KWOK KIT DITAU YEUNG suing by next friend THE OFFICIAL SOLICITOR v. KATHERINE ANNA ABRAT

HCPI 149/2022

[2025] HKCFI 2755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 149 OF 2022

(TRANSFERRED FROM DCPI 2004 OF 2020,

WHICH WAS TRANSFERRED FROM HCPI 970 OF 2018)

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J U D G M E N T

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1.  The plaintiff suffered from slip-and-fall injuries as a result of flooding caused by a broken water pipe connecting the toilet inside the bathroom of a rented residential flat. She claims against the defendant, who was the registered owner and landlord of the flat. The defendant denies liability, and holds the tenant of the flat responsible as the third party. This is the trial of the issue of liability.

Background

2.  The flat on the 5^th Floor of the residential building in Happy Valley, Hong Kong (“the Flat”) consisted of, amongst other parts, 2 bedrooms and 1 bathroom. The defendant (“Abrat”) became the registered owner of the Flat in 2007. The Flat had always been for investment and let out for rental income.

3.  In about September 2015, Abrat learned from her husband that Ms Cindy Yip Siu Mei (“Yip”) of View More Estate Agent Co (“View More”) had approached him with a view to introducing a potential tenant to rent the Flat. There was no prior dealing between Abrat or her husband and View More or Yip.

4.  In any event, negotiation through Yip commenced between Abrat as the prospective landlord and the prospective tenant without their actual meeting. On the prospective tenant’s side, it was Madam Kwok Pik Lin (“Kwok”). Kwok and Abrat or her husband did not know each other before. On the contrary, Kwok had engaged the service of Yip for previous tenancy matter.

5.  Through Yip as the intermediary, Abrat eventually entered into a provisional agreement for the tenancy of the Flat dated 7 October 2015 (“the PTA”). The term of the tenancy was 2 years commencing on 17 October 2015 until 16 October 2017, with vacant possession delivered upon the signing of the formal tenancy agreement on or before 16 October 2015.

6.  The PTA was prepared by View More using its template. It was signed by the parties to the tenancy and View More. Kwok signed the agreement for and on behalf of the third party (“Super Easy”) as the tenant. She was at the time the sole shareholder and director of Super Easy.

7.  On 16 October 2015, the parties entered into the formal tenancy agreement (“FTA”).

8.  There is no real dispute about the above background.

9.  Where a visitor was injured due to the state of a rented property during the term of the tenancy, one would have expected him or her to hold the tenant of the property responsible as the occupier, and, if causes in respect of that exist between the tenant and the landlord, the tenant to seek recourse against the landlord for contribution or indemnity towards his liability to the visitor. This does not happen in the present case. In fact, the person injured in the incident is the mother of Kwok (“the Mother”) with whom Kwok moved into the Flat. The Mother was then 80 years old.

10.  The incident happened in the early morning of 2 July 2016. The water pipe connecting the toilet bowl and the wall of the bathroom broke, causing water from the pipe to flow out and flood the Flat. The Mother allegedly slipped and fell in the course of wading across the living room and her bedroom. She allegedly injured her back and right wrist as a result.

11.  In September 2018, the Mother commenced action here by Kwok as her next friend (HCPI 970/2018), and was granted legal aid on such basis. Besides defending, Abrat holds Super Easy responsible as the tenant in possession, and thus the third party in this action.

12.  Whilst the Mother and Super Easy adopt the same stance, legal aid does not cover the latter in the third party proceedings. After ceasing to be legally represented, Super Easy has obtained leave of the court to be represented by Kwok as its director. She has since ceased to act at the same time as the next friend of the Mother in the claim. Hence the Official Solicitor’s stepping in for the purpose of locus.

13.  In May 2020, the action was transferred to the District Court by consent (DCPI 2004/2020). In May 2022, the action was transferred back to this level of court. Hence the present action.

14.  By the order of the master dated 1 June 2023, the issue of liability was split from that of quantum for trial.

The pleaded claim

15.  It is contended that Abrat, being the owner and landlord, was the occupier of the Flat within the meaning of the Occupier’s Liability Ordinance, Cap 314 (“OLO”) who owed a common duty of care to the Mother as a lawful visitor there at the material time. Similar duty not to be negligent is pleaded. Abrat was allegedly in breach of such duties in the following manner:

(1)  failing to take any or any reasonable care to see that the Mother would be reasonably safe in using the Flat as a lawful visitor;

(2)  causing or permitting the Flat to be flooded thereby exposing the Mother to a reasonable risk of injury;

(3)  failing to maintain the pipe in a good condition such that it would not cause hazard or injury to the Mother;

(4)  failing to engage any or any competent technicians to carry out regular inspection on the pipe;

(5)  causing and/or allowing the pipe to break thereby causing the Flat to flood and subsequently the Mother to slip and fall;

(6)  failing to prevent the pipe from breaking thereby causing the Flat to flood and subsequently the Mother to slip and fall;

(7)  failing to institute or enforce any or any adequate system for the inspection and maintenance of the pipe;

(8)  allowing and/or permitting the pipe to remain in a condition hazardous to the health of visitors to the Flat, including but not limited to the Mother;

(9)  failing to give the Mother any or any adequate or effective warning of the risk of flooding due to the pipe being damaged and/or mal-repaired;

(10)  failing to cause the flood to be cleaned up in a timely manner so as to ensure that no foreseeable risk of injury would remain in the Flat;

(11)  causing and/or permitting the Flat to be or to become or remain a danger and a trap to persons lawfully using the same, including the Mother.

The defence

16.  Abrat puts the Mother to proof of the cause and the circumstances of the flooding as alleged.

17.  Abrat denies that the Mother was a lawful visitor to the Flat within the meaning of the OLO. She contends that Super Easy, being the tenant, was the occupier for the purpose of the OLO at the material time whereas she was not. Hence duty of Super Easy to take care of the Mother and absence of duty on her part towards the Mother as alleged at the time.

18.  In any event, Abrat has allegedly discharged her duty to the visitors of the Flat during the tenancy. Specifically, she had at the request of Kwok caused various minor works to the Flat to be carried out by a competent contractor recommended by View More. However, no request was made by Kwok for the replacement of the valve, and the works did not include the replacement of the pipe or its valve. Kwok inspected the Flat after the completion of those works and before entering into the FTA.

19.  Abrat also pleads reliance on clauses 5, 10 and 16 of the FTA.

Clause 5

“The Tenant shall not assign, transfer, sublet or part with the possession of the Premises[1] or any part thereof to any other person. This tenancy shall be personal to the Tenant named herein.”

Clause 10

“The Tenant shall himself cover insurance including but not limited to for his own belongings against typhoon, depression, storm, flood, fire, theft and accidents in relation to this tenancy. The landlord shall not be responsible for any damage or loss under all circumstances.”

Clause 16

“The Landlord shall keep and maintain the structural parts of the Premises including the main drains, pipes and cables in reasonable state of repair provided that the Landlord’s liability shall not be incurred unless and until written notice of any defect or wear of repair has been given by the Tenant to and received by the Landlord and the Landlord shall have failed to take reasonable steps to repair and remedy the same after the lapse of a reasonable time from the date of receipt of such notice.”

20.  Abrat contends that no notice was ever given to her of any defect or wear of the water pipes or valve, and therefore request for repair, by Super Easy or Kwok whether before or after the signing of the FTA.

21.  In line with the contention that it was Super Easy which owed the duty as the occupier of the Flat to the Mother as its visitor at the material time, Abrat contends that it was Super Easy which was in breach of its such duty and its duty not to be negligent towards the Mother. Hence the incident. This also forms the basis for the third party claim by Abrat, in the event she is held liable, for contribution or indemnity against Super Easy.

22.  Abrat also pleads contributory negligence on the part of the Mother in failing to leave the Flat for a place of safety in the common area of the building, but instead proceeding to the master bedroom when she knew it was unsafe because of the flooded floor. The failure of Super Easy to request for the repair of the pipe or the valve in question in accordance with the FTA is also pleaded.

Issues

23.  Broadly there are the following issues:

(1)  cause of the breakage of the pipe/valve in question that brought about the flooding;

(2)  position of the Mother at the material time;

(3)  Abrat’s duty vis-à-vis the Mother, if any, at the material time;

(4)  Abrat’s alleged breach of her duty in causing the incident;

(5)  the Mother’s alleged contributory negligence in causing her injuries;

(6)  the rights and liabilities under the third party proceedings.

Witnesses

24.  Kwok gave evidence. So did Abrat, who also called Yip as a witness.

25.  With previous leave of the court, Dr Eric C H Lim, mechanical engineering expert engaged on behalf of the Mother (“the Expert”), has compiled his expert report on the physical cause of the breakage of the pipe/valve in question. Abrat and Super Easy elected not to adduce expert evidence on liability. The Expert testified at the trial.

26.  The principles governing assessment of a witness’ credibility are often cited. Essentially, the court will assess the inherent and relative consistency and plausibility of the oral evidence of the witness against the undisputed and indisputable facts as well as the contemporaneous documents: see Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors HCA 1734/2009 (8 April 2014) at §§77-81.

27.  Expert is here to assist the court instead of advancing the case for the party engaging him. His opinion is given in accordance with his brief formulated with reference to the specific issues calling for his opinion. The court will assess the soundness of, and attach appropriate weight to, the opinion upon consideration of its basis and the methodology of the expert in arriving at the opinion. See for instance Wong Siu Wa v Win Sino Engineering Limited [2018] HKCFI 1663 at §154. On the disputed issues, it is the court which will make its finding on the basis of all the evidence, the expert evidence being just part of it.

The flooding incident

28.  According to Kwok, at about 6:20am on the day in question, she was in the master bedroom when she heard knock on her door. Opening the door, she discovered the floor was flooded and the Mother lying on the floor. After settling the Mother in bed and summoning the ambulance, Kwok checked, and discovered that water was flowing out of the pipe connecting the flush water inlet inside the bathroom. The valve of the pipe was broken. The water flow finally stopped in 20 minutes after the intervention of the management office. The pipe and the valve in question are depicted in the photographs taken by Kwok subsequently on the day[2].

29.  According to Abrat, it was at about 7:05am on the day when she was alerted by View More to what just happened at the Flat. Abrat immediately contacted Kwok for the details. It was then when she came to know the presence of the Mother at the Flat. Abrat arrived at the building about 20 minutes later. By the time she met Kwok, the Mother had been hospitalized. Abrat arranged her domestic helper to come to help cleaning up the Flat and taking the soiled items to laundry. In the meantime, she arranged hotel booking as alternative accommodation for Kwok. Abrat also had the contractor recommended by the management office to come to do the necessary repair.

30.  In her email to Abrat on the day following the incident, Kwok, apart from expressing gratitude towards the swift action taken by Abrat as mentioned, attributed responsibility for the incident to the building management. What happened in the following days was largely evidenced by the subsequent email and WhatsApp correspondence between the parties concerned[3]. As of mid-July 2016, Kwok apparently maintained her belief that the building management should be responsible for the incident.

31.  Responsibility for the incident aside, the parties eventually agreed to early termination of the tenancy. On 22 August 2016, Kwok vacated from the Flat and returned the keys while Abrat refunded the rental deposit to Super Easy.

32.  There is no serious dispute about the above illustration of the incident and its aftermath. I find the same to be the fact.

33.  Observations are made about the above events. Amongst them, there is said to have been change of attitude on the part of Kwok particularly after the insurer of the building management denied liability to cover the alleged loss of her and the Mother. Hence the alleged redirection of her spearhead towards Abrat. In court, Kwok also sought to attribute the content of her emails mentioned above to her confusion after the incident. On the scale of things, these assertions and the incidental scepticism raised are all peripheral to the determination of the real issues.

Cause of the incident

34.  The fact is though at one point suggested by Kwok in the post-incident correspondence mentioned above, the breakage of the water pipe or valve inside the bathroom of the Flat at the time did not have real connection with the building management in terms of causation. Neither side suggested otherwise at the trial.

35.  In respect of why the pipe or valve in question broke, the Expert compiled his report dated 2 March 2020. The Expert recited in his report that he had been provided with the photographs of the valve in question after the incident as well as the receipts of the contractors attending to the renovation works before the FTA and the post-incident repair respectively. He had also consulted the correspondence between Kwok and the building management. He had examined the actual valve, which was retained and provided by Kwok after the incident. He then gave the following opinion.

36.  The valve was made of PVC material. Solvent cement commonly used to join PVC pipes together was used in this case. The cement possesses the quality of dissolving the surfaces of the mating parts to subsequently form a strong, rigid and water tight joint (assuming the joint is properly made). However, if excess solvent cement is used and not removed in time, the surface of the pipes affected may be dissolved to such an extent as to create localized weakness of the pipe.

37.  The Expert opined that solvent cement applied to join the hexagonal socket to the outlet of the valve in this case was excessive and not removed in time during installation. The solvent cement is believed to have induced attack and thus creating weak points and eventually cracking along those weak points as explained above. When the upper portion of the body of the valve was cracked through its thickness under some pulling force from the plastic tube connected to the water closet, the valve eventually broke.

38.  Abrat does not seriously dispute the above findings and observations made by the Expert in respect of the physical cause of the incident.

Position of the Mother

39.  The position of the Mother as the lawful visitor of the Flat at the material time for the purpose of the OLO is disputed.

40.  Where the Flat was let for residential use, it was only realistic to expect its occupation by people, and that Super Easy was a mere corporate vehicle used to enter into the tenancy arrangement. Kwok was the one signing the PTA and the FTA on behalf of Super Easy. Abrat does not deny knowledge or expectation that Kwok would move in to reside there. She only denies such knowledge or expectation insofar as the Mother was concerned.

41.  According to Abrat, the Mother was never mentioned in the entire course of the dealing before the FTA. As mentioned, she came to know the residence of the Mother at the Flat when she was alerted to the occurrence of the incident on 2 July 2016. That I find was the genuine state of knowledge of Abrat at the time.

42.  However, a person qualifies as a lawful visitor if his or her entry into or presence at the premises is not prohibited, and acquiescence to visit and presence is reasonably foreseeable. In the present case, such persons would include all those that Super Easy in the exercise of its right of exclusive possession of the Flat invited or allowed to enter and to be present there during the term of the tenancy. Such persons might stay or happen to be present at the Flat on a transient basis. The Mother must be one of those persons.

43.  As such, it matters not whether Abrat knew of the existence of the Mother at the time when the FTA was entered into. Nor does it matter whether the Mother actually resided or happened to be present at the Flat at the time when the incident took place. It could not be said that her presence as a visitor during the term of the tenancy was beyond reasonable foreseeability on the part of Abrat. On this basis, the Mother was a person to whom common duty of care to a lawful visitor could arise under the OLO, and to whom duty of care to a neighbour could arise as well.

44.  At this juncture, I would also address Abrat’s pleaded reliance on clause 5 of the FTA. It provided that the tenancy was personal to Super Easy as the tenant, and prohibited Super Easy as the tenant from assigning, transferring, subletting or parting with the possession of the Flat or any part of it to any other person.

45.  I see no relevance of this provision. As discussed, it must be the understanding of the contracting parties to the tenancy that the Flat would be occupied by natural persons. That per se did not entail assigning, transferring, subletting or parting with the possession of the Flat or any part of it by Super Easy. Between Kwok and the Mother, the latter had the former’s permission or licence to stay at the Flat, the possession of which was thus shared but not parted with for all intents and purposes.

Duty of Abrat in respect of the condition and repair of the pipe/valve

46.  That Abrat has let the Flat to Super Easy, and did not physically occupy the same during the term of the tenancy, per se did not absolve her from the duty in respect of its repair and condition. However, the nature and extent of her such duty during the term of the tenancy became regulated by the contractual terms of the tenancy.

47.  The Mother was not privy to the FTA and therefore not bound by those terms. Nor may she or Abrat enforce those terms against each other. That said, reference to those terms for the purpose of identifying the nature and extent of Abrat’s duty as the owner/landlord to the Mother, if any, does not infringe the principle of privity of contract.

48.  In this context, the court has emphasized the degree of control over the let property which is retained by the non-occupying owner/landlord. In Wong Huen Min v Wong-Kong Chong-Kam-Sau Tong Clansman Association Ltd & Anor DCCJ 6455/2004 (1 August 2007), the court applied the approach adopted by the Court of Appeal in Leung Tsang Hung & Anor v The Incorporated Owners of Kwok Wing House CACV 196/2004, and explained (at §10) that the question is whether there is sufficiency of control such as to render it reasonable to impose upon the person in whom there reposes that control the responsibility for the consequences of his failure to exercise it. The measure and the content of the non-occupying owner’s duty would depend on the extent of his control retained over the property. The importance of control lies in that the control affords the opportunity to know the premises, to become aware of dangers, and to remedy them.

49.  Since the commencement of the tenancy, and by its nature, Super Easy has acquired possession of the Flat to the exclusion of others, including Abrat as the landlord. The pipe and the valve in question were located at the bathroom inside the Flat under the use of Super Easy or, more precisely, the residents or the visitors brought in there by it during the term of the tenancy. Abrat could claim no unfettered right of entry to and access within the Flat during the term of the tenancy, be it for the purpose of repair or otherwise.

50.  Indeed, clause 11 of the FTA, which is not pleaded, provided that:

“The Tenant shall permit the Landlord as its agents with prior appointment with or without workmen or others and with or without appliances at all reasonable times to enter upon the Premises and to view the condition thereof … and to carry out any repairs to the Premises which the Landlord considers necessary or proper to be done.”

51.  Clause 16 of the FTA (above) prescribed the duty of Abrat as the landlord to maintain the structural parts of the Flat including the main drains, pipes and cables. Query whether the pipe and the valve in question connecting the toilet formed such structural parts of the Flat so as to fall within the ambit of duty of Abrat as the landlord to maintain pursuant to this clause. In any event, the clause provided that the liability of Abrat for failure to keep and maintain the parts stipulated therein in reasonable state of repair would not be incurred unless and until written notice of any defect or wear of repair had been given by Super Easy to and received by her, and she had failed to take reasonable steps to repair and remedy after a reasonable time had lapsed.

52.  Clauses 11 and 16 therefore share a common but crucial element in defining the extent of Abrat’s duty. It was the state of knowledge and reasonable foreseeability on the part of Abrat in relation to the condition of the relevant parts of the Flat which are said to require her attention. In the context of clause 16, such knowledge or foreseeability would have had to come about upon actual written notice from Super Easy. Through Super Easy as their corporate vehicle in becoming the tenant, Kwok and the Mother must be taken to know that. There is no contention or evidence of any suspected defect or failure of Abrat to respond to request for repair at any time between the commencement of the present tenancy and the incident.

53.  However, the Mother contends that Abrat in fact brought about the condition of the pipe/valve, and she knew or ought to have foreseen the risk of its breakage when letting the Flat to Super Easy in the first place. This is also the only basis on which her plea that Abrat caused or allowed or permitted the pipe or valve to be in a condition liable to break may be understood. This also leads me to look at the relevant law cited by counsel.

54.  Counsel started by referring to the old case of Cavalier v Pope [1906] AC 428 where the court stated the law that the landlord who let a property in a dangerous condition is not liable for accident caused by the condition to a third party permitted by the tenant to be present at the property (in that case the wife of the tenant).

55.  Cavalier (above) was not short of subsequent scepticism, particularly after the neighbourhood principle was introduced by the court in the landmark case of Donoghue v Stevenson [1932] AC 562. The duty became one of reasonable care owed to those who ought to be reasonably contemplated to be affected by the conduct or omission.

56.  The court in Rimmer v Liverpool City Council [1985] QB 1 confined the principles and ruling in Cavalier (above) to be understood in its own facts. Different from Cavalier, not only was the defendant council in Rimmer the provider of the property under tenancy, but it was in fact the designer and builder. Where the wife of the tenant was injured due to defective design and construction of the property known to the defendant, the latter would not be immune from liability in its capacity as the negligent designer/builder.

57.  In Drysdale v Hedges [2012] EWHC 4131 (QB), the premises let was purchased by the landlord with pre-existing potentially dangerous condition. The tenant slipped and fell in the course of moving things into the premises. The landlord was found to be not liable, considering that the factual circumstances were more akin to the applicability of the principles in Cavalier than those in Rimmer. Nevertheless, counsel refers to the comment of the court in that case that the landlord has a duty to take reasonable care to ensure its actions on the premises would not create an unnecessary risk of injury. Similar comment was made by the court in Dodd v Raeburn Estates Ltd [2016] PIQR P16.

58.  The above case law was recently looked into by the District Court in Cheung Hing v Roth Sons Estates Management Ltd [2024] HKDC 756.

59.  This was a tenancy of a furbished residential property. Kwok viewed the Flat in October 2015 before entering into the PTA. At the request of Kwok, the PTA provided in clause 14 that Abrat as the landlord agreed to move away all the furniture except for the fixtures, furniture and electric appliances itemised there. Clause 15 provided that Abrat further agreed to cause works to be done, including the fixing of malfunctioning lights, painting and cleaning, replacement of an air-conditioner and stove hood as well as wax-polishing of the floor. There was no reference to the bathroom or the pipe or the valve amongst the works agreed to be carried out under the PTA.

60.  The relevant receipts in respect of the above works show that they were carried out by different contractors and suppliers. Amongst them was Ming Kee Engineering (“Ming Kee”), which produced its receipt dated 8 October 2015 itemising the works eventually carried out by him. One of them was the repair of the toilet cistern.

61.  The case of the Mother is that the valve in question was installed by Ming Kee in the course of his work to the toilet then. In defence, Abrat denies that. She also avers that Kwok inspected the Flat after the completion of all the works, but no issue was brought to her attention by Yip or Kwok about the pipe or the valve in the bathroom before the parties entered into the FTA.

62.  Much is said about the case of Abrat in this respect, which has indeed undergone amendment.

63.  Of the 8 items of work recorded in Ming Kee’s receipt, one was “修理廁所水箱（更換入水及去水零件各一套）”. Some English translations were at one point scribbled next to each item of work on the document, and that of this item of work was “fix incoming & outgoing toilet system”. Both the Chinese and the English descriptions did not actually tell whether or not the work involved replacement and installation of the valve in question.

64.  In her original defence filed in 2018, Abrat somehow stated that this was replacement of the toilet flushing water pipe valve. In her first witness statement dated 2020, she made reference to Ming Kee’s receipt but somehow stated that this was repair and replacement of the valve to the incoming and outgoing toilet system.

65.  Abrat made her second witness statement at the end of 2020 correcting herself in this respect. She explained that she did not actually give instruction for replacement of the valve for the purpose of the tenancy with Super Easy in 2015. As explained by those acting for her then, Ming Kee’s receipt also did not refer to the replacement or installation of the valve in the work to the toilet. What the receipt recorded, according to the certified English translation, was the repair of the toilet cistern (replacement of 1 set of water inlet and 1 set of water outlet parts). She therefore amended this aspect of her pleaded case with leave in early 2021.

66.  Not surprisingly, Abrat was cross examined in this respect at the trial. Amongst others, she was adamant that she never actually gave instruction to replace the valve. She was only given the understanding by Yip that there was problem with the toilet which needed fixing, which she approved. Her evidence impresses me that she had the faintest idea about how Ming Kee carried out the work to the toilet in 2015 as a matter of fact.

67.  Independently, the Expert in his report, as mentioned, observed that it was impossible to identify whether the valve in question was installed by Ming Kee. Nor was it possible to estimate from the condition of the joint or assembly the duration by which the valve had been in place. He concluded that it was impossible to determine when the valve was installed. He did so after considering amongst other evidence Ming Kee’s receipt.

68.  Yip claimed no personal knowledge whether the valve in question was installed by Ming Kee. She was unable to recall details in her evidence in court. For what is worth, she testified that her subsequent enquiry with Ming Kee confirmed that no replacement of valve was involved in the work to the toilet cistern.

69.  The proprietor of Ming Kee was not called as a witness. This gives rise to the submission on behalf of the Mother inviting this court to draw adverse inference against Abrat on the issue of whether Ming Kee installed the valve in question.

70.  The principles of adverse inference explained in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 were summarised by the local appellate court in Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22 (at §§31-36) as follows:

(1)  The principles do not constitute a presumption. Mere failure of a party to call a witness does not automatically confer an evidential benefit on the other party.

(2)  Whether any inference is drawn will depend on the quality of the primary facts on which the inference is based. The primary facts must allow the inference as logically flowing from those facts.

(3)  It is the judge’s discretion which will be exercised only if it is appropriate to do so. It will not be appropriate if the absence of the witness is explained.

71.  Tjang Siu Thu was cited in Mohammad Rafiq v Kin Hong Transportation Co Ltd [2023] HKCA 185, which was in turn applied by the court in Moorthy Selvaraj v Karupayee Ammal & Ors [2024] HKCFI 403. In this latest case, the court further explained that there must be a case to answer before an inference can be drawn from a defendant’s decision not to call a witness to rebut it. Importantly, even then it does not necessarily follow that such an inference can be drawn, as a defendant may proceed by demonstrating that, notwithstanding pleadings and witness statements, what appears to be the prima facie case cannot be proved on the balance of probabilities and therefore the defendant need not call any evidence.

72.  In my judgment, resort to the principles of adverse inference is misplaced in the circumstances of the present case.

73.  As explained, adverse inference comes in play only where a certain prima facie state of affairs already afforded by the evidence can be held against the party who is fairly expected to be in a position to adduce evidence or to call a witness to rebut the same, if that is his stance, but fails to do so for no good reason. Insofar as the Mother’s case is that the valve in question was installed by Ming Kee in 2015, the evidence does not actually support that as the prima facie case which the court should therefore find as the fact in the absence of rebuttal evidence, which Abrat should be in a position yet failed to adduce.

74.  As discussed, none of Kwok, Yip or Abrat was in a position to say as a matter of personal knowledge whether Ming Kee installed the valve in question. Contemporaneous documentary evidence and the independent expert after studying the available evidence, including Ming Kee’s receipt, do not manage to improve the evidential basis for finding or inferring the Mother’s case as the prima facie case.

75.  Abrat, as she was in a position to do so, did testify as to the circumstances and the amendment of her case in this respect. Hence not a case of lack of evidence from Abrat. Admittedly the proprietor of Ming Kee should have been in a position to cast light on this issue. However, neither side may claim property in him as a witness. Nothing prevented the Mother from seeking to call him.

76.  The lack of oral evidence from the proprietor of Ming Kee may be taken into account in assessing the reliability of the evidence of Abrat in respect of this factual dispute. However, the inference which this court is being invited to draw in these circumstances would effectively reverse the burden of the Mother to substantiate this aspect of her case.

77.  Abrat could only plead what she gathered about the works done to the Flat in 2015. Considering her evidence, I accept that she did not in fact possess first-hand or actual knowledge about the technical specifics in this respect. I find the incidental confusion and the clarification by Abrat which caused her to amend her original pleaded case and witness statement in this respect to be truthful.

78.  I find it is inappropriate to draw the adverse inference requested by the Mother in respect of whether the valve in question was in fact installed by Ming Kee in his work to the toilet in 2015. I find that she fails to prove that as a matter of fact.

79.  On behalf of the Mother, the Expert was actually instructed for his further opinion on the basis that the valve was not installed immediately before the tenancy in question in 2015. Specifically, the question was whether the valve, if pre-existing, could remain functioning since Abrat became the registered owner of the Flat in 2007 without any obvious cracks in view of the invasion by the excessive solvent cement applied when it was installed.

80.  The Expert rendered his further report dated 30 November 2021. The Expert explained that many possible factors could affect how long a fitting damaged by excessive solvent cement when installed could have lasted, and these factor could not be listed exhaustively. In the present case, many such factors were uncertain, such as how the pipe was installed, whether the pipe had been subject to repeated pressure fluctuation from regular use of the toilet over the period concerned and whether Ming Kee did any work on the water closet and affected the stress induced by the plastic tube on the valve fitting.

81.  The Expert suggested that if one assumes that the water closet had been under regular usage, and Ming Kee did not induce any additional stress to the pipe during his work, and there was no disturbance to the pipe over the period by any other party, so that the stress that caused the final cracking was more or less similar throughout the years since 2007, he would believe that the likelihood of a cement solvent damaged valve fitting as that in the present case being able to last for 8 years is low.

82.  That said, the Expert concluded that the available evidence was insufficient to conclusively determine whether or not the valve fitting that had been damaged by excessive solvent cement could have lasted for more than 8 years.

83.  On behalf of the Mother, it is argued that if the valve was not installed by Ming Kee in 2015 but pre-existing by the time of the present tenancy, Abrat was still in breach of her duty to properly inspect and maintain the same so far, and thus allowing the same to end up breaking and causing the incident during the term of the present tenancy.

84.  In my judgment, the Mother does not manage to establish liability on the part of Abrat either on the basis that the valve in question was installed by Ming Kee, which as discussed is not proved, or on the basis that Abrat failed to maintain the valve in question if it was pre-existing by the time when the present tenancy commenced.

85.  Assuming for argument’s purpose that the valve in question was installed by Ming Kee for the purpose of the present tenancy to Super Easy in 2015, I say it does not follow from the breakage of the valve in question for the reason explained by the Expert that it was installed below reasonable professional standard.

86.  The Expert observed that the valve belonged to a brand commonly available in Hong Kong and widely used in plumbing works. The Expert also observed that the application of solvent cement to adhere PVC pipes together was common. In other words, there was nothing unreasonable about the choice of the type and brand of the valve or the method of installation.

87.  The Expert’s adverse observation concerns the specific aspect of application of the solvent cement in the process. Essentially too much solvent cement was applied but not removed in time. The excess solvent cement affected and thus creating localized weakness and stress concentration points along the joint or junction. That said, the Expert explained in court that he was in fact not surprised about such workmanship in the industry.

88.  Insofar as the workmanship issue gave rise to the risk of eventual breakage of the valve, the Expert explained that the time that would be taken to cause a valve in such condition to break would depend not only on the extent of damage induced by the amount of excess solvent left there but also on the actual pulling force exerted by the plastic tube on the valve. However, the Expert was unable to work out the possible pulling force that was in place in the present case.

89.  Therefore, whilst the Expert provided his opinion on the physical cause of the breakage of the valve in question and the probability of crack on the pipe/the valve in question induced by the excessive solvent cement applied during installation, his evidence does not suffice in substantiating whether Ming Kee, doing the work in the manner he did, ought to have reasonably foreseen the risk of the existence of the combination of factors referred to by the Expert in order to cause the breakage of the valve which took place some 8 months afterwards.

90.  Even assuming that the risk was reasonably foreseeable on the part of Ming Kee, it is unrealistic to suggest that Abrat had any idea or basis for suspicion about the state of the pipe/valve in question so installed as a matter of fact. The same may actually be said about Kwok too, as she never claims having noticed or suspected any problem with the pipe or valve in question before the incident. See for instance, Cheung Hing (above).

91.  This leads to the related consideration of whether Abrat was already negligent in engaging Ming Kee in the first place.

92.  Section 3(4)(b) of the OLO provides:

“In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)-

where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.”

93.  The above provision speaks of the test in the context of an occupier’s common duty of care, which is not inapplicable in the context of the property owner’s vicarious liability for his independent contractor’s negligence: see also Ferguson v Welsh [1987] 1 WLR 1553 at 1560 at1564; Orient Trading House & Anor v Kat Tak Investment Co Ltd & Anor [1980] HKLR 513 at 521.

94.  Much is said about the lack of step taken by Abrat to satisfy herself about the competence of Ming Kee before engaging him to carry out the work in 2015. However, it should be noted that Ming Kee was engaged to carry out the various items of works recorded in its receipt, of which the repair of the toilet cistern was just one. Kwok agreed to enter into the FTA. In her evidence, she stated her belief when moving into the Flat that it was in good repair after the renovation. All those came after her post-work viewing of the Flat, noticing no issue of concern. There is no basis or evidence to suggest otherwise insofar as Abrat is concerned at the time. The fact was there was no complaint or actual problem about the workmanship of those works done by Ming Kee, except for the incident caused by what is now found to have been wrong about the valve some 8 months afterwards.

95.  It is in fact incorrect to say that Abrat took no step to ascertain the competence of Ming Kee before his engagement to carry out those works. This was to begin with a tenancy dealing through the intermediary of Yip of View More, which served as the estate agent of both sides to the then proposed tenancy. After viewing the Flat with Yip, Kwok requested renovation and repair works to be done. Yip accordingly relayed the request to Abrat, who acceded to it. That kind of interaction sounds typical in a case of a new tenancy of a furbished property under negotiation in the local rental market. Upon that, Abrat entrusted Yip to arrange the necessary renovation and repair works to be done.

96.  Abrat in her own profession was far removed from knowledge about the technical work. It should be noted that the works as recorded in Ming Kee’s receipt were essentially basic refurbishment and minor repairs in nature. They were by no means structural or complicated, which might otherwise have raised concern about the specific qualification and competence required of the contractor to be engaged. One therefore queries whether it was below reasonable prudence for Abrat to entrust to the estate agent, which was in the business and all along involved in the dealing between the parties, to engage a contractor known to the agent on behalf of its client, ie Abrat, to carry out those works to the satisfaction of the agent’s other client, namely Super Easy (Kwok). The circumstances materially differ from Wong Mee Wan v Kwan Kin Travel Services Ltd [1996] 1 WLR 38 borrowed for analogy by counsel for the Mother. In that case, the defendant in fact contracted to provide the package tour service, but decided on site to engage a local third party contractor to provide part of it, which it did so negligently.

97.  On this, it is suggested on behalf of the Mother that the engagement of another contractor other than Ming Kee to carry out the repair after the incident indicated Abrat’s recognition of the lack of competence of Ming Kee. The inference, in my judgment, again cannot be so drawn. The evidence suggests that Abrat did not cast much of her mind as to whether or not Ming Kee should be engaged at that point. The contractor was then recommended by the building management, which was already intervening at the time. Abrat was given to understand that the contractor was in the neighbourhood so that the contractor was approached to take up the task. That was pragmatism called for in the then circumstances, which is understandable. That was not unreasonable.

98.  Considering the question in the above context and circumstances, I find that it was not unreasonable for Abrat to have entrusted to Yip to engage a contractor, instead of making personal enquiry or locating one by herself, to carry out the works requested by Kwok. Nor was it unreasonable for Abrat not to check with the estate agent about the qualification or competence of the contractor before his engagement.

99.  As to the alternative scenario that the valve in question was not installed by Ming Kee in 2015 but pre-existing, liability of Abrat as the owner of the Flat and person in control of the same would still have had to depend on her state of knowledge and reasonably foreseeability of the risk of its breakage.

100.  According to Abrat, when the Flat was not let, she had gone to view the condition of the Flat generally. The evidence of the Expert discussed above and elaborated in court fails to suggest that Abrat either knew or ought to have known the workmanship problem affecting the valve or the latent risk of breakage so created. Nor does his evidence suffice to suggest that such risk should have already manifested itself and become patent from the apparent condition of the pipe or the valve in the form of cracking or peeling off of parts, which should be visually detectable by Abrat before the present tenancy. There is no evidence of prior event alerting her to such risk before the present tenancy. Nor is there evidence that anything of that sort was observed by Kwok or Yip when viewing the Flat before the former entered into the tenancy either.

101.  Absent basis for concern about the condition of the pipe or the valve in question, reasonable duty on the part of Abrat, be that as an occupier at the time or owner generally, in my judgment did not require her to have had to go beyond visual inspection of the Flat when it was not occupied before the present tenancy.

The alleged breach

102.  A crucial element in the equation of founding liability of a landlord to a visitor of the let property is the state of knowledge and reasonable foreseeability on the part of the landlord of the risk of personal injury arising out of the condition of the property, be it pre-existing or created by what the landlord did at any stage. Such state of knowledge and reasonable foreseeability must be established as a matter of fact. This, amongst others discussed above, I find is what the Mother fails to prove for the purpose of attaching liability on Abrat in causing the incident and her resultant injuries.

103.  The Mother, I find, does not manage to attribute liability to Abrat on the basis of the latter’s duty as an occupier of the Flat at the material time for the purpose of the OLO. Nor does she manage to do so on the basis of negligence on the part of Abrat.

Contributory negligence

104.  The crux of the contention in respect of contributory negligence is that the Mother ought not to have gone to the master bedroom during the flood, and should have left the Flat for a place of safety.

105.  Realistically, it is not reasonable to attribute blame to the Mother for merely moving around the Flat during the flood when there could be all sorts of reason for doing so, including coping with the then situation. In any event, seeking help or leaving the Flat for somewhere safe would have entailed moving around the floor then in a flooded state. In the absence of proof of extraordinary manoeuvre or blatant lack of care for their own safety in moving around the Flat, I am not satisfied that the Mother could be blamed for negligently contributing to her fall and injury.

106.  Therefore, and for completeness, I find no contributory negligence on the part of the Mother.

The third party claim

107.  Upon the above verdict on the liability issue, there lacks the basis for proceeding to consider the third party claim.

Conclusion and order

108.  The claim is dismissed. In the circumstances of the present case, I make no order, including no order as to the costs, in respect of the third party proceedings between Abrat and Super Easy.

109.  I make a nisi order that the Mother shall pay Abrat her costs of both the action and the third party proceedings, including any costs reserved, which shall be taxed, if not agreed. The Mother’s own costs shall be taxed in accordance with legal aid regulation. In the absence of application within 14 days to vary, the nisi order shall become absolute without further order.