWT (colour water test) to the drainage of Flat 1A on 20 August 2009.  The tests cover drainage of the toilet, basin, floor drain, washing machine and shower tray at the bathroom.  The tests did not reveal water seepage.

86. The Food and Environmental Hygiene Department issued the Nuisance Notice in the following terms to the defendants (see pp 149-152 of the trial bundles):-

“… the Director of Food and Environmental Hygiene being satisfied of the existence at 1^st Floor, Pine Court, No. 16A Sycamore Street, Kowloon [Flat 1A] of a nuisance, being water seepage through the floor slab of the balcony in the afore-said premises [the Balcony] to the external wall of the premises below at Ground Floor, Pine Court, No. 16A Sycamore Street, Kowloon [Flat GA] and such seepage has rendered the said premises below in such a state as to be a nuisance, do hereby require you, within 21 days from the service of this notice, to abate the nuisance, and for that purpose to repair satisfactorily the floor slab of the balcony at 1^st Floor, Pine Court, No. 16A Sycamore Street, Kowloon by suitably maintaining and providing properly well-protected water-proofing material to the floor slab of the balcony to prevent water seepage to the premises below at Ground Floor, Pine Court, No. 16A Sycamore Street, Kowloon.”

87. DCL issued its 2^nd report in respect of inspection and test conducted on 6 February 2010 and 9 March 2010 (see pp 273-299 of the trial bundles).

88. DCL inspected both Flat GA and Flat 1A on 6 February 2010.  DCL conducted moisture content checking at the Affected Room and ponding test at the Balcony for one hour.

89. DCL inspected Flat GA again on 9 March 2010.  Damp patch was noted at the ceiling of the Affected Room.  DCL found at the ceiling of the Affected Room fluorescent effect of the dye used in the ponding test on 6 February 2010 but no water dripping was found.

90. On 12 May 2010, the Joint Office carried out measurement of humidity at the ceiling of Flat GA and confirmed no water leakage (see p176 of the trial bundles).

91. Mr Siu, counsel for Cheung Lee, submitted that the 1^st report of DCL was irrelevant as it referred to reddish colour found at the “ceiling of balcony of affected area” which should be the soffit of the Balcony and not the ceiling of the Affected Room.

92. I accept that the ponding test conducted by DCL on 21 September 2009 did not show water seepage to the Affected Room.  However, the water seepage to the soffit of the Balcony (which was the ceiling outside the kitchen of Flat GA) was not irrelevant.  The plaintiffs claimed in para 21 of the statement of claim that the defendants negligently and in breach of their duty of care allowed water to leak from Flat 1A into Flat GA.  In para 25 of the statement of claim, the plaintiffs set out their loss and damages as result of the defendants’ negligence and/or breach of duties.  The loss and damages pleaded by the plaintiffs in para 25 of the statement of claim included repair costs in repairing and cleaning of the ceiling outside the kitchen of Flat GA.  The 1^st report of DCL was of course relevant to the plaintiffs’ claim against the defendants.  Mr Siu’s criticism of D’s Expert’s agreeing to the 1^st report of DCL as “nothing but Mr Lau’s [D’s Expert’s] readiness to jump to the conclusion that TP2 [Cheung Lee] caused the Leakage Problem, when the 1^st DCL Report did not even identify the Leakage Problem in the Kid’s Room” (see para 23 of Mr Siu’s closing submissions) was unfounded.

93. Mr Siu commented that the 2^nd report of DCL merely stated that fluorescent effect was found at the ceiling of the Affected Room.  In the version of the report made available by the Joint Office, it could not be told where exactly the effect was found.  He submitted that DCL might not be referring to the area under the plaintiffs’ complaint.

94. Section 2.1 of the 2^nd report of DCL specified that the affected area where sign of water seepage found was at the “Ceiling of bedroom”.  The Joint Office conducted the investigation upon the plaintiffs’ complaint of water seepage at the Affected Room.  Mr Siu did not dispute that the bedroom referred to in the 2^nd report of DCL was the Affected Room (ie the Kid’s Room referred to in his submissions).  I am satisfied that the “bedroom” referred to in the report of DCL was the Affected Room.

95. DCL also stated in section 1 of “Appendix I of Proforma WS2” attached to the report that “Damp patch was noted at the ceiling of the bedroom”.  After ponding test on 6 February 2010, DCL reported in section 3 of “Appendix I of Proforma WS2” that “Fluorescent effect of FS [the dye used at the ponding test] was found at ceiling of bedroom on 09/03/2010”.  In the same section 3 DCL made the same remark that “Damp patch was noted at the ceiling of the bedroom”.  I am of the view that the remark in section 1 was from observation on 6 February 2010 and the remarks in section 3 were from observation on 9 March 2010, otherwise it made no sense to repeat the same remark twice in the same appendix.  I am also of the view that the “bedroom” referred to was the same “bedroom”, ie the Affected Room.

96. DCL all along referred to a single “damp patch”.  I have no doubt that DCL was referring to the same spot of the same ceiling in the same bedroom, otherwise DCL would not have concluded in part B of section C of the report that “Floor leakage of balcony at the suspected premises is likely a possible source of seepage.”

97. My aforesaid view was also supported by the case pleaded by the plaintiffs.  The plaintiffs pleaded in para 17 of the statement of claim that they had on 3 February 2010 engaged iREC to perform inspections, testing and examinations in the Affected Room.  The report produced by iREC stated in section 7.1.1 that visual observation found stains of “approx. 0.6m x 1.0m” in the Affected Room.  The report of iREC also suggested that there was only one area in the Affected Room suffering water seepage.

98. Despite his hard efforts, I do not find that Mr Siu had made out his case.  I find that the location at which fluorescent effect was found on 9 March 2010 by DCL was the location of water seepage in the Affected Room claimed by the plaintiffs.

99. Mr Siu stated that P2’s evidence was that when the water seepage got most serious in January 2010, there was water dripping from the ceiling.  However, the 2^nd report of DCL found that there was no water dripping during their inspection in March 2010. Mr Siu submitted that this reinforced his contention that the 2^nd report of DCL might not be referred to the water seepage complained by the plaintiffs.

100. In making the above submission, Mr Siu was comparing situation in January 2010 with situation in March 2010 without other material information such as weather conditions at the material times being made available.

101. As Mr Siu had also relied on this piece of “water dripping” evidence of P2 in support of his other contentions, I shall briefly discuss this piece of evidence of P2 here so that I need not repeat myself when I deal with Mr Siu’s other submissions relying on such evidence of P2.

102. Mr Siu submitted that P2’s unchallenged evidence was that there was water dripping from the ceiling of the Affected Room in January 2010.  This piece of evidence was given by P2 at the trial.  It was neither pleaded in the plaintiffs’ pleadings (both statement of claim and reply) nor mentioned in P2’s witness statement.  This was also not supported by the inspection reports prepared by iREC engaged by the plaintiffs.

103. The report prepared by iREC after their inspection on 3 February 2010 (ie just a few days after January 2010) did not mention water dripping.  They only observed stains and peel-off paint.  The moisture measurement at various spots at the affected area of the ceiling of the Affected Room ranged from 37.4% to 44.5%.  Such moisture measurement did not support the phenomenon of water dripping.  In para 8.1 of its report, iREC stated that “Water leakage signs (dampness, stain and peel-off paint) were found on the ceiling [of the Affected Room] above timber cabinet and the far left corner of the window.”  If there was water dripping, it would not have escaped the attention of the inspector of iREC who was engaged to deal with a water leakage problem.  

104. P2’s evidence on water dripping in January 2010 was unsupported bare assertion made in the witness box.  Such evidence though unchallenged had to be viewed with caution and would not be accepted at its face value.

Inspection and report of T&S

105. Cheung Lee had engaged T&S to conduct a visual inspection at Flat GA on 4 September 2010.  T&S issued its report dated 10 September 2010 (see pp 301-313 of the trial bundles).

106. T&S observed water seepage at the ceiling of the Affected Room.  T&S reported that the ceiling of the Affected Room was higher than the soffit of the Balcony in 75 mm by site measurement and no water seepage was observed at the wall of the Affected Room adjoining the Balcony.  T&S further reported that the water seepage was in dry condition and paint peeling off was observed.  No other water seepage was found inside Flat GA.  T&S reached the following conclusion in its report:-

“According to our finding at site inspection, it is found that this is the sign of long term leakage at the ceiling of Bedroom 3 [the Affected Room]. The hidden defect of existing waterproofing layer at balcony and concealed water pipe in the bathroom [of the Servant Room] above the Bedroom 3 may cause the water leakage such as leaking of water pipe, failure of waterproofing layer and poor quality of concrete structure. On the other hand, the soffit level of balcony [of Flat 1A] is lowed down 75mm from the ceiling of Bedroom 3 at our inspection. It can be observed that it is impossible to allow the water leaking through the structure up to more than 75 mm to the ceiling of Bedroom 3.”

107. For the following reasons, I give little weight to the aforesaid opinion of T&S:-

(1) no expert direction had been granted in respect of the aforesaid report of T&S;

(2) the visual inspection was conducted on 4 September 2010, ie almost four months after the Joint Office’s inspection on 12 May 2010 which confirmed that water seepage at Flat GA had ceased.  The report of T&S also stated that the water seepage was in dry condition; 

(3) the author of the report, a Mr Li Chi Wa, had not attended the trial for cross-examination;

(4) the report stated that it was impossible to allow water leaking through the structure up to more than 75mm from the soffit of the Balcony to the ceiling of the Affected Room.  The author assumed that water leaked from the surface of the Balcony would travel vertically down to the soffit of the Balcony and then horizontally towards the ceiling of the Affected Room.  Assuming that the soffit of the balcony was 75mm lower than the ceiling of the Affected Room, the author of the report had not considered the possibility of water travelling diagonally from the surface of the Balcony to the ceiling of the Affected Room; and 

(5) the conclusion stated in the report was mere speculation.  It concluded “hidden defect of existing waterproofing layer” at the Balcony and “concealed water pipe in the bathroom” of the Servant Room above the Affected Room as causes of water leakage.  I do not see how visual inspection could see “hidden defect” and “concealed water pipe”.

108. I see little probative (if not nil) value in the opinion expressed by T&S in its report.

Inspection and report of iREC

109. The parties had also produced a report dated 11 February 2010 issued by iREC (see pp 315-341 of the trial bundles).  iREC was an expert engaged by the plaintiffs to carry out infrared thermography investigation at Flat GA on 3 February 2010.

110. iREC reported stains and peel-off paint in the Affected Room.  It also reported thermal anomalies at the ceiling of the Affected Room.  It concluded that water leakage signs (dampness, stain and peel-off paint) were found on the ceiling above timber cabinet and the far left corner of the window.

111. I do not find the report of iREC helpful in assisting this court to determine the issues in dispute between the defendants and Cheung Lee.  As explained in para 2 of the report of iREC, infrared thermography investigation could identify water seepage and moisture trapping by analyzing the thermal data of the inspected surfaces.  It could not tell the source of the water or moisture found.  The defendants and Cheung Lee did not have serious dispute on the fact that there was water seepage into the Affected Room.  The issue in dispute was where did the water come from?  The report of iREC shed no light on this issue.  I give little weight to the report of iREC.  

Evidence of D’s Expert and CL’s Expert

112. Both experts of the defendants and Cheung Lee confirmed in the Supplemental Joint Report that water leakage to Flat GA had already ceased at their last inspection on 3 October 2012.

The defendants’ expert evidence

113. D’s Expert relied on the result of tests conducted by DCL to support his opinion that the water seepage problem was due to the failure of the waterproofing system of the Balcony that was affected by the poor workmanship of Cheung Lee in executing the Work.

114. D’s Expert had inspected Flat 1A but not Flat GA on 25 February 2012 and issued a report dated 23 March 2012 (the “LWW Report”) (see pp 180-351 of the trial bundles).  It was stated in the LWW Report that:-

“4.1 The assessment is based on the approved building plans, the design and layout of the Building and the visual site inspection of the internal areas of the Subject Property [Flat 1A] and the test reports prepared by JO [the Joint Office].”

“6.6 I am of the opinion that the water seepage problem was not due to the seepage in the new Bathroom [in the Servant Room] or Kitchen but due to the failure of the waterproofing system of the small balcony [the Balcony] of the Subject Property that was affected by poor workmanship of Cheung Lee in the pipes replacement works [the Work]. My opinion can be supported by the dye tests conducted by JO in two occasions in September 2009 and February 2010.

6.7 The seepage problem was brought to JO where two reports were produced, one for the tests in September 2009 and one in February/March 2010.  The two reports conclude that the water seepage in the Adjoining Property [Flat GA] is due to failure of the waterproofing system of the small balcony of the Subject Property.”

115. D’s Expert confirmed that there were alterations to the original layout of Flat 1A.  He set out the alterations at para 5.1.1 of the LWW Report as follows:-

“The original Servant Room and Guest Lavatory is combined to form a new Bathroom with a new shower tray and wash hand basin whilst the original wc remains at the same location in the new Bathroom. Part of the Servant Room is changed to the new Store. Part of the enclosure walls of the original Kitchen are tapered with the location of door opening changed.”

116. D’s Expert expressed his following views on the water seepage complained by the plaintiffs in the LWW Report:-

(1) the change in the locations of replacement pipes rendered the integrity of the waterproofing of the Balcony affected and resurfacing of the waterproofing system was required; (para 5.2.1)

(2) the water seepage inside the Affected Room due to the new bathroom of Flat 1A was not likely as the new bathroom was completed a few years ago.  Negative dye tests of the floor of the new bathroom and kitchen of Flat 1A by the Joint Office confirmed that the water seepage did not come from the new bathroom and kitchen of Flat 1A; (para 5.2.2)

(3) the change in the routing of the new replaced pipes and partly embedded pipes by Cheung Lee would have inevitably affected the integrity of the waterproofing system of the Balcony. No new waterproofing or non-performing waterproofing works done by Cheung Lee would have caused water seepage from the Balcony to the Affected Room; (para 5.2.3) and

(4) the substandard waterproofing system of the Balcony done by Cheung Lee causing the water seepage in Flat GA could be supported by the proper waterproofing system and good floor tile workmanship done by the contractor appointed by the defendants later that stopped further water seepage problem in Flat GA. (para 5.2.4)

117. D’s Expert had considered the two reports of DCL provided by the Joint Office.  He agreed with the conclusion of the Joint Office that the water seepage problem in Flat GA was due to the failure of the waterproofing system of the Balcony.

118. D’s Expert inspected Flat 1A and Flat GA jointly with CL’s Expert on 3 October 2012.

119. After the joint inspection, D’s Expert maintained his views as set out in the LWW Report as aforesaid.  When D’s Expert testified at the trial, he explained that digging opening at the floor of the Balcony might create cracks in the concrete of the floor slab.  After replacing the pipes, Cheung Lee should have properly sealed the openings to ensure no water leakage.  From the dye tests conducted by DCL which showed that water seeped from the Balcony to the Affected Room, D’s Expert concluded that the openings had not been properly sealed after the pipe work.

120. D’s Expert referred to the building plan to confirm to the court that the surface of the Balcony was above the ceiling of the Affected Room.  In para 6.9 of the LWW Report, D’s Expert stated that:-

“T&S report covers the visual inspection of the Adjoining Property [Flat GA] on 10 September 2010 by an unknown personnel. I agree to T&S report concluding the water seepage problem on the ceiling of Bedroom 3 (Kid’s Room) [the Affected Room] is due to the failure of waterproofing system of the small balcony of the Subject Property [the Balcony]. I cannot agree with the conclusion in T&S report that the soffit level of (small) balcony (of the Subject Property [Flat 1A]) is lowed down 75 mm from the ceiling of Bedroom 3 … it is impossible to allow the water leaking through the structure up to more than 75 mm to the ceiling of Bedroom 3. The surface of the floor tiles, the floor slab of the small balcony and the underside of the ceiling slab of space beneath the small balcony of the Subject Property cannot be lower than that of the ceiling of the Bedroom 3 of the Adjoining Property, as shown on the approved building plans. Water seepage from the small balcony of the Subject Property can transmit to the ceiling of the Bedroom 3 without passing through the soffit concerned.”

121. I have discussed the point on soffit level of the Balcony raised in the report of T&S in the earlier part of this judgment. (See paras 106-107 above)  I do not propose to repeat myself here.  I accept D’s Expert’s evidence on the level of the surface of the Balcony.  I only need to point out that water travelled from the surface (instead of the soffit) of the Balcony to the ceiling of the Affected Room.

122. D’s Expert also explained that waterproofing system could be in the form for a waterproofing layer or membrane which would be more visible.  It could also be adding waterproofing adhesive materials in the form of additive to the cement which was less apparent.

Cheung Lee’s expert evidence

123. CL’s Expert issued a report dated 17 October 2012 (the “LKS Report”) (see pp 1020-1213 of the trial bundles) based on visual inspections conducted at Flat GA and Flat 1A on 8 May 2012 and 3 October 2012.

124. On 8 May 2012, CL’s Expert sent his assistant, a Mr Tam, to inspect Flat GA and the external area below the Balcony. Mr Tam observed water stain at the ceiling of the Affected Room.  From the photographs taken by Mr Tam, CL’s Expert estimated that the water seepage had been developed for at least over two years.  CL’s Expert agreed under cross examination that when he inspected Flat GA on 3 October 2012, the ceiling of the Affected Room had already been re-painted and he did not see the stain.  He said that he could estimate the age of the stain from the photographs because he could distinguish old stain from new stain and he was told that the leakage occurred in 2009 whereas the photographs were taken in 2012.

125. On 3 October 2012, CL’s Expert inspected both Flat GA and Flat 1A together with D’s Expert.  In para 3.0 of the LSK Report, CL’s Expert had the following observation:-

“Compared with the approved plan, it was observed that the lavatory adjoining kitchen [at Flat 1A] had been enlarged into the servant room forming shower tray and wash basin area. Part of the servant room has been altered to toilet for shower tray and was [sic] basin use. The water seepage area of G/F [Flat GA] was located immediately above the extra-added shower tray area. The iREC’s moisture measurement record also revealed that the ceiling soffit immediately under 1/F [Flat 1A] shower tray area had relatively higher moisture content (around 37.5% - 44.5%), so we considered defective waterproofing membrane and possible leakage of concealed drain outlet pipe of shower was main causes of water seepage to G/F.”

126. CL’s Expert concluded in para 4.0 of the LKS Report that:-

“The reasons of water seepage were as follows:-

i) The lavatory of 1/F Pine Court [Flat 1A] was enlarged and part of servant room was converted to shower tray and wash basin area prior to the commencement of renovation works;

ii) Defective waterproofing membrane of the shower tray at the original servant room of 1/F Pine Court above G/F servant room and possible water leakage of concealed drain outlet pipe of shower tray are main causes of water seepage to G/F;

iii) It was noted that the floor slab soffit level of balcony was 75mm below the ceiling soffit level of adjoining servant room, therefore it is physically impossible to allow water leakage through the balcony floor slab soffit level to the ceiling soffit level of servant room.”

127. CL’s Expert maintained the same views in the Joint Report when he stated in para 7.0(C) of the Joint Report that:-

“(i) Defective waterproofing membrane of shower tray and/or leakage of concealed drainage outlet pipe of shower tray causing Defects. According to water seepage area and pattern from WG’s visual inspection [CL’s Expert was the Managing Director of WG which issued the LKS Report], the Defects were developed over a long period of time, well before renovation work commenced by 2^nd Third Party [Cheung Lee]. It could be almost concluded that the main source of Defects was directly related to the area immediately below the shower tray with either defective waterproofing membrane, or leakage of concealed drainage outlet pipe, or both.

(ii) Water seepage area with obvious water stain was noted at the ceiling of the servant room of the Plaintiff’s Premises [Flat GA] on 8 May 2012 with photo record on page 3 of WG Survey Report [the LKS Report].  The ceiling soffit surface was subsequently repaired by the Plaintiff at his own expenses.  WG Survey Report considered that the moisture measurement conducted by iREC was carried out in formal manner according to the standard laboratory practice, and the measurement results revealed that the ceiling soffit of the servant room of the Plaintiff’s Premises contained relatively higher moisture content (around 37.5% - 44.5%) than under normal condition.”

128. CL’s Expert agreed that the opening at the floor of the Balcony had to be enlarged to enable the new bigger pipe to go through and that if the opening was not properly sealed, water could seep through the edge of the pipe.

Discussion on expert evidence

129. The fact that there was water seepage to Flat GA was not in dispute.  P2’s evidence was that he discovered the water seepage in about August 2009.  This was also not disputed by the defendants and Cheung Lee.  The letter dated 20 May 2010 from the Joint Office to the 1^st defendant suggested that the water seepage had ceased by 12 May 2010.  No evidence to the contrary had been adduced at the trial.  P2’ evidence was that he did not see further water seepage to Flat GA after the Joint Office’s inspection on 12 May 2010.

130. T&S instructed by Cheung Lee to inspect Flat GA on 4 September 2010 reported that the water seepage found inside Flat GA was in dry condition. 

131. The experts of the defendants and Cheung Lee had in the Supplemental Joint Report confirmed that when they inspected Flat GA on 3 October 2012, the water leakage to Flat GA had already stopped.  D’s Expert had not inspected Flat GA prior to 3 October 2012.  CL’s Expert’s assistant had inspected Flat GA prior to 3 October 2012 on 8 May 2012.  CL’s Expert observed water stain at the ceiling of the Affected Room from photographs taken by his assistant at Flat GA on 8 May 2012.  CL’s Expert did not say whether water was still seeping to Flat GA as at 8 May 2012 but he agreed when giving evidence at the trial that the stain was old stain.

132. The plaintiffs had discontinued their claim against the defendants on 8 July 2011.  The 1^st defendant confirmed in his 2^nd supplemental witness statement dated 1 June 2013 that the defendants had settled with the plaintiffs on 27 June 2011 through mediation by agreeing to pay $25,000 to the plaintiffs.  If the problem of water seepage was still subsisting, I do not think that the plaintiffs would agree to settle with the defendants on the terms reported by the 1^st defendant.

133. I find that the water seepage to Flat GA had ceased by 12 May 2010.  Water seepage to Flat GA had long ceased before any of the experts of the defendants and Cheung Lee inspected the property.  In such case, it was not feasible for the experts to conduct any tests to trace the source of the water seepage complained by the plaintiffs which was already a historical event by the time of their engagement.  They had to work on available records to form their views.  This was obviously not an easy task and it was understandable that they might be unable to form their views on a particular issue because of limited available information.  If they tried to express their views on issues lacking supporting evidence, it would only amount to speculation of no assistance to this court.

134. When I consider the expert evidence adduced before me, I have to bear in mind the aforesaid limitations restraining the experts in this case.

135. Mr Siu commented that D’s Expert was biased.  Mr Siu said that D’s Expert’s report was tainted with his biased position and should be rejected by the court.  Mr Siu commented that D’s Expert started off with the assumption that Cheung Lee caused the water seepage claimed by the plaintiffs and then attempted to verify this assumption.  Mr Siu referred to the following paragraph in the LWW Report to substantiate his contention:-

“1.2 The purpose of this report is to verify whether the reported damages in the Adjoining Property [Flat GA] that the Client [the defendants] has settled with the owner(s) of G/F [the plaintiffs] is related to the works done by the Renovation Contractor [Cheung Lee] and commenting the JO [the Joint Office] reports, T&S report and iREC report.”

136. Mr Siu said that the 2005 Renovation was an issue in dispute at the very early stage of this action.  He criticized D’s Expert for not seeing fit to state that it would also be necessary to verify whether the 2005 Renovation caused the water seepage claimed by the plaintiffs.

137. D’s Expert prepared the LWW Report on 23 March 2012, ie after the defendants had settled with the plaintiffs in June 2011 but before expert directions were given by the court on 28 August 2012.  D’s Expert prepared the LWW Report upon instructions from the defendants for the defendants’ claim against Cheung Lee.  The purpose for the defendants to engage D’s Expert to prepare the LWW Report was to ascertain whether they had valid claims against Cheung Lee.  The passage in the LWW Report cited by Mr Siu simply set out instructions received by D’s Expert.  When the court gave directions for expert evidence on 28 August 2012, the issues identified for the experts were:-

(1) cause of the water seepage on the plaintiffs’ premises, whether caused by the negligent act(s) of the defendants or Cheung Lee; and

(2) quantum of damages suffered by the defendants, as a result of the said water seepage (if any).  

138. In the Joint Report, the experts of the parties considered both the 2005 Renovation and the Work.  Mr Siu fairly pointed out that under cross examination D’s Expert had said that he would consider all possibilities and eliminate the other improbable causes.  It is unfair to accuse D’s Expert of being biased relying on the aforesaid passage in the LWW Report.  I reject this contention of Mr Siu.

139. Mr Siu pointed out that D’s Expert relied heavily on the reports issued by DCL.  He took no issue on the admissibility of DCL’s repots but commented that: (1) these reports were not prepared for the purpose of this action; (2) it was not known who from DCL prepared the reports and the experience and qualifications of that person(s); and (3) the authors of the reports were not available for cross-examination at the trial.  He submitted that the court should give less weight to these reports. (See para 26 of Mr Siu’s opening submissions)

140. Mr Chow submitted that the defendants had served on Cheung Lee, pursuant to the Evidence Ordinance (Cap 8) a hearsay notice in relation to the DCL reports.  No application was made by Cheung Lee to the court requiring the authors of the reports to attend the trial for cross-examination.

141. No expert directions had been given by the court to admit DCL’s reports as expert evidence.  They were admissible to the extent of factual matters stated therein.  Weight attached to these reports should be assessed in accordance with the statutory guidelines set out in section 49 of the Evidence Ordinance.  However, expert opinions of D’s Expert and CL’s Expert on matters contained in DCL’s reports were admissible.

142. Mr Siu criticized D’s Expert’s reliance on the observations of the tests done by DCL to conclude that the source of water seepage claimed by the plaintiffs was the Balcony when D’s Expert agreed that:-

(1) he did not know who from DCL conducted the tests, and the qualifications of such persons;

(2) he did not see how the tests were conducted, and the photographs attached to the reports of DCL could not comprehensively show how the tests were conducted; and

(3) he could only guess that the relevant person has conducted the tests in accordance with the guideline and the requisite procedures.

143. Mr Siu commented that D’s Expert’s trust and confidence on the DCL personnel was unwarranted.  Mr Siu referred to the following “indisputable errors” (see para 17 of Mr Siu’s closing submissions) in the 1^st report of DCL:-

(1) the sketches attached to the 1^st report of DCL (pp 252-253 of the trial bundles) did not accurately show the layout of Flat 1A; and

(2) while DCL found reddish color at the ceiling outside the kitchen of Flat GA, they could not find the fluorescent effect under UV light.

144. Mr Siu submitted that given the limitations and defects with the reports of DCL, D’s Expert’s heavy reliance on them was misplaced and undue.  D’s Expert’s conclusion should also be viewed with caution.

145. DCL was engaged by the Joint Office.  D’s Expert explained under cross examination that tests by contractors engaged by the Joint Office were carried out by qualified person and the reports were signed by building professional.  The contractors were supervised by personnel of the Joint Office who were also building professional.  There were established procedure and guidelines for these tests.  D’s Expert said that he had no grounds to query the reports of DCL.

146. I shall later deal with the issue of “no fluorescent effect” found on 21 September 2009. (See paras 163-164 below)  Suffice it to say that DCL made no error in this respect.

147. For the layout sketches attached to the 1^st report of DCL, they were there to indicate the locations where photographs referred to in the report were taken.  Layout of the premises was not the main concern of these sketches.  I do not see that the inaccuracy of the layout sketches goes anywhere near the issue of trust and confidence.  I do not accept Mr Siu’s said contention.

148. CL’s Expert’s opinion as stated in para 7.0(C) of the Joint Report was that the water seepage complained by the plaintiffs had been developed over a long period of time, well before the commencement of the Work.

149. CL’s Expert admitted that he had not inspected Flat GA prior to 3 October 2012.  By the time of CL’s Expert inspected Flat GA, the plaintiffs had already re-painted the ceiling of the Affected Room and there was no trace of the subject of the plaintiffs’ complaint.  CL’s Expert’s evidence was that by studying the photographs taken by his assistant on 8 May 2012, ie about two years after the water seepage had ceased, he could tell that the water seepage had developed well before the commencement of the Work which was on about 6 February 2009.  This is incredible and in contradiction with the undisputed evidence of P2 that the water seepage was only first found in August 2009.  On the other hand, in the LKS Report and at the trial, CL’s Expert said that the water seepage had been developed for more than two years.  CL’s Expert had overlooked the fact that the first time when the plaintiffs noticed water seepage was in August 2009 which was more than two years before 8 May 2012.  Even if CL’s Expert could tell from the photographs that the water seepage had been developed for over two years before 8 May 2012, ie before 8 May 2010, I do not know how he could tell that it was not developed since August 2009 but before February 2009.

150. Based on the premise that the water seepage had developed well before the commencement of the Work, CL’s Expert stated in para 7.0(C) of the Joint Report that: “It could be almost concluded that the main source of Defects [the water seepage] was directly related to the area immediately below the shower tray with either defective waterproofing membrane, or leakage of concealed drainage outlet pipe, or both.”

151. The aforesaid conclusion of CL’s Expert was based on the aforesaid incredible opinion not supported by evidence (in fact contradicted by the evidence of P2, a factual witness of Cheung Lee). No evidence was adduced to show that the waterproofing membrane of the shower tray in the Servant Room was defective or that there was leakage of concealed drainage outlet pipe of the shower tray.  Without any supporting evidence, such conclusion was mere speculation.  As a matter of facts, the ponding test and spray water test conducted by DCL at the bathroom and the shower tray in the Servant Room on 21 September 2009 and the colour water test conducted by ENI to the drainage of the shower tray on 20 August 2009 produced evidence directly contradicted the aforesaid conclusion of CL’s Expert. 

152. In the Joint Report, it was stated that:-

“6.7 WG Survey Report [the LKS Report] identified that the water seepage area was at the ceiling of the servant room of the Plaintiff’s Premises [the Affected Room] where is located immediately below the altered shower tray area of 1^st & 2^nd Defendants’ Premises. No sign of water seepage was observed at the ceiling of porch area [this was the area outside the kitchen of Flat GA and was sometimes described as balcony of Flat GA] where is located immediately below the subject balcony of 1^st & 2^nd Defendants’ Premises [the Balcony]. So it could be almost concluded that the source of water seepage directly come from either defective waterproofing membrane of the shower tray, or leakage of concealed drainage outlet pipe of the shower tray of the new bathroom (or the old servant room) of 1^st & 2^nd Defendants’ Premises, or both.”

153. CL’s Expert said under cross examination that he formed the view that the waterproofing membrane of the shower tray in the Servant Room was defective by inference because the affected area was located immediately below.  To rely solely on the location of the shower tray of the Servant Room being immediately above the damp patch of the Affected Room, without conducting any tests, to conclude that the water came from the Servant Room was too superficial.  The following comments of Fung J made in Fung Hing Wang and anor v Tang Chung Keung Raymond (unrep, HCA 189/2007, 7 March 2007) equally applied to this case:-

“35. Ms Cheng [the claimant’s counsel] submitted that water travels the shortest distance, and the gust bathrooms of Block 1 and Block 2 are separated by thick adjoining wall, and it is impossible for water seep from Block 1 to Block 2. However, it is generally known that water does not only travel vertically down the concrete floor slap [sic], but also horizontally through weakness points in the concrete. Shortest distance must be taken to mean the shortest distance through paths of weaknesses. Hence, visual observation of the ceiling is not a scientific and reliable test of determining the source of water seepage. It is trite that the worth of an expert opinion lies in the foundation upon which the opinion is expressed.”

154. I do not accept the opinion of CL’s Expert.

Whether the water leakage claimed by the plaintiffs came from the Balcony?

155. In the statement of claim, the plaintiff pleaded that:-

“11. Since August 2009, water leakage and/or seepage and peel-off paint have been found to exist at the ceiling of the 2^nd Plaintiff’s kid room (“the Kid’s Room”) and water leakage appears continuing.”

“13. On or about 20^th August 2009 and on several occasions thereafter, The FEHD Joint Office or its contractor carried out a number of tests by pouring colour dye solutions into waste water drainage systems or onto certain floors of 1A Flat including the 1A Balcony and bathroom of the Servant Room and/or measuring the humidity of the rooms inside the Ground A Flat including the Kid’s Room.”

“14. In September 2009, The FEHD Joint Office found that water and/or colour dye solution was seeping from the balcony of 1A Flat (“the 1A Balcony”) into and appeared at the ceiling outside the kitchen of the Plaintiffs or the ceiling of the balcony of the Plaintiffs.”

“17. On 3^rd February 2010, Infrared Engineering & Consultants Limited (“IEC”) was engaged by the 2^nd Plaintiff to perform inspections, testing and examinations of the Kid’s Room.  Stains, peel-off paint, and thermal anomalies were found by IEC despite of the fact that the Defendants had carried out the Repair Work in the 1A Balcony. …”

“23. By reason of the matters aforesaid, the Kid’s Room has become very damp and rendered un-tenantable so that the child of 2^nd plaintiff has been staying outside of the Kid’s Room since January 2010 and living in the sitting room of the Ground A Flat.”

156. Mr Siu submitted that the source of water seepage to Flat GA claimed by the plaintiffs was not from the Balcony but from the bathroom in the Servant Room.

157. The tests conducted by the Joint Office as pleaded in paras 13 and 14 of the statement of claim were recorded in the two reports produced by DCL referred to in paras 80 to 89 above.  The colour dye solution tests conducted by DCL on 21 September 2009 and 6 February 2010 confirmed that the Balcony had water leakage problem and the water would seep from the Balcony to its soffit outside the kitchen of Flat GA (see pp 244, 246 and 248 of the trial bundles) and to the ceiling of the Affected Room (see pp 278, 280 and 282 of the trial bundles).

158. The 1^st defendant’s evidence was that after P2 complained to him about water seepage to Flat GA, he had required Cheung Lee to repair the floor tiles at the Balcony damaged by Cheung Lee during the Work.  Cheung Lee sent KT to repair the floor tiles at the Balcony in April 2009 and to repair the gaps between tiles on 5 December 2009 and 10 February 2010.  These gaps were left after KT replaced the damaged floor tiles at the Balcony in April 2010.  The 1^st defendant also engaged Kie Kee to paint additional layers of waterproofing materials on the surface of the floor of the Balcony on 20 December 2009 and 6 March 2010.  When these works still failed to stop the water seepage problem at Flat GA, the 1^st defendant engaged Kie Kee to lay an additional layer of tiles at the floor of the Balcony on top of the existing tiles and to install a waterproofing layer between the old tiles and the new tiles on 10 April 2010.  As I have referred to in para 52 above, the Joint Office’s tests on 12 May 2010 confirmed that the water seepage had ceased.

159. After considering the above evidence, I am satisfied that the defendants had proved on balance of probabilities that the water seeped into Flat GA came from the Balcony.

160. CL’s Expert stated in the Joint Report that defective waterproofing membrane of the shower tray in the Servant Room was the cause of the water seepage.  As I have pointed out in paras 151 to 153 above, there was no evidence to suggest that the waterproofing membrane of the shower tray in the Servant Room was defective.  In fact the ponding test and spray water test conducted by DCL at the bathroom and the shower tray in the Servant Room on 21 September 2009 did not suggest any defect in the waterproofing system of the shower tray in the Servant Room.

161. CL’s Expert further stated in the Joint Report that leakage at the outlet pipe of the shower tray in the Servant Room was the cause of the water seepage.  Again, there was no evidence to suggest that there was leakage at the outlet pipe of the shower tray.  The tests carried out on drainage (including drainage of the shower tray) by the Joint Office on 20 August 2009 yielded negative results.  When the aforesaid drainage test results were put to CL’s Expert at cross examination, he explained that there might be works done to the pipes of the shower tray prior to the tests which had resolved its water leakage problem.  He agreed that the pipe of the shower tray was not leaking as at 20 August 2009.  In providing his aforesaid opinion in the Joint Report, CL’s Expert had overlooked the facts that the water seepage problem in Flat GA did not emerge until August 2009 and did not stop until May 2010.

162. I have no hesitation in rejecting the aforesaid opinion of CL’s Expert.

163. Mr Siu commented that in DCL’s 1^st report, it was stated that reddish colour of the dye used in ponding the Balcony was found at the ceiling outside the kitchen of Flat GA but the report also said that no fluorescent effect was found at that ceiling under UV light.  He had put this to D’s Expert who was unable to explain.  Mr Siu submitted that this unexplained remark rendered DCL’s report unreliable.  I do not agree.

164. D’s Expert was unable to explain the aforesaid remark because he did not study DCL’s report carefully.  DCL used different dyes in ponding different areas (see pp 246 and 248 of the trial bundles) so that the source of any water seeped to Flat GA could be identified.  Some dyes had fluorescent effect and some did not (see p272 of the trial bundles).  The dye used in the ponding test for the Balcony was “AR” which stood for “Acid Red 52”.  This dye did not have fluorescent effect.  The dye used in the ponding test on 21 September 2009 with fluorescent effect was “FS” which stood for “Fluorescent Sodium”.  This dye was used in the ponding test for floor slab of the bathroom and in the spray water test at the shower tray in the Servant Room.  The aforesaid remark only confirmed that the water seeped to Flat GA on 21 September 2009 did not come from the bathroom or the shower tray in the Servant Room.  As I have earlier mentioned, these tests rebutted the opinion of CL’s Expert.

165. In the ponding test to the floor slab of the Balcony conducted on 6 February, the dye “FS” was used and fluorescent effect of FS was found at the ceiling of the Affected Room on 9 March 2010 (see pp 280 and 282 of the trial bundles).  The tests conducted by DCL on the floor slab of the Balcony yielded a consistent result, ie the water would seep to Flat GA.

166. Mr Siu commented that ponding test was not a reliable way to prove water leakage as it was conducted in an artificial environment with water pressure (which would not occur in the ordinary daily use of the Balcony) being created and the two ponding tests conducted by DCL produced results of seepage to different areas.  With respect, I disagree.

167. I noted that DCL’s report did not mention that water seepage was found at the ceiling outside the kitchen of Flat GA in March 2010.  It did not mean that there was no seepage to that area from the ponding test done on 6 February 2010 but only that such seepage might no longer be apparent by 9 March 2010 when DCL revisited Flat GA to check finding for the February ponding test.  As showed on the building plan, the area outside the kitchen of Flat GA was a porch which was an open area.  Water seeped to an open area will evaporate easily and will not be noticed especially when the seepage was slow.  The above found support in the plaintiffs’ pleaded case when the plaintiffs pleaded in para 6 of the Reply that:-

“被告人的露台地台位於原告人廚房外的天花位置，平時不容易察覺該處有漏水跡象。即使是大雨過後，原告人亦少有到外特別觀察。”

168. The artificial pressure created in the ponding test would speed up the effect of the water leakage.  If there was no leakage, the ponding test would not yield positive result even with this artificial pressure.  This was demonstrated by the ponding test to other areas of Flat 1A conducted on 21 September 2009.  Ponding test does not create leakage but only shows the source of leakage.

169. The fact that the ponding tests conducted at the Balcony on 21 September 2009 and 6 February 2010 showed seepage to different areas in Flat GA was because the resultant readings were taken at different times.  The seepage to the ceiling outside the kitchen of Flat GA was observed at five minutes after the test whereas the seepage to the ceiling of the Affected Room was observed more than one month after the test. This exactly explained the query of Mr Siu.  Both ponding tests were carried out for 60 minutes.  With the presence of the artificial pressure, it took five minutes for the dye to appear at the ceiling outside the kitchen of Flat GA immediately beneath the Balcony.  When this artificial pressure disappeared after finished ponding, it took more than one month for the dye to travel further to the ceiling of the Affected Room.  The indisputable fact was that the dye used in the ponding test at the Balcony did travel all the way from the Balcony to the ceiling of the Affected Room although it took more than one month for the dye to complete the journey.  This was also consistent with the Work at the Balcony being completed in March 2009 and water seepage to Flat GA was not noticed until August 2009.  Water not under pressure travels slow but still seeps along lines of weakness in concrete under the force of gravity only that the seepage takes longer time to surface.

170. D’s Expert said that heavy rain might flood the Balcony and create the effect of a ponding test and the ponding tests conducted by DCL supported his conclusion that the water seepage claimed by the plaintiffs came from the Balcony.  Mr Siu relied on P2’s aforesaid “water dripping” evidence to submit that water dripped from the ceiling of Flat GA during dry winter season (ie January 2010) and iREC found water leakage signs on 3 February 2010 when there were no raining records for the 48 hours prior to iREC’s tests.  Mr Siu contended that such evidence showed that water still seeped to Flat GA in dry season (ie without the Balcony being flooded by rain).  Mr Siu submitted that D’s Expert’s hypothesis did not sit in well with the aforesaid evidence.  Mr Siu further commented that it was D’s Expert’s evidence that if there was leakage, the water would seep through within 1 or 2 days, if not immediately but D’s Expert was unable to reconcile his hypothesis with the findings of iREC.

171. I have discussed P2’s “water dripping” evidence in the earlier part of this judgment and shall not repeat the same here. (See paras 99-104 above)  Suffice it to say that I do not accept that P2’s evidence had disproved the proposition that water seeped from the Balcony to the Affected Room.

172. The tests conducted by DCL showed that water at the Balcony took five minutes to travel to its soffit and took a month to travel to the Affected Room.  When the leaked water surfaced again would depend on the travelling distance and the conditions of the lines of weakness in the concrete along which the water travelled.  The fact that there was no rain in the 48 hours prior to the tests of iREC was neither here nor there.

173. Both experts agreed that for water to leak from the Balcony to the ceiling of the Affected Room, it had to pass through a column of 10-inch thick.  Mr Siu submitted that both experts agreed that it was unlikely that water could seep through the 10-inch column.

174. Mr Siu submitted that in order to prove that water leaked from the Balcony to the Affected Room, the defendants had to establish that Cheung Lee had damaged the 10-inch thick column between the Balcony and the Affected Room.  He relied on CL’s Expert’s opinion that the level of vibration produced by KWT’s work at the Balcony was insignificant.  It was highly unlikely that such works could damage the 10-inch column.

175. Mr Siu referred to the opinion of CL’s Expert that if there was leakage from the Balcony, it was more likely that the water would leak vertically down the Balcony to its soffit, which was 4-inch to 4.5-inch thick, rather than horizontally through the 10-inche column.  Similar argument was put forward in the Fung Hing Wang case (supra) when counsel for the claimant (owner of a flat in Block 2) in an attempt to exclude water from Block 1 flat as the possible sources of leakage to the claimant’s flat in Block 2 submitted that “water travels the shortest distance, and the guest bathrooms of Block 1 and Block 2 are separated by thick adjoining wall, and it is impossible for water to seep from Block 1 to Block 2.”  Fung J pointed out the fallacy of such proposition when His Lordship stated that “it is generally known that water does not only travel vertically down the concrete floor slap [sic], but also horizontally through weakness points in the concrete.  Shortest distance must be taken to mean the shortest distance through paths of weaknesses.” (See para 35 of the judgment)  The same equally applies to the aforesaid contention advanced by Mr Siu.

176. I only have to add that there might have more than one path of weakness in the concrete and water might travel both vertically and horizontally at the same time.  Water travelling through the shorter path of weakness would surface quicker (such as the water found at the soffit of the Balcony on 21 September 2009) and water passing through the longer path of weakness would surface later (such as the water found at the ceiling of the Affected Room on 9 March 2010).

177. I agree that there was no sufficient evidence showing that Cheung Lee had damaged the 10-inch column. However, if Cheung Lee damaged the waterproofing system of the Balcony, water leaked from the Balcony could pass through existing line of weakness in the 10-inch column to reach the Affected Room.  The thickness of the column between the Balcony and the ceiling of the Affected Room would made it more difficult or time consuming for water to pass through it but it did not stop the water from passing through if there were points of weakness.  The indisputable fact was that water did pass through the column and travel from the Balcony to the Affected Room.

178. D’s Expert relied on repair work carried out by the defendants to the Balcony on 6 March 2010 and 10 April 2010 and the fact that water seepage to Flat GA had ceased by 3 October 2012 to support his view that the source of water seepage claimed by the plaintiffs was from the Balcony.

179. Mr Siu commented that D’s Expert did not know the duration of the repair work; did not know who carried out the repair work; did not know the expenses incurred on the repair work; and did not see how the repair work was carried out.  Mr Siu submitted that it was simply impossible for D’s Expert to either conclude that the repair work resolved the leakage problem or that the source of leakage was the Balcony.  With respect, I disagree.

180. I see no relevancy between the source of water seepage and the duration of the repair work, the identity of the person who carried out the repair work and the expenses incurred on the repair work.  Although D’s Expert did not see how the repair work was carried out, the 1^st defendant had in his evidence told what repair work had been carried out on 6 March 2010 and 10 April 2010.  It was simple work which a layman would have no difficulties to understand and explain.

181. As stated in paras 38 and 41 of the 1^st defendant’s witness statement, on 6 March 2010, a layer of waterproofing materials was painted on the surface of the floor of the Balcony.  On 10 April 2010, a new layer of floor tiles was laid on top of the existing floor tiles with a waterproofing layer put in between the two layers of tiles.  The repair work was arranged and paid for by the 1^st defendant.  The 1^st defendant might not know what waterproofing materials were being used on 6 March 2010 and he might not know what were the materials making the waterproofing layer used on 10 April 2010.  However, these were not important.  The important thing was that the repair work stopped further water seepage to Flat GA.

182. Mr Siu submitted that CL’s Expert opinion was much more balanced and believable when CL’s Expert said that without knowing the quality of the repair work, and without knowing if repair had been carried out to other places, he could not ascertain if the work done by the defendants cured the leakage problem.  Mr Siu described CL’s Expert’s opinion as balanced opinion.  I find CL’s Expert’s opinion evasive and unhelpful.

183. Mr Siu put forward another proposition for the source of water seepage to Flat GA.  Mr Siu contended that leaking from the bathroom facilities in the Servant Room was the source of water seepage to the ceiling of the Affected Room.

184. Mr Siu started off by pointing out that D’s Expert stated in the LWW Report that he agreed with the conclusion of T&S that concealed water pipe in the bathroom of the Servant Room above the Affected Room might be the cause of water leakage.  To do fairness to D’s Expert, the relevant paragraph of his report (p 188 of the trial bundles) should be quoted in full which read as follows:-

“d. T&S report concludes that the “hidden defect of existing waterproofing layer at (small) balcony [the Balcony] and concealed water pipe in the bathroom (of the Subject Property) [the one within the Servant Room] above the Bedroom 3 [the Affected Room] may cause the water leakage such as leaking of water pipe, failure of waterproofing layer and poor quality of concrete structure”. This part of the conclusion is same as my findings and assessment.”

185. It could be seen that T&S did not conclude that water seepage at the ceiling of the Affected Room came from the concealed water pipe in the bathroom of the Servant Room as contended by Mr Siu.  T&S in its report only listed out three possible explanations for the leakage, namely (1) leaking of water pipe; (2) failure of waterproofing layer; and (3) poor quality of concrete structure.  In the LWW Report, D’s Expert agreed to such explanations.  D’s Expert explained in cross examination that while the bathroom in the Servant Room might cause the water seepage claimed by the plaintiffs, he had eliminated this possibility after studying the other reports.  Mr Siu dismissed D’s Expert’s explanation as disingenuous and unbelievable as D’s Expert did not spell out expressly in the LWW Report which parts of the T&S report he did not agree.  In putting forward the aforesaid contention, it seems that Mr Siu had confused “agreeing to leakage of water pipe as a possible cause” with “agreeing to leakage of water pipe being the cause”.

186. Mr Siu referred to the evidence of CL’s Expert who said that given the seriousness of the leakage problem with drippings, the water that leaked had to be under pressure.  CL’s Expert opined that only the shower tray could produce the requisite level of water pressure that caused the serious leakage problem.  He further said that with the passage of 4 years after the 2005 Renovation, leakage could occur as a result of poor workmanship and/or wearing and tearing of the pipes and other materials of the shower tray.  CL’s Expert also referred to the location of the bathroom of the Servant Room being immediately above the Affected Room.  Mr Siu also referred to the report of iREC which found water leakage signs after no rain in the previous 48 hours.  I have previously dealt with P2’s “water dripping” evidence (see paras 99-104 above), the “location” issue (see paras 152-153 above) and the “no rain” argument (see para 170-172 above).  I have previously pointed out that the test to drainage of the shower tray in the bathroom of the Servant Room conducted by the Joint Office on 20 August 2009 had yielded negative result.  I do not propose to repeat myself here.  Suffice it to say that I do not accept that the matters referred to by Mr Siu substantiate this proposition of leakage from water pipe in the Servant Room.

187. Mr Siu submitted that the case of Cheung Lee was that the defendants had actually carried out repair to the bathroom in the Servant Room.  Mr Siu put forward such case of Cheung Lee notwithstanding that even CL’s Expert admitted that there was no evidence for such contention.  When commenting on the repair work done by the defendants to the floor of the Balcony, CL’s Expert’s evidence was that without knowing if repair had been carried out to other places, he could not ascertain if the repair work done by the defendants to the Balcony cured the leakage problem. CL’s Expert’s evidence was that he did not know whether repair had been carried out to other parts of Flat 1A.

188. Mr Siu referred to CL’s Expert’s suggestion that it was improbable that the defendants would incur the expenses to repair the Balcony but would not at the same time repair the bathroom in the Servant Room.  I do not see the logic of such suggestion.  The defendants repair the Balcony after they received the Nuisance Notice from the Joint Office which specifically stated the nuisance being “water seepage through the floor slab of the balcony” in Flat 1A.  Why would the defendants repair the bathroom when they were only required by the Joint Office to repair the Balcony?  What repair the defendants would have to do with the bathroom when the tests conducted by the Joint Office and DCL did not show any leakage from the bathroom?

189. Mr Siu also referred to BT’s evidence at the trial when BT said that the ground floor unit owner from the building next to the Building had complained to him that there was water leaking from Flat 1A to his unit and that leakage problem was cured after the defendants fixed their toilet.  Cheung Lee’s case was that the water seepage claimed by the plaintiffs came from the bathroom in the Servant Room.  In para 12 of BT’s witness statement, he stated that:-

“而再經查實後，第二第三方 [Cheung Lee] 得知第一及／或第二被告人於買入被告人單位 [Flat 1A] 後，將原先直接位於原告人單位小孩房間改裝為浴室，而該改動需大規模改動喉管。再者，有關原告人的睡房內漏水位置與有關改動喉管相當接近。因此第二第三方懷疑是次滲水問題與被告人改裝所引致的喉管改動，或正如早前所指，被告人根本沒有為其單位露台進行防水工程有關。”

190. BT’s witness statement was dated 23 November 2012, ie after the joint inspection of the parties’ experts on 3 October 2012.  The experts had confirmed that water seepage had already ceased as at 3 October 2012.  Mr Siu put Cheung Lee’s case as that the defendants had carried out repair work to the bathroom in the Servant Room which stopped the water seepage and BT had been told that the defendants had previously carried out repair work to the toilet.  In the words of Mr Siu: “Such unchallenged evidence of Mr B Tsui shows that it is more likely than not that repair works have been done to the Bathroom”. (See para 86 of Mr Siu’s closing submission)  If so, BT should have included such evidence in his witness statement and Cheung Lee should have called the person who told BT such information to testify at the trial and to put its case to the 1^st defendant.

191. This piece of hearsay evidence was not mentioned in BT’s witness statement.  The maker of the statement had not attended the trial for cross-examination.  This piece of evidence had not been put to the 1^st defendant for his comment when the 1^st defendant had stated in para 15 of his witness statement dated 24 December 2012 that until Cheung Lee carried out the Work to the Building, the defendants had never received any water leakage complaint in respect of Flat 1A.  The defendants had no opportunity to respond to such allegation.  I give no weight to such evidence. 

192. Mr Siu criticized the defendants for adducing no evidence to prove that they had not carried out repair works to the bathroom in the Servant Room.  The general rule of evidence is that the party who asserts must prove.  No evidence had been adduced to prove that the defendants had carried out repair works to the bathroom in the Servant Room. I see no merits in such criticism of Mr Siu and reject the same. 

193. I find that the water seeped to the ceiling outside the kitchen of Flat GA and the ceiling of the Affected Room came from the Balcony.

Whether the water leakage was caused by the Work?

194. According the P2, one of Cheung Lee’s witnesses, the water seepage to Flat GA was discovered in August 2009 and not earlier.  It was not disputed that Cheung Lee carried out the Work at the Balcony in March 2009.

195. There was no dispute that the Work carried out by Cheung Lee at the Balcony included inter alia:-

(1) removed two existing pipes which passed through the floor slab of the Balcony;

(2) sealed the openings of the two removed pipes;

(3) combined new pipes into a bigger pipe and replacing an old pipe with the new bigger pipe which would pass through the floor slab of the Balcony;

(4) enlarged the opening for the aforesaid old pipe to enable the bigger new pipe to pass through; and

(5) installed the new bigger pipe and thereafter sealed the edge of the opening.

196. The 1^st defendant claimed that Cheung Lee had done the Work negligently in causing damage to the waterproofing system of the Balcony leading to water seepage to Flat GA.

197. Cheung Lee agreed that its workers had caused minor damage to the surface of the floor tiles of the Balcony but denied that it had damaged the waterproofing membrane of the Balcony.

198. KWT, Cheung Lee’s worker who carried out the Work at the Balcony, confirmed that he needed to remove some concrete from the floor slab of the Balcony in order to remove the old pipes and to install the new pipe.  After installing the new pipe, he had to refill the surrounding of the opening with cement and waterproof adhesive.  He recalled that he did not see waterproofing layer in the floor slab of the Balcony.

199. The 1^st defendant in his evidence stated that he had not done any renovation work to the Balcony other than putting on new tiles for good looking purpose.  Other than a bare assertion in para 11 of BT’s witness statement that: “被告人單位亦多次裝修露台”, Cheung Lee adduced no evidence to prove such alleged decoration work.  I accept the evidence of the 1^st defendant and find that the defendants had not renovated the Balcony after the 2005 Renovation.

200. I agree with Mr Siu that the photographs produced by the 1^st defendant were insufficient evidence to show that Cheung Lee had damaged the waterproofing system of the Balcony. (See pp 1006-1017 of the trial bundles)  At most, they could only show poor finishing workmanship which did not concern us here.

201. I agree that there was no direct evidence to prove that Cheung Lee had damaged the waterproofing system of the Balcony. The evidence adduced by the defendants had proved the following matters:-

(1) prior to Cheung Lee carrying out the Work at the Balcony, the defendant had not done any work to the floor slab of the Balcony after the 2005 Renovation;

(2) water seepage to Flat GA did not occurred until after Cheung Lee had carried out the Work at the Balcony;

(3) Cheung Lee had dug into the floor slab of the Balcony to remove two existing pipes;

(4) Cheung Lee had sealed the two openings in the floor slab of the Balcony after removing the aforesaid two pipes;

(5) Cheung Lee had enlarged another opening in the floor slab of the Balcony; and

(6) Cheung Lee had sealed the surrounding of the enlarged opening after installation of the new pipe.

202. Although the defendants adduced no evidence to prove what type of waterproofing work was in place at the Balcony before August 2005, I am prepared to accept that there had to be a waterproofing system subsisting at the Balcony so that no water had been seeped to Flat GA from August 2005 until 2009.

203. If there was an effective waterproofing system in place at the Balcony and the system suddenly failed in 2009, there had to be some intervening events.  From the evidence adduced before me, the only intervening event was the Work carried out by Cheung Lee at the Balcony and the nature of the Work which included digging into the floor slab, enlarging opening in the floor slab, and sealing of openings in the floor slab could easily cause water leakage problem.

204. In an attempt to explain how water during the ponding test would go from the Balcony to the ceiling of the Affected Room, CL’s Expert put forward the following proposition (see para 44 of Mr Siu’s closing submissions):-

(1) When the defendants renovated Flat 1A in 2005, the defendants had built pipes which were concealed in the floor slab of the bathroom in the Servant Room as well as that of the Balcony.

(2) Such pipes did not penetrate into the 10-inch column between the soffit of the Balcony and the ceiling of the Affected Room but got round the column.

(3) With the wearing and tearing of the materials, there could be space between the floor slab and the pipes, ie the “tunnels”.  Such “tunnels” pass through the Balcony and the bathroom in the Servant Room.

(4) When the drainage in the Balcony was covered up, there was water under pressure on the Balcony, such water could seep through the “tunnels” into the floor slab of the bathroom in the Servant Room, ie ceiling of the Affected Room.

205. The aforesaid proposition of CL’s Expert was not supported by evidence.  The 1^st defendant’s evidence was that other than putting on new tiles, the defendants had not carried out any renovation at the Balcony.  To say that the defendants had built pipes which were concealed in the floor slab of the Balcony was without basis.  To say that such pipes got round the column and wearing and tearing of materials created “tunnels” passing through the Balcony and the bathroom of the Servant Room were sheer speculations.  I am not persuaded by proposition without supporting evidence (in fact the 1^st defendant’s evidence was against it) and made out of speculations.

206. In any event, CL’s Expert’s proposition did not assist Cheung Lee even if it was accepted by the court (which was not) as the water on the surface of the Balcony would not seep into the “tunnels” (existence of which was not proved) even under pressure if the waterproofing system of the Balcony was kept intact and not damaged by Cheung Lee’s work.

207. I am satisfied on balance of probabilities that the water leakage problem of the Balcony was caused by the Work carried out by Cheung Lee at the Balcony. 

Whether Cheung Lee was liable to the defendants’ claim?

208. The defendants claimed against Cheung Lee for negligence.  Viscount Simon stated in Woods v Duncan [1946] AC 401 at 419 that:

   “Before the liability of a defendant to pay damages for the tort of negligence can be established in an action brought by or on behalf of an injured man, three things have to be proved — (1) that the defendant failed to exercise due care; (2) that the defendant owed to the injured man a duty to exercise due care; and (3) that the defendant’s failure was the “cause” of the injury in the proper sense of the term.”

209. There was no dispute that in carrying out the Work at the defendants’ property, Cheung Lee owed a duty to the defendants to exercise due care in the execution of the Work.  Mr Siu took issue on whether the defendants had proved that Cheung Lee had failed to exercise due care and whether the damages claimed by the defendants were foreseeable damages recoverable from Cheung Lee.

210. Mr Siu submitted that as Cheung Lee was a building contractor, a claim against Cheung Lee for negligence was actually one of professional negligence.  With respect, I do not agree that a claim against a building contractor for want of skill and care in sealing openings after replacing pipes amounts to a claim of “professional negligence”.

211. What is “a profession”?  In para 1-005 at pp 2-3 of Jackson & Powell on Professional Liability (7^th edition) 2012, the learned editors expressed the following views:-

“It remain the case that a definition of “the professions” is pre-eminently a matter for social historians rather than lawyers.  Nevertheless, the effect of the addition of the definite article and the plural is that the term “the professionals” connotes a narrower meaning than that connoted today by “a profession”.  It was ventured in previous editions that the occupations which are regarded as professions have four characteristics.

(1)  The nature of the work: The work done is skilled and specialised.  A substantial part of the work is mental rather than manual.  A period of theoretical and practical training is usually required before the work can be adequately performed.

(2)  The moral aspect: Practitioners are usually committed, or expected to be committed, to certain moral principles, which go beyond the general duty of honestly.  They are expected to provide a high standard of service for its own sake.  They are expected to be particularly concerned about the duty of confidentiality.  They also, normally, owe a wider duty to the community, which may on occasions transcend the duty to a particular client or patient.

(3)  Collective organisation: Practitioners usually belong to a professional association which regulates admission and seeks to uphold standards of the profession.  Such associations commonly set examinations to test competence and issue professional codes on matters of conduct and ethics.

(4)  Status: Most professions have a high status in the community.  Some of their privileges are conferred by Parliament.  Some are granted by common consent.

These characteristics still hold true, with some qualifications.”

212. In para 9-001 at p 344 of Jackson & Powell on Professional Liability, the learned editors stated that:-

“Given the variety of modern contractual arrangements, building methods and titles, it is sometimes difficult both to identify the relevant professional discipline and to distinguish the professional from a building contractor.”

213. It can be seen that building professional is distinguished from building contractor.  A claim for negligence against a building contractor does not necessarily mean a claim for professional negligence.

214. The works at the Balcony were done by KWT and KT.  KWT described himself in his witness statement as “高級水喉技工”and holder of “香港建造業工人註冊管理局認可之建造業工人及水喉工資格” at the material times.  KT described himself in his witness statement as holder of “香港建造業工人註冊管理局認可之建造業工人及泥水大工牌照”.  In both his opening submissions and closing submissions, Mr Siu described both KWT and KT as workmen.  Mr Siu in his closing submissions rightly pointed out that both the piping work done at the Balcony by KWT and the tile replacement work done by KT at the Balcony were not complex works.  Applying the characteristics for professional proposed in Jackson & Powell on Professional Liability, ie nature of work, moral aspect, collective organization and status, and with due respect to KWT and KT, I am of the view that they came more close to skill workers than building professionals.

215. Mr Siu submitted that it was in almost all professional negligence cases essential to have supportive expert evidence and the defendants had not adduced expert evidence in this respect. As I do not agree that this is a professional negligence claim, I find no merits in Mr Siu’s aforesaid contention.

216. Mr Siu criticized the defendants of not adducing expert evidence on the workmanship of KWT and KT despite repeated complaints about their workmanship.  He further criticized the defendants of not calling the contractor engaged by the defendants to repair the Balcony to testify at the trial.  He urged me to draw adverse inference against the defendants for failing to adduce evidence (factual and expert evidence) on Cheung Lee’s workmanship.

217. The defendants did produce some photographs showing rough finishing of KT’s works.  Rough finishing would affect appearance but would not cause water leakage.  Water leakage was caused by damaging the waterproofing system which could not be shown by examining the external finishing.  Calling the contractor who had painted a layer of waterproofing materials on the surface of the floor or who had laid an additional layer of floor tiles on top of the existing one to comment on the finishing done by Cheung Lee’s workers would not be of any assistance to this court in determining the issue in dispute between the defendants and Cheung Lee in this case.  The issue was whether Cheung Lee had damaged the waterproofing system of the Balcony during the Work.   

218. Mr Siu relied on the experience of KWT, KT and BT and the fact that no other owners of the Building had complained that the Work had led to water leakage problems to submit that it was inherently improbable that Cheung Lee would have breached its duty of care. The experience of KWT, KT and BT and the fact that there was no other water leakage complaint caused by Cheung Lee were neither here nor there.  I do not see how this would substantiate a proposition of inherent improbability of breach of duty by Cheung Lee.

219. Mr Siu submitted that the defendants had adduced no evidence to prove that there was a waterproofing system in the Balcony before the Work and the evidence of KWT and KT was that they did not find any waterproof membrane in the floor slab of the Balcony.

220. The defendants claimed that the waterproofing system of the balcony was damaged by Cheung Lee in the course of its work.  I agree that no evidence had been adduced to show which type of waterproofing system was in place in the Balcony and that the type of damage done by Cheung Lee to the waterproofing system of the Balcony was unknown.

221. D’s Expert told the court that there were two methods of waterproofing, namely by waterproof membrane or by additive. He said that using additive for waterproofing had become more common in the last 10 odd years.  Mr Siu relied on the Building being built 60-year ago to submit that if there was waterproofing in the Balcony, it would be a layer of plastic waterproof membrane.

222. There was no dispute that the Building was an old building.  No evidence was adduced to show whether there was any waterproofing system installed by the developer when the Building was built in 1960s or whether any predecessor of the defendants had installed a waterproofing system to the Balcony prior to the defendants became owners of Flat 1A in 2005.  However, evidence adduced before me showed that there was no water leakage from the Balcony before Cheung Lee carried out the Work at the Balcony and water leakage occurred within months after Cheung Lee’s work.  The fact that there was no water leakage from the Balcony from 2005 to 2009 until after the Work was evidence showing that there was waterproofing system in place in the Balcony although we did not have details of such system.

223. Mr Siu referred to KT’s evidence that he did not find any waterproof membrane adhered to the tiles when he replaced the floor tiles for the Balcony to support his contention that there was no waterproofing system at the Balcony.

224. KT in his witness statement stated that:-

“2. …… 本人在更換磁磚時，本人需把原先的磁磚片鑿出，亦盡量不會鑿到磁磚下的水泥，而所鑿之深度連磁磚片不會厚於13-15毫米，而無可避免需鑿走之水泥部份不會深於5毫米。

3.  本人在鑿走原有磁磚片時，並未有發現該露台所被鑿之處有任何防水層或防水物料。”

225. It could be seen that KT did not dig deep into the floor slab of the Balcony.  His observation could not prove that the Balcony had no waterproofing system.

226. Mr Siu also commented that the defendant should have called the contractor engaged by the defendants to repair the Balcony to give evidence on whether it had found any waterproof membrane in the Balcony when it carried out works there in March and April 2010.  He again urged me to draw adverse inference against the defendants for failing to call such witness.  In view of the nature of repair work carried out by Kie Kee to the Balcony which did not involve digging into the floor slab of the Balcony, I do not see how witness from Kie Kee might give evidence on this issue.  I see no merits in this contention of Mr Siu.

227. I am satisfied on balance of probabilities that the Balcony had a waterproofing system in place which functioned properly before the Work.  If such waterproofing system had not been damaged, water would not leak from the Balcony.

228. Cheung Lee undertook the Work.  It should have executed the Work with reasonable skill and care so that the waterproofing system in place in the defendants’ property would not be damaged.  Cheung Lee contended that the water was leaked from the shower tray in the Servant Room which I rejected.

229. No other acceptable explanation for water leakage from the Balcony was put forward.  I am satisfied upon evidence adduced before me that the waterproofing system which functioned properly prior to Cheung Lee carried out the Work at the Balcony was damaged by Cheung Lee when Cheung Lee executed the Work.  This was due to want of care on the part of Cheung Lee.

230. It is well established after The Wagon Mound [1961] AC 388 that a defendant liable for negligence is liable to compensate the claimant for damages which are reasonably foreseeable.  

231. Mr Siu contended that while Cheung Lee could possibly foresee that if it damaged the waterproofing system of the Balcony, water could leak from the Balcony to its soffit, Cheung Lee could not possibly foresee that the water would leak to the “tunnels” and cause leakage problem in the Affected Room.  He submitted that Cheung Lee could not be held liable for such improbable consequences, which were brought about by the unauthorized construction of concealed pipes by the defendants.

232. As I have pointed out above, the existence of “tunnels” was speculation without evidential support.  Mr Siu’s aforesaid contention was based on unfounded premise and is rejected.

233. As stated in para 5-15 of Charlesworth & Percy on Negligence (12^th edition) 2010 at p 346:-

“The defendant is liable for all damage of a kind that was reasonably foreseeable, given the scope of the duty of which he was in breach. And so long as the damage is of a kind that was reasonably foreseeable, it is not necessary that the precise mechanism by which the damage was caused was foreseeable. Again, the wrongdoer is liable for foreseeable damage even though its full extent may not have been capable of anticipation.”

234. Cheung Lee should have foreseen that if it damaged the defendants’ property, the defendants’ would have to incur costs to repair their property.  Cheung Lee should also have foreseen that if it damaged the waterproofing system in the Balcony, water would leak from Flat 1A to Flat GA and the owner and/or occupier of Flat GA would claim against the defendants.  It is a common knowledge that water travels not necessarily vertically but also diagonally along points of weakness in concrete under force of gravity.  In this case, water leaked from the Balcony causing damage to the ceiling of the Affected Room not far away from the Balcony was damage of a kind that a reasonable person should have foreseen.  

235. Repair costs for the Balcony incurred by the defendants and compensation paid to the plaintiffs, owner and occupier of Flat GA, were foreseeable damages for Cheung Lee’s breach of its duty of care.  I find Cheung Lee liable to the defendants’ claim.

Quantum

236. The defendants claimed (1) $4,308 being repair costs for the Balcony; (2) $25,000 being settlement sum paid to the IO; and (3) $25,000 being settlement sum paid to the plaintiffs.

237. In his closing submissions, Mr Chow claimed the settlement payment paid to the IO as a Bullock order. I shall deal with this part of the defendants’ claim in the section on costs below.

238. The remaining claim of the defendants against Cheung Lee was for repair costs incurred by the defendants and the settlement sum paid to the plaintiffs.

239. The repair costs claimed by the defendants included costs for replacement tiles ($126), costs for repair carried out on 6 March 2010 ($1,500), and costs for repair carried out on 10 April 2010 ($2,682).  The total repair costs claimed was $4,308.  The defendants had produced documentary proof for these expenses. (See pp 140, 142, 171, 173 and 174 of the trial bundles)

240. The repair costs for 10 April 2010 included costs for purchasing 14 pieces of floor tiles in the sum of $182 (see p173 of the trial bundles).  The 1^st defendant agreed in cross examination that it was not necessary for him to purchase 14 pieces of floor tiles for the repair on 10 April 2010.  The work only required 12 pieces of floor tiles to complete.  I agree with Mr Siu that the cost for the two spare floor tiles in the sum of $26 is not recoverable from Cheung Lee.

241. I find that Cheung Lee is liable to pay $4,282 (ie $4,308 - $26) to the defendants as costs incurred by them to repair the Balcony.

242. In respect of the settlement sum paid to the plaintiffs, Mr Siu referred me to the Civil Liability (Contribution) Ordinance (Cap 377).  Sections 3(4) and 3(5) of the aforesaid Ordinance provide that:-

“(4) A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.

(5) On assessing any contribution under this section the court shall disregard any part of the payment in respect of which the contribution is sought which appears to the court to be excessive.”

243. Mr Siu submitted that the defendants had not adduced evidence to justify the amount of $25,000 paid to the plaintiffs.  Mr Siu said that the settlement between the defendants and the plaintiffs was that each party would bear its own costs.  Mr Siu submitted that the plaintiffs claimed liquidated damages in the sum of $10,300 and further damages but no evidence had been adduced to substantiate that further damages. He submitted that the maximum amount of contribution that the defendants could claim from Cheung Lee was $10,300 under this head.

244. The settlement agreement between the plaintiffs and the defendants provided for each party to bear its own costs did not mean that the defendants needed not bear the plaintiffs’ costs but only that the amount of costs payable by the defendants to the plaintiffs had already been included in the settlement sum.  The settlement sum was an all inclusive figure and the plaintiffs did not claim costs separately against the defendants.

245. The proceedings between the plaintiffs and the defendants were not settled until more than one year after the plaintiffs commenced this action.  Costs for these proceedings had been incurred to the plaintiffs in respect of both of the main action and the third party proceedings.  In the circumstances of this case, an all inclusive sum of $25,000 to settle the plaintiffs’ claim against the defendants was reasonable.

246. I allow the defendants’ claim against Cheung Lee for the settlement sum paid to the plaintiffs in the sum of $25,000. 

Costs

247. The defendants claimed the amount of $25,000 paid to the IO as a Bullock order.  A Bullock order is an alternative to a Sanderson order.  A Sanderson order is appropriate if the claimant has properly sued two defendants with his claim against them in the alternative but succeeds against only one, the court may order the successful defendant’s costs be paid by the unsuccessful defendant. Alternatively, the court may make a Bullock order ordering the claimant to pay the successful defendant’s costs and then have such costs included in the claimant’s bill against the unsuccessful defendant.

248. Mr Siu referred to Linfield Limited v Taoho Design Architects Limited and ors (unrep, HCCT 68/2001, 20 November 2004, Reyes J) to submit that the court should not exercise its discretion to make a Sanderson order against Cheung Lee in this case as Cheung Lee had not done or said anything to implicate the IO.  Mr Siu further submitted that it was the defendants’ own ill-advised decision to join the IO as a third party to these proceedings and it was also their own decision to subsequently settle with the IO.

249. Mr Chow referred to para 62/1/6 at p 1102 of Hong Kong Civil Procedure 2013 Vol 1 to support his contention.  The relevant part of para 62/1/6 read as follows:-

“In the context of actions in tort, it does not matter that the claim against the successful defendant was not made in the alternative but was a separate and independent cause of action. Although a Sanderson or Bullock Order is unlikely to be made in a case of successive and unrelated torts by different tortfeasors causing different damage, whether tortfeasors jointly caused the same damage or whether they separately caused different damage or only one of them caused the damage may only be known after a final determination by court. In exercising its discretion whether or not to make a Sanderson or Bullock Order, the court would have regard to all the circumstances of the case and the state of the evidence to determine whether or not it was reasonable for the plaintiff to pursue the successful defendant in making its decision, the court must be careful not to lose sight of the uncertainties surrounding the case before its conclusion (per Bokhary J., as he was then, in Lee Lai Ha v Hong Sau Ling [1993] 1 HKLR 86).”

250. The fact that a defendant had said or done something to implicate a co-defendant is of course a relevant consideration for making a Sanderson or Bullock order but that was not the only relevant factor.  As Romer LJ pointed out in Sanderson v Blyth Theatre Company [1903] 2 KB 533 at 539 that:-

“The costs so recovered over by the plaintiff are in no true sense damages, but are ordered to be paid by the unsuccessful defendant, on the ground that in such an action as I am considering those costs have been reasonably and properly incurred by the plaintiff as between him and the last-named defendant [the successful defendant].”

251. In Besterman v British Motor Cab Company Limited [1914] 3 KB 181, the English Court of Appeal held that there was no rule to the effect that, in order to justify an order on an unsuccessful defendant to pay a successful co-defendant’s costs, the unsuccessful defendant had to, before the issue of the writ, have given notice to the claimant that he was going to throw the blame on the other defendant.  It was a question in all cases whether it was a reasonable and proper course for the claimant to join both the defendants in the action.  Swinfen Eady LJ stated in the Besterman case at 191-192 that:-

“There was a collision, the plaintiff said; in his claim he alleged injury to him so caused by the negligence of the defendants or one of them. It is obviously convenient that those two claims should be combined in one action arising out of the same set of circumstances and be tried together; and, in my opinion, it is in the interests of justice that the person who fails in an action brought under these circumstances should pay the costs occasioned by his negligence, including the costs reasonably and properly incurred by bringing the other defendant before the Court.”

252. If on the face of the transaction, the two defendants or one of them may be liable to the claimant’s claim, it is reasonable and proper for the claimant to sue both defendants in the same action.

253. In Mulready v JH & W Bell Ltd (N0 1) [1953] 2 All ER 215, Lord Goddard CJ stated at 219F that:-

“It does not appear to us that it [a Bullock order] is an appropriate order to make where a plaintiff is alleging perfectly independent causes of action against two defendants where the breaches of duty alleged are in no way connected the one with the other.”

254. In the third party proceedings in this action, the defendants claimed that Cheung Lee had damaged the Balcony in the course the Work but issued third party notices against both the IO and Cheung Lee.  In his affirmation in support of the issuance of the third party notice against the IO (see pp 359–361 of the trial bundles), the 1^st defendant stated the reasons for joining the IO as a third party as follow:-

“19. 基於上述理由，本人認為本人的單位露台漏水，是由祥利建築公司 [Cheung Lee] 的差劣工藝所引致。而由於松園業主立案法團 [the IO which name was subsequently corrected in the 1^st defendant’s another affirmation filed on 21 June 2010] 沒有以招標承投方式挑選工程公司，導致工程公司的質素沒有得到應有的評核。再者，法團主席沒有或拒絕督促祥利建築公司修補不妥善之處或完成未完的工程。因此本人現向松園業主立案法團申索分擔原告人向本人申索的任何款項或彌償，以及作出原告人所申索的濟助或補救。”

255. It could be seen that the defendants claimed against Cheung Lee for negligence and claimed against the IO for breach of statutory duty (for entering contract with Cheung Lee) resulted in engaging a contractor whose work quality had not been properly assessed and for failure in supervising Cheung Lee’s work.  In other words, the defendants claimed against the IO for engaging an incompetent contractor to do the Work and for failing to supervise the contractor.  On the face of the transaction, both the IO and Cheung Lee might be liable to the defendants’ claim.  The causes of action against Cheung Lee and the IO rested on precisely the same complaint, namely negligence in carrying out the Work at the Balcony.  The cause of action relied upon against the IO was connected with the cause of action against Cheung Lee.  It was reasonable for the defendants to claim against both the IO and Cheung Lee when the defendants issued the third party notices.

256. The 1^st defendant stated in his 2^nd supplemental witness statement that the defendants and the IO agreed to settle the dispute between them after negotiation between their respective legal representatives and the defendants agreed to pay $25,000 to the IO.  As the IO had no counterclaim against the defendants, the settlement payment paid to the IO could only be payment for the IO’s costs incurred in the third party proceedings.  If after considering the information obtained in these proceedings and taking legal advice, the defendants considered that it was not advisable to continue with their claims against the IO, it was not unreasonable for the defendants to settle with the IO by paying the costs of the IO.  In view of the development of the third party proceedings against the IO before the settlement, I am of the view that a sum of $25,000 for settling the IO’s costs incurred was reasonable.

257. I note that the authorities referred to above relate to costs of successful defendants found by the court after trial.  However, bearing in mind the underlying objectives of the civil justice reform which include to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings; to facilitate the settlement of dispute; and to ensure that the resources of the court are distributed fairly, I see no reason why reasonable costs paid by a claimant to a properly joined defendant by way of settlement cannot be recovered from the unsuccessful defendant through a Bullock order.

258. I am of the view that this is an appropriate case to make a Bullock order.  I allow the defendants’ claim for the sum of $25,000 paid to the IO.

259. I make a costs order nisi that Cheung Leedoth pay to the defendants the amount paid by the defendants to the IO in the sum of $25,000 and the costs of the defendants for this action both in the main action and in the third party proceedings (including all costs previously reserved) with counsel certificate, to be taxed if not agreed.

260. Mr Siu submitted that the defendants’ claim against Cheung Lee was within the jurisdiction of the Small Claims Tribunal and costs payable to the defendants should be taxed in accordance with the scale of the Small Claims Tribunal.

261. Mr Siu criticized the defendants for failing to disclose the settlement sums until the 1^st pre-trial review in May 2013.  He submitted that had the defendants disclosed the settlement sums in June 2011, it would have been clear that the defendants should not continue to pursue their claims in the District Court.

262. In this case, the defendants did not choose the District Court as the venue for these proceedings.  It was the plaintiffs who commenced these proceedings against the defendants in the District Court as the plaintiffs were claiming for injunctive relief.  When the claim of the plaintiffs was settled, the defendants still had to pursue the third party proceedings in the District Court as there is no statutory provision for the District Court to transfer actions in the District Court to the Small Claims Tribunal.  Furthermore, after the defendants settled with the plaintiffs and the IO, its claim against Cheung Lee was for $29,308 plus their costs already incurred in the District Court.  The defendants also claimed the settlement sum paid to the IO.  The total claim of the defendants amounted to $54,308.  Such claim exceeded the jurisdiction of the Small Claims Tribunal.

263. If the defendants try to claim the amount paid to the IO as a Bullock order in a claim against Cheung Lee in the Small Claims Tribunal, it is not without difficulties.  Without expressing any view, I would simply highlight a few matters which will come up in such proceedings in the Small Claims Tribunal.

264. If the defendants sue Cheung Lee in the Small Claims Tribunal after settling with the plaintiffs and the IO, the IO of course will not be named as a party to such claim.  If the IO is not a party to the proceedings, there will be doubt as to the legal basis for making a Bullock order in respect of costs paid to a non-party.

265. Furthermore, it is not without doubt whether the Small Claims Tribunal may make a Bullock order as part of its costs order when one looks into the relevant statutory provisions empowering the Small Claims Tribunal to award costs which is section 24 of the Small Claims Tribunal Ordinance (Cap 338).  Section 24 of the Small Claims Tribunal Ordinance provides that:-

“(1) Subject to subsection (2), the tribunal may award to a party costs and expenses, which may include –

(a) any reasonable expenses necessarily incurred and any loss of salary or wages suffered by that party; and

(b) any reasonable sum paid to a witness for expenses necessarily incurred and any loss of salary or wages suffered by him,

in attending the hearing.

(2) In making an award of costs under this section, the tribunal shall include a direction as to the amount to be paid by each party who is liable to pay costs.”

266. In this case, Cheung Lee had put forward a counterclaim against the defendants for $977,716.80 as stated in Cheung Lee’s answer to request for further and better particulars of the defence and counterclaim of the 2^nd third party (see pp 948-955 of the trial bundles) which counterclaim was not withdrawn until the pre-trial review on 3 May 2013.

267. Mr Siu said that the counterclaim by Cheung Lee would not have come into existence if the defendants had not unreasonably pressed ahead with its claims in the District Court after June 2011.  If what Mr Siu submitted was that Cheung Lee had fabricated or blown up its counterclaim to the ceiling of the District Court jurisdiction because the defendants pursued their claim against Cheung Lee in the District Court, Cheung Lee had to bear the consequence for its abuse of process.  It lies bad in Cheung Lee’s mouth to complain now that it has to pay costs on the District Court scale.

268. I see no reason why Cheung Lee should not pay costs to the defendants on the District Court scale.

269. The above costs order nisi shall become absolute after 14 days from the date hereof unless any party shall apply to vary the said order nisi within this 14 day period.