KO SUI MING AND ANOTHER v. WONG LAI CHU AND ANOTHER

DCCJ 983/ 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 983 OF 2006

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JUDGMENT

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1.  This is a claim by the Plaintiffs against the Defendants for damages, injunction and other relief. The claim proceeds on the basis that water has been leaking and continues to leak from the Defendants’ flat above to the Plaintiffs’ flat below. The claim alleges negligence, nuisance and breach of the Deed of Mutual Covenant by the Defendants. Defence Counsel concedes liability if the Plaintiffs succeed in proving that water did leak from the Defendants’ flat. It is clear law and Counsels agree that there is no presumption that water leaking or seeping into the flat below has its provenance from the flat above (see, for example, Cheung Sau Ling  v Ng Bing Hon and another (transliteration) CACV 268 of 1998 and Hui Ling Chun v Shiu Mak Ying and another, DCCJ 10294 of 2001). It is for the Plaintiffs to prove that water leaked from the Defendants’ flat. The Defendants do not have to prove anything. In particular, they do not have to prove that water leaked from a source other than their flat (see, for example, Hui Ling Chun, supra).

2.  I find the Plaintiffs failed to prove that water did leak from the Defendants’ flat. The claim is dismissed. Except for costs already provided for, I make an order nisi regarding costs to the effect that the Plaintiffs do  pay the Defendants’ costs with certificate for Counsel, such costs are to be taxed if not agreed. I will now give reasons for my decision.

3.  The Plaintiffs and the Defendants are neighbours in a multi-storey building known as Block 1, Finery Park, 7 Yuk Nga Lane, Tseung Kwan O. The Defendants live in Flat F on the 33^rd Floor immediately above the flat of the Plaintiffs. Nothing untoward has happened between these 2 families for some 5 years. In fact, the 2 families do not seem to have had any contact for that duration. This scenario of peaceful co-existence was invidiously interrupted sometime in November 2004 when the Plaintiffs noticed water stains and, indeed, the dripping of water from the ceiling of their guest bathroom (“the Bathroom”). The Bathroom was juxtaposed with the en suite bathroom (“the Toilet”) in the Master Bedroom with a partition wall (“the Partition Wall”) between. The dripping of water was to the extent of one drop of water a day. For unknown reasons, the situation abated by March 2006 to the extent that there would be only one drop of water every 2 days. 

4.  The Plaintiffs were understandably concerned with and irked by the water seepage. For the next 6 months or so, they complained to the Management Office of their building (“Management”), the Defendants, the Food And Environment Hygiene Department (“FEHD”), the Buildings Department and the Water Supplies Department.

5.  The government departments were unable to say that the water seepage originated from the Defendants’ flat. Management pointed its minatory finger at the Defendants and asked the Defendants to take remedial action. It is clear, however, that Management could not pinpoint the source of the problem. It seems that Management concluded the Defendants were responsible simply because the Defendants’ flat was immediately above the Plaintiffs’.

6.    The Defendants were not sure whether water had escaped from their flat to the Plaintiffs’ or, if so, the relevant location. The Defendants did, however, try to purge the Plaintiffs’ plight. They engaged plumbers to look at their flat and, as an exercise of caution, carried out work in their bathroom that was immediately above the Bathroom. The work was carried out on various dates from March 2005 to January 2006. Such work included changing the valves and pipes of the toilet bowl as well as applying sealant around its edges; changing the water-pipes and faucets for the hand-basin as well as applying sealant to various joints; converting the bathtub into a shower cubicle and, ultimately, replacing the toilet bowl altogether.

7.  The water seepage continued. The Plaintiffs engaged surveyors. The Defendants co-operated and allowed the Plaintiffs’ appointed surveyors to inspect their flat. The Plaintiffs engaged solicitors. Solicitors wrote letters of warning to the Defendants and threatened litigation. The Defendants engaged their own surveyor. Alas, the battle lines were drawn and the balloon had gone up. In February 2006 the Plaintiffs commenced the present litigation.

8.  The Plaintiffs engaged 2 firms of surveyors: Messrs. DCL Consultants Ltd. (“DCL”) and Dudley Surveyors Limited (“Dudley”). DCL conducted their survey of the flats of the parties on 25 and 30 August 2005. DCL’s report can be found in Trial Bundle D, page 1 to 12. The Plaintiffs later engaged Dudley which inspected the 2 flats on 17 January 2006 together with a technician from ETS-TESTCONSULTANT Ltd. (“ETS”). ETS subsequently made a report on their Rapid Infrared Thermographic Survey (“RITS report”. According to Mr. YUEN from Dudley [see paragraph 12 below], a special camera was used to scan surfaces, whatever captured by the camera would be input into a computer with a particular software programme, thermograms (images) would then be produced. From such thermograms, one could identify whether there was any water leakage).

9.   There is no need to refer to the report of DCL. The Plaintiffs’ case is not based on this report but on the reports by Dudley and ETS. These latter reports and a letter of clarification by Dudley can be found in Trial Bundle D, page 13 to 78 (ETS report at page 32 to 75).   

10.  The Plaintiffs say that the drainage pipes for the hand-basins in the Bathroom and the Toilet join inside the Partition Wall before exiting to the external wall. The Defendants do not dispute this stance of the Plaintiffs. The evidence established there were such pipes within the Partition Wall. DW2 agreed to the existence of such pipes. Based on the Dudley and ETS reports, the Plaintiffs insist that the source of evil is to be found within the Partition Wall viz. there is water leakage from the drainage pipe or pipes of the hand-basins within that wall (“Source of Leakage”).

11.  Mr. KO (“PW1”) of the Plaintiffs and Mr. KWAN (“DW1”) of the Defendants gave evidence. I do not think their evidence controversial. Indeed, I am still baffled as to why they had to spend so much time in the witness box.

12.  The key witness for the Plaintiffs was Mr. YUEN (“PW2”), Registered Professional Surveyor, from Dudley. PW2 was called as an expert witness. He conducted the inspection of the parties’ flats together with a technician from ETS. No one from ETS came forward as witness. The Defendants called as its expert witness Mr. PONG (“DW2”), Chartered Building Surveyor, Registered Professional Surveyor and Authorized Person. I accepted both PW2 and DW2 as experts in this case with regards to such matters as building structure, water leakage problems and their solutions.

13.  PW2 explained that he identified the Source of Leakage based on a) his own observations at the scene and b) the RITS report.  Despite PW2’s reference to his own observations, it is pellucid that he depended mainly on the RITS report. PW2 admitted so much in evidence. Counsel for the Plaintiffs conceded so much in final submission. Counsel was ready to concede that the Plaintiffs’ case rested on the RITS report.

14.  As already indicated, no one from ETS was called to give evidence before me.

15.  The infrared thermographic survey had to be carried out using certain equipment. I refer to the Method Statement of the RITS report (“Method Statement”, Trial Bundle D, page 74 to 75) which states:

“4.0 Equipment

4.1     An infrared scanning camera capable for recording surface temperature differences less than 1 °C…

4.2     Recording equipment capable of capturing the signal from the scanning camera and recording it on tape for subsequent analysis.

4.3     A computer with suitable image enhancing software to process and enhance the image.”

There was no evidence before me that in this instance the equipment used during the infrared thermographic scan and whatever equipment used for production of the thermograms were in good and proper working order or were calibrated as they should have been (see also paragraph 16 below).

16.  Certain procedures have to be followed in the conduct of the infrared thermographic survey. I refer, for example, to certain passages in the Method Statement:

“5.0 Survey procedure

…

5.3  Set the detection range so that the building surface temperature is approximately in the centre of the monitoring scale.

…

5.6 Enter value of emissivity of 0.93 into the scanning camera.”

Were these procedures followed? PW2 said that ETS had to input certain data into their computer system before thermograms could be produced from the infrared thermographic scanning. He admitted he did not know what data was required. He admitted that he did not know whether there had been correct input of data. I can only say that I am none the wiser.

17.  I do not think it a sufficient answer (to matters raised in paragraphs 15 and 16 above) to simply say that ETS is a government-accredited organisation and therefore can be relied upon.

18. PW2 said that the infrared thermographic scan would read radiation emitted by objects. In reading such radiation, the scan would also be able to determine the surface temperature of objects. Despite such insistence on the reading of radiation as the primary function, the evidence of PW2 tended to stress on the differences in surface temperatures captured during the scan. DW2 maintained that the scan was to read surface temperatures. I do not regard these 2 witnesses as experts in infrared thermographic scans or RITS technology. I refer to the RITS report (Trial Bundle D, page 34) which states: “Basically moisture penetration area is visible on the images as colder spots from infrared scanning camera due to the fact that moisture or air trapped beneath is a poor conductor of heat” (emphasis added). It seems to me that regardless of whether the infrared thermographic scan read mainly the emission of radiation with the reading of surface temperatures being a “by-product”, the RITS report was based on readings of (surface) temperatures.

19.  The infrared thermographic scan was carried out in 2 “distinguished conditions” each lasting 15 minutes. The 1st condition (“the 1^st condition”) was “Before turn on the water taps of bath tube barriers, shower and washing sink” at the Defendants’ flat. In the 2^nd condition (“the 2^nd condition”), all those water taps were “turned on and let the cold-water flows (sic) for 15 minutes” (see Trial Bundle D, page 34). Infrared thermographic scan was done to the ceiling of the Bathroom and the Toilet during each condition and thermograms were subsequently produced.

20.  The RITS report concluded that in thermogram number 24 and 25 taken during the 2^nd condition (Trial Bundle D, page 62 and 63 respectively) “some water penetration was detected on the structure” and that the “possible moisture penetration area” was approximately 500x100 mm each (see Trial Bundle D, page 36. The thermograms for the same areas scanned during the 1^st condition are thermograms number 7 and 8    in Trial Bundle D, page 44 and 45 respectively).

21.  It is not clear whether thermogram number 24 and 25 showed that part of the ceiling of the Bathroom beneath the Partition Wall (wherein was the Source of Leakage). Even if they did, I do not think the change in temperature of that part of the ceiling meant the embedded pipes were leaking. For all we know, the cold water inside the pipes (without leakage) may have already been sufficient to affect (lower) the surface temperature of the ceiling. Hence, thermogram number 24 and 25.  If these 2 thermograms showed areas some distance from the Partition Wall, then I would have expected them to show a more extensive affected area so as to include the route taken by the (allegedly) leaking water from source.

22.  In view of matters stated in paragraphs 14 to 21 above, I am not willing to give the RITS report and its conclusions any weight. I am not satisfied that the RITS report can be relied upon to prove (albeit on a balance of probabilities) the Source of Leakage. I find that the Plaintiffs have failed to prove liability on the part of the Defendants.

23.  A number of other matters were canvassed during trial. In   view of my decision just explained, there is no need to refer to them. I will, however, mention the following:

a)      A colour (or dye) test was carried out by FEHD on 20 December 2004 at the Defendants’ flat. Water samples were taken on 30^th of the same month and were subjected to laboratory test. FEHD was unable to conclude that water had leaked from the Defendants’ flat (see Trial Bundle D, page 196 to 197 and Trial Bundle E, page 54 to 55)

PW2 and DW2 held differing views on the efficacy of a colour test. To put it simply, PW2 was of the view that the test was not useful when one was dealing with embedded or concealed pipes. DW2 said that FEHD was staffed by professionals who would not carry out a colour test unless it was worth the while. DW2 went on to say that the laboratory test would show the existence of dye even if it were only 1 in a million parts.

Counsel for the Plaintiffs submitted that the colour test was conducted in December 2004 but the present claim referred to more recent events. I do not think events can be so dichotomised. I understood PW1 to say that the affected areas of the Bathroom ceiling remained about the same throughout (i.e. from November 2004).

Be that as it may, there is a lack of detail about the colour test. There is, for example, no evidence to show whether the proper amount of dye had been used or why water samples were only taken 10 days later (with the possibility that whatever dye in the water may already have dissipated). Given this unsatisfactory state of evidence, I cannot consider that the colour test proved there was no water leakage from the Defendants’ flat;  

b)      PW2 said that water could not have seeped/ leaked in from the external wall of the building. DW2 said that this possibility could not be discounted. DW2 pointed to a construction joint in the external wall between the 33^rd and 34^th Floors of the building. He said that with the aging of such joint, water could seep in.

Both PW2 and DW2 merely conducted visual examination (observation) of the external wall from inside either the flat of the Plaintiffs or the Defendants. I think it fair to say that neither considered mere visual examination sufficient. Both referred to various further tests to be conducted. Such tests included hammering on the external wall, close up observation from a scaffold, “water-test” and infrared test.

I give no weight to the views of PW2 and DW2 on water seepage from the external wall; 

c)      The family of the Defendants was away from home during Easter vacation 2005. Despite this, the Plaintiffs still found water dripping from the ceiling of the Bathroom. Defence submitted that since no one was at home to use the hand-basins in the Bathroom or the Toilet, the dripping water could not have proceeded from the Source of Leakage.

The dripping water could have been from water already accumulated in the ceiling, such water having proceeded from the Source of Leakage. It depended on how saturated with water the ceiling had become. One must remember that the dripping commenced some months earlier in November 2004 and had continued since. The fact that dripping continued when no one was in the Defendants’ flat over Easter cannot be viewed in the Defendants’ favour; and

d)      DW2 said that infrared thermographic scanning was not regarded as reliable in the building profession. He said that at most such scanning would be used to confirm an already identified source of water leakage. PW2 of course maintained that infrared thermographic scanning could be relied upon. PW2 and DW2 are entitled to their views. At the end of the day, however,  it is for the court to decide whether and to what extent to rely on the RITS report.

The learned Judge in Tai Wai Lam v Ho Ka Tung and another, DCCJ 17777 of 2001, refused to give any weight to the infrared thermographic report presented at trial. The learned Deputy Judge in Chung Che Shum and another v Dong Sai Ming Fernando and another, DCCJ 21504 of 2001, relied on such a report and proceeded to grant the relief claimed. I do not see here any conflict in the treatment of thermographic reports - whether a court relies on a particular piece of evidence depends very much on the content of that evidence and how it is presented.