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DCCJ 1224/2016
[2021] HKDC 211
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 1224 OF 2016
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BETWEEN
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WONG MEI YUK (黃美玉) |
Plaintiff |
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and
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THE INCORPORATED OWNERS OF LOWER WONG TAI SIN (1) ESTATE |
Defendant |
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Before: Deputy District Judge David Chan in Court
Dates of Hearings: 13 to 16 August 2019, 19 August 2019 and 18 October 2019
Date of Judgment: 26 February 2021
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JUDGMENT
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INTRODUCTION
1. This is a claim brought by Madam Wong Mei Yuk (the “plaintiff”) against the Incorporated Owners of Lower Wong Tai Sin (1) Estate (the “defendant”) for damages suffered due to 3 episodes of foul water backflow from a flush toilet located in the plaintiff’s flat.
2. At the trial, the plaintiff was represented by counsel Mr Ray Kwan (“Mr Kwan”) and the defendant was represented by counsel Mr Wong Cho Lik (“Mr Wong”).
THE PLAINTIFF’S PLEADED CASE
3. The plaintiff is the registered owner of Flat 09, 20th Floor, Lung Chat House, Block 9 (“Flat 2009”), Lower Wong Tai Sin Estate (the “Building”) No 3 Tai Shing Street, Kowloon (the “Estate”). The defendant is the Incorporated Owners of the Estate, including the Building.
1st flood
4. On 7 June 2010, the Flat 2009 was flooded by foul water (the “1st Flood”). The 1st Flood was caused by a backflow of foul water from the water closet located inside the lavatory of Flat 2009. On the same day, the plaintiff reported the 1st Flood to the Building’s manager, and requested for remedial work to be done by the defendant.
5. On 8 June 2010, a manager of the defendant attended Flat 2009 and discovered that the 1st Flood was caused by a mop inside and blocking the main iron soil pipe, which connected the water closet of Flat 2009 and the water closets of the flats above and below it (the “Iron Soil Pipe”). Remedial work was immediately performed on the Iron Soil Pipe. The contractor removed a section of the Iron Soil Pipe (“Removed Section”) inside Flat 2009 which caused the blockage, and replaced the Removed Section with a PVC pipe (the “2009 PVC Pipe”), which has the same diameter as the Removed Section. The 2009 PVC Pipe was attached to the remaining part of the Iron Soil Pipe connecting to Flat 09 on 19/F (“Flat 1909”). The top and bottom joint areas of the 2009 PVC Pipe and the remaining part of the Iron Soil Pipe was secured and affixed by metal rings. The bottom joint area of the 2009 PVC Pipe and the Iron Soil Pipe was hidden underneath the floor slab.
2nd flood
6. On 14 August 2014, at about 4 pm, the plaintiff discovered that Flat 2009 was again flooded with foul water (the “2nd Flood”). The flood covered the entire Flat 2009, affecting the flooring, the walls, the furniture, the appliances and other miscellaneous items. The plaintiff alleged that the 2nd Flood was caused by the backflow of foul water from the water closet inside the lavatory of Flat 2009.
7. Although the 2nd Flood was reported to the manager of the defendant on even day, and numerous telephone calls were made by the plaintiff to the manager from 16 to 19 August 2014, no remedial work was carried out to rectify the situation.
8. Then on 19 August 2014, a letter was issued by the plaintiff to the manager, requesting for investigation and repair work to be performed, and for damages to be paid (the “Letter”). Still, no remedial action was taken by the defendant until after the next episode.
3rd flood
9. Another flood occurred on 25 August 2014 (the “3rd Flood”). Foul water flooded the entire Flat 2009, and even spilled out to the common corridor and the lobby of the 20th floor of the Building. As a result, the flooring, the walls, the furniture, the appliances and other miscellaneous items inside Flat 2009 were soaked yet again with foul water. It was discovered that the 3rd Flood was caused by the backflow of foul water from the water closet inside Flat 2009.
10. The plaintiff reported the 3rd Flood to the manager on the same day. The defendant arranged staff to vacuum away the foul water inside Flat 2009, from the common corridor and the lobby of the 20th floor.
11. On 26 August 2014, the manager arranged for a plumber to perform the remedial work. The plumber removed the Iron Soil Pipe inside Flat 1909 which was connecting up to Flat 2009, and also the 2009 PVC Pipe. It was revealed that a towel was clogged inside the junction between the 2009 PVC Pipe and the Iron Soil Pipe. As the Iron Soil Pipe was eroded by rust and was in dilapidated condition, the plumber replaced the Iron Soil Pipe at Flat 1909 with a new soil pipe. The plumber also installed a new soil pipe in Flat 2009.
12. The plaintiff alleged that the 2nd Flood was caused by the accumulation of residual materials inside the Iron Soil Pipe, clogging the same. As the Iron Soil Pipe remained clogged after the 2nd Flood, and/or it was in such a dilapidated condition, it was prone to blockage when objects were disposed into the same by other occupants in the Building. If the defendant had inspected the Iron Soil Pipe after the 2nd Flood, it would have discovered the cause of the blockage, and/or taken remedial action, and/or replaced the Iron Soil Pipe inside Flat 2009. In doing so, the 3rd Flood could have been avoided.
13. For the said reasons, the plaintiff accused the defendant of breaching of its duties under the Deed of Mutual Covenant (“DMC”), in particular clauses 20(g), 20(j)(1) and (2). The clauses read as follow:-
“(g) To repair and keep in good repair and condition the Common Areas and Facilities and all buildings equipment apparatus services facilities within the Estate and when necessary to replace any part thereof which requires replacement provided that the Manager shall not effect any improvement to facilities or services which involves expenditure in excess of 10% of the current annual management budget except with the prior approval of the Owners’ Committee or the Owners’ Corporation (if formed).
……
(j) To keep in good repair and condition –
(1) all water pumps pumphouses tanks mains pipes sewers lavatories drains water-courses cables wires apparatus and equipment which are now or may at any time hereafter be in under or within the Estate or the land adjacent thereto which are wholly or partly for the common use of the Owners and occupiers of the Estate;
(2) the drains and channels whether within the boundaries of the said land or the land adjacent thereto or on Government land which the Owners are required by the said lease to construct and maintain to the satisfaction of the Director of Lands;”[1]
14. It is also suggested that the defendant was in violation of sections 18(1) and 34I of the Building Management Ordinance, Cap 344 (“BMO”). Section 18(1) provides:-
“The corporation shall –
(a) maintain the common parts and the property of the corporation in a state of good and serviceable repair and clean condition;
(b) carry out such work as may be ordered or required in respect of the common parts by any public officer or public body in exercise of the powers conferred by any Ordinance;
(c) do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building.”
15. Whereas section 34I of the BMO stated:-
“(1) No person may —
(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any);
(b) use or permit to be used the common parts of a building in such a manner as—
(i) unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or
(ii) to cause a nuisance or hazard to any person lawfully in the building.
(2) Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”
16. In addition, the plaintiff blamed the happening of the 1st to 3rd Floods on the negligence of the defendant, its servants or agents. Moreover, she said that the defendant should be liable in nuisance.
17. For her loss due the 1st to 3rd Floods, the plaintiff claims a total of HK$233,900.
THE DEFENDANT’S PLEADED CASE
18. There is no dispute that the defendant is and was, at the material times, the Incorporated Owners of the Building. The day-to-day management and maintenance of the Building, however, was delegated to Nice Property Management Limited (“Nice Property”).
19. The defendant has no quarrel with the clauses in the DMC as cited by the plaintiff. The duties imposed under the BMO and relied upon by the plaintiff are also undisputed. But the defendant added that under clause 29 of the DMC, the manager shall not be liable for any defect in or failure or breakdown of any of the common areas and facilities, or flooding or fire or the overflow or leakage of water from anywhere within or outside the Building, unless it can be shown that such damage, loss or injury was caused by an act or the omission of the manager involving negligence.
1st Flood
20. Regarding the 1st Flood, the defendant received a report on 7 June 2010 at about 5:30 pm, and Nice Property forthwith sent a staff to Flat 2009 for inspection. On 8 June 2010, Nice Property arranged for a contractor to conduct further inspection and to perform remedial work at Flat 2009. It was revealed that the Iron Soil Pipe was blocked by a mop head. The said contractor then cleared the blockage, removed a section of the Iron Soil Pipe, and replaced the Removed Section with the 2009 PVC Pipe.
21. Thereafter, no similar report of overflow or blockage was received from the plaintiff for the ensuing 4 years from June 2010 to August 2014.
2nd Flood
22. Turning to the 2nd Flood, Nice Property received report of the same on 14 August 2014 at about 4 pm. It immediately sent its staff to Flat 2009 for inspection. At that time, the plaintiff expressed that she had not been to Flat 2009 since the week prior, thus she did not know when exactly and how the 2nd Flood occurred. In any event, the alleged cause of the 2nd Flood, ie backflow from the water closet, had ceased by then.
23. On inspection, it was found that the water closet and sewage pipe was functioning properly and efficiently with no blockage. The staff tested the same by depositing a piece of toilet paper into the water closet. The toilet paper was flushed away smoothly, without any sign of blockage.
24. On the same day, Nice Property also arranged for cleaners to assist the plaintiff in the cleaning of Flat 2009.
25. The defendant said the plaintiff had neither telephoned Nice Property on 16 August 2014, nor was her call unanswered. Conversely, a staff of Nice Property had telephoned her on 16 August 2014, during which the plaintiff informed the staff that things were normal and that she would provide Nice Property with information about her loss and damage so that it could pass that onto the insurer. Between then and 23 August 2014, there were numerous telephone conversations between the plaintiff and the staff of Nice Property regarding the former’s intended claim. The defendant added that, during the said period, there was neither indication from the plaintiff that the flush toilet was not functioning properly, nor was there complaint that she did not get any response from Nice Property. And the Letter focused only on her claim for compensation for the 2nd Flood.
3rd Flood
26. At about 9:27 pm on 24 August 2014, Nice Property received a report from the plaintiff’s neighbour that there was water flowing out from Flat 2009. The staff whom was dispatched to the scene confirmed the accuracy of the report. The staff knocked on the door but to no avail. Telephone calls made to the plaintiff were in vain. The staff therefore took emergency actions, including: turning off water supply to Flat 2009; laying sandbags at its door; cleaning up the corridor and lift lobby of 20th floor; placing wet floor signage; and informed occupants of the neighbouring flats about the 3rd Flood.
27. In the meantime, the staff of Nice Property continued with their unsuccessful attempts to contact the plaintiff via telephone calls, voice messages, text messages to the plaintiff’s mobile phone, and emails. They had again knocked on the door of Flat 2009 to check if the plaintiff had returned, and leaving written note thereat as she was not there.
28. On the night of 25 August 2014, Ms W S Hsu (“Ms Hsu”) of Nice Property received a WhatsApp message from the plaintiff, claiming that she had just returned to Hong Kong from the Mainland. Ms Hsu urged her to return to Flat 2009 immediately, and she eventually did at 11:20 pm. Nice Property dispatched its staff to help the plaintiff in cleaning Flat 2009, and to vacuum away the liquid from its interior.
29. On 26 August 2014 at about 10 am, Nice Property arranged for a plumber to conduct inspection at the scene. It was revealed that the blockage was caused by considerable amount of cloth pieces, rather than a towel, being dumped into the sewage. After the inspection, remedial work was carried out on the same day. The plumber unblocked the soil pipe, and removed sections of the soil pipe inside Flat 2009 and Flat 1909, and replaced those with new pipes.
30. The defendant denies that the blockage happened at the joint of the 2009 PVC Pipe and the Iron Soil Pipe as alleged. It is also denied that the Iron Soil Pipe was eroded with rust or was in a dilapidated condition. Furthermore, the defendant rejected the suggestion that the Iron Soil Pipe remained clogged after the 2nd Flood and that the same was in a dilapidated condition which rendered it prone to blockage.
Liability
31. On the subject of liability, the defendant admits that it had the duty to maintain the common parts of the Building, though such duty is one to act reasonably in the circumstances. In the discharge of such duty, and in particular regarding the common pipes, the defendant had: (1) posted up notices at the lobby of the Building reminding residents not to discard foreign objects into the water closets or sewage pipes, and of the danger of blockage; (2) inspected sewage pipes and water closets inside residential units upon report of suspected blockage; (3) acted expeditiously to clear blockage or remove obstruction of sewage pipes if necessary; (4) rendered proper and adequate remedial and/or repair works on the sewage pipes to be done when necessary; (5) took all reasonable steps to maintain and manage the Building, in particular the sewage pipes and drainage system as a whole.
32. On 11 January 2011, the plaintiff lodged a claim in the Small Claims Tribunal against Nice Property for damages in respect of the 1st Flood.[2] The claim was subsequently settled on a without admission of liability basis in the sum of HK$2,500.[3] Hence, the defendant stressed, the plaintiff is barred from bringing a claim based on the 1st Flood again.
33. In reply to the accusations made by the plaintiff, the defendant denies that itself or its servants had been negligent. As to the 2nd and 3rd Floods, it is denied that they were associated with any previous floods or any alleged malfunctioning of the Iron Soil Pipe, even if they might be found to have occurred at Flat 2009. In addition, the defendant neither knew or ought to have known about the 1st to 3rd Floods before the time they were actually reported to Nice Property.
34. Further to the above, the defendant seeks reliance on clause 29 of the DMC to exclude its liability in the present claim.
35. Finally, the defendant claims that the plaintiff was solely responsible for, or contributed to, her own misfortunes, by being away from Flat 2009 for an extended period of time and could not be reached. For the 3rd Flood, the plaintiff had failed to reply to Nice Property’s staff until about 10:13 pm on 25 August 2014, despite that there was indication of telecommunication reception at an earlier time on the same day (eg last seen online on WhatsApp at least at about 2:08 pm).
Quantum
36. The alleged loss and damage suffered by the plaintiff are not admitted by the defendant. It was said that even if she did suffer the said loss and damage, they were not caused by the negligence of the defendant and its staff. The defendant also could not foresee the alleged loss and damage suffered by the plaintiff.
37. Furthermore, as to the 3rd Flood, the defendant claims, the fact that the plaintiff could not be located for over 24 hours after happening of the same, constituted a novus actus interveniens, causing or contributing to her alleged loss and damage.
THE PLAINTIFF’S REPLY
1st Flood
38. The plaintiff admits to have received HK$2,500 from Nice Property under SCTC 1669/2011, but does not admit to the alleged settlement agreement.
39. The plaintiff says, after the 1st Flood, the contractor instructed by Nice Property informed her that the Iron Soil Pipe between Flats 2009 and 1909 was blocked, and request was made to enter Flat 1909 for replacement of the section located therein. The contractor said that refusal to do so might lead to future overflow of foul water in other residential units including Flat 2009, and Nice Property was aware of and could foresee such ramification. Sadly, Nice Property was unable to obtain consent from the owner of Flat 1909 for replacement of the section of Iron Soil Pipe therein, thereby having failed to procure and/or take preventive action after occurrence and reporting of the 1st Flood.
2nd Flood
40. As to the 2nd Flood, the plaintiff refutes that the defendant or Nice Property had neither sent any of its staff or contractor or plumber to render thorough inspection at Flat 2009, nor conduct any remedial work therein. There was also no truth in the allegation that the defendant had sent cleaners to Flat 2009 to assist in the cleaning of the same. The plaintiff says that the cleaner merely brought a bottle of chlorine bleach to Flat 2009.
41. In addition, she maintains that she had chased Nice Property for inspection and remedial work at Flat 2009 after the 2nd Flood, and had expressed her concern about its inaction and the possible recurrence of flood.
3rd Flood
42. Regarding the 3rd Flood, save that she had received a WhatsApp message at about 9 pm on 25 August 2014, and that she had returned to Flat 2009 at about 11 pm on even day, the plaintiff denies Nice Property’s alleged attempts to locate her.
43. Regarding the remedial work performed after the 3rd Flood, the plaintiff stated that on the morning of 26 August 2014, the plumbers first replaced a section of the Iron Soil Pipe at Flat 1909. The plumbers then replaced a section of Iron Soil Pipe at Flat 2009 in the afternoon.
44. When the plumbers had removed the said section from Flat 2009, the plaintiff noticed that the removed section was heavily corroded with rust, scale and corrosion build-up of 8-10 millimetres in thickness on the inner surface of the said pipe.
LIABILITY
45. The plaintiff disagrees that the defendant or its agent, namely Nice Property, had discharged their duties. To illustrate her point, the plaintiff repeats on their failure to replace the section of Iron Soil Pipe located inside Flat 1909 after the 1st Flood. In addition, the lack of thorough inspection and remedial work on their part after the 2nd Flood was reported had led to the 3rd Flood. On the topic of warnings issued to the occupants of the Building not to discard foreign objects into water closets and sewage, she criticises that they were given only after the 3rd Flood.
46. Finally, the plaintiff denies any liability on her part as alleged by the defendant. She contends that in discharge of her duty, she had repeatedly urged Nice Property to identify the cause of the 2nd Flood, and to take immediate remedial action. The plaintiff also defends on her absence from Hong Kong from 24 to 25 August 2014, citing that the purpose was to visit her mother in the Mainland and to seek medical treatment for herself.
KEY ISSUES
47. On the first day of trial, I have received clarification from Mr Kwan that the plaintiff is not pursuing any claim based on the 1st Flood, despite that the existence of the settlement agreement under SCTC 1669/2011 was not admitted by the plaintiff. Reference to the same is for setting out the background and as an event which, allegedly, gave rise to the 2nd and 3rd Floods. As such, and in light of the parties’ respective case, the issues that this court has to adjudicate on, as formulated by their legal representatives, are as follows:-
(1) What were the cause(s) of the 2nd and 3rd Floods? On this point, the defendant disputes that the 2nd Flood occurred as alleged by the plaintiff, and/or that it was caused by the blockage of the Iron Soil Pipe.
(2) Whether and to what extent the defendant had a duty in relation to the maintenance of the common soil pipes of the Building?
(3) Has the defendant failed to discharge its duty (if any) after the alleged occurrence of the 2nd Flood was reported to Nice Property?
(4) Whether the 3rd Flood was caused by the defendant’s failure to discharge its duty to maintain the common soil pipes (as alleged by the plaintiff) or that it was due to the improper and unscrupulous use of the drainage system beyond the scope of duty of the defendant?
(5) Is the defendant liable to the plaintiff on the ground of nuisance?
48. I will now set out the parties’ evidence relevant to these issues in a sequence that was adopted at trial.[4]
THE PLAINTIFF’S EVIDENCE
Her evidence-in-chief
49. The plaintiff has made 2 statements in this case, and the same were adopted as part of her evidence-in-chief at the trial. I will first summarise below the key evidence contained in her 1st witness statement.
50. As a matter of background, the plaintiff was the only occupant of Flat 2009 at the material times. As she had to work on the weekdays, she would usually not be at home from 8 am to 7:30 pm. Her mother resided in the Mainland, and the plaintiff would visit her mother during the weekends at least once every month. The plaintiff would also use such opportunities to receive medical treatment from Chinese doctors in the Mainland. She further explained that she would stay in the Mainland for only 2 days per visit, so she did not acquire any roaming service from the telecommunication company when she travelled there.
51. In relation to the 1st Flood, the plaintiff’s evidence was basically a repetition of her pleaded case. Although it was caused by the mop head blocking the common soil pipe, she repeated that the plumber had told her it was imperative to have the Iron Soil Pipe inside Flat 1909 replaced in order to avoid similar incident in the future. Unfortunately, as informed by the property assistant of Nice Property, the owner of Flat 1909 refused to give such consent.[5]
52. Regarding the 2nd Flood, her evidence was largely consistent with her pleaded case. The plaintiff explained that 4 to 5 days prior to the discovery of the 2nd Flood, she had been staying outside with her friend who came to Hong Kong for a visit. After she returned to Flat 2009 and became aware of the 2nd Flood, she reported the case to Nice Property, hoping that they would conduct inspection, perform remedial work, and to compensate her loss. Disappointingly, despite their knowledge that the 2nd Flood was caused by foul water overflowing from the water closet, nothing of the sort was done.
53. At trial, Mr Kwan asked the plaintiff why she concluded that the 2nd Flood was caused by overflow of foul water from the water closet. In reply, she referred to a photograph taken on 14 August 2014, showing the state of the lavatory at Flat 2009 after occurrence of the 2nd Flood (“Photo B132”).[6] She pointed to the debris on the water closet and the floor therein and said that they were faeces, and deduced that the faeces would not be there unless there was an overflow of foul water from the water closet.
54. Returning to Nice Property’s inaction, the plaintiff said she had bombarded its staff with telephone calls from 15 to 18 August 2014 and from 20 to 23 August 2014, on top of the Letter.[7] Yet, the staff of Nice Property remained sluggish in processing her complaints.
55. Pausing here, notwithstanding her pleaded case that: (1) Nice Property had not sent cleaners to Flat 2009 to assist in the cleaning of the same, and (2) the cleaner merely brought a bottle of chlorine bleach to Flat 2009; the plaintiff seemed to have conceded in her witness statement that the cleaner did assist in the cleaning of Flat 2009.[8]
56. Turning to the 3rd Flood, the plaintiff gave evidence in harmony with her pleaded case.
57. As to her allegation that there were 8 to 10 millimetres of rust, scale and corrosion at the inner surface of the Iron Soil Pipe, the plaintiff explained in court that she actually touched the Iron Soil Pipe and felt that the debris inside was with rough edges, and it was about 8 millimetres thick.
58. Apart from the above, the plaintiff in her witness statements expanded on the loss and damage she suffered. She said that foul water spread throughout the entire Flat 2009 during the 2nd Flood. The floor tiles, walls, furniture, household appliances, clothes and footwear were all soaked with foul water. Flat 2009 was filled with dreadful smell. After the 3rd Flood, the whole of Flat 2009 was once again soaked with foul water coming out from the water closet. Fixtures, cabinets, sofa, bed, wardrobe and utilities were drenched, the air inside Flat 2009 was thick with stench, and the wooden door and wall frames were infested with bugs. The dire straits of Flat 2009 rendered the same inhabitable, forcing the plaintiff to live with her friend up to mid-January 2015, and to rent an alternative accommodation from mid-January to 15 April 2015, paying a total sum of HK$13,500 for the alternative accommodation.
59. In addition to the costs of alternative accommodation, the plaintiff also incurred expenses for storage in the sum of HK$3,500. She spent HK$156,900 to renovate Flat 2009, which started in mid-February and ended in mid-April 2015. The reason for starting the renovation so late, she said, was her hope to use the compensation she could receive from the defendant to cover the costs, which proved to be futile.
60. The plaintiff’s 2nd witness statement was filed in reply to the matters stated in the 2nd witness statement of Mr Ho Tat Man (“Mr Ho”), a witness for the defendant. In it, she explained that she did not know the Iron Soil Pipe in Flat 1909 was replaced with a PVC pipe in July 2007 (“1909 PVC Pipe”), as no part of that remedial work was performed inside Flat 2009. She maintained that the Iron Soil Pipe which was hidden inside the lavatory floor slab of Flat 2009 (the “Embedded Section”), had not been replaced with a PVC pipe until after the 3rd Flood.
61. The plaintiff added that, when the plumber was removing the Embedded Section on 26 August 2014, she used her finger to touch the inner surface of the same and exclaimed that it was truly made of iron. She also observed that the Embedded Section had rusty stain on it. In her 1st witness statement, the plaintiff alleged that the plumber told her a towel was found stuck inside the Embedded Section, which had caused the 3rd Flood.[9]
Evidence under cross-examination
62. Mr Wong’s cross-examination of the plaintiff started with the 1st Flood. He got the plaintiff to confirm again that after the 1st Flood and the installation of the 2009 PVC Pipe, the water closet and the drainage inside the lavatory functioned properly for 4 years. She took the opportunity to clarify that the whole section of Iron Soil Pipe from the floor to the ceiling of the lavatory was replaced by the 2009 PVC Pipe at that time. She also agreed that the horizontal pipe connecting the water closet and the soil pipe was replaced with a new pipe made of PVC material at the same time (the “Water Closet Pipe”). Apart from these, the following evidence was given by the plaintiff on the 1st Flood which are of significance:-
(1) She was told by the plumber that the mop head which caused the blockage was found at the Embedded Section.
(2) No one said to her that the Iron Soil Pipe inside Flat 1909 was blocked.
(3) Notwithstanding the above, the plumber warned that if the Iron Soil Pipe inside Flat 1909 was not replaced the flood could recur. The staff of Nice Property agreed with this, but the owner of Flat 1909 rejected to have it replaced.
(4) She did not know that the Iron Soil Pipe inside Flat 1909 had been replaced with the 1909 PVC Pipe in 2007, until after reading Mr Ho’s 2nd witness statement.
(5) The plaintiff now says that it was the Embedded Section that required replacement after the 1st Flood.
63. As to the 2nd Flood, the plaintiff gave the following evidence under cross-examination:-
(1) She did not witness the backflow of foul water from the water closet, thus she did not know where the foul water came from and the cause of the 2nd Flood. When she said that the foul water came from the water closet, it was merely speculation on her part based on the faeces she found on the floor and on the water closet.
(2) She concluded that the debris on the floor and water closet were faeces because they were smelly. She later admitted that there were debris, faeces and toilet papers on the floor of the lavatory and on the water closet.
(3) The plaintiff explained that when she returned to Flat 2009 on 14 August 2014, there was no flood. The debris and faeces were half-dried with some moisture remained. The floor of Flat 2009 was wet, slippery and sticky.
(4) She was referred to Photo B132 and confirmed that the same was taken after the staff of Nice Property had arrived at Flat 2009. When asked whether any of the staff were wearing masks when they entered Flat 2009 on 14 August 2014, the plaintiff said the cleaners were not. Mr Wong suggested that they did not wear masks because Flat 2009 was not smelly, to which the plaintiff replied she had cleaned and mopped the floor before their arrival.
(5) The plaintiff agreed that on 14 August 2014, the staff of Nice Property tested the water closet by flushing away one or two pieces of toilet paper. They were successfully discharged, and the discharge rate of flush water was normal.
(6) From 14 to 24 August 2014, the plaintiff only stayed at Flat 2009 for one night. However, she did return to the same once or twice during that period to retrieve some clothes. There was no flood when she was there. She did use the water closet and flush the same. She confirmed that it was functioning properly and observed no abnormality with the discharge rate of flush water.
(7) During the same period of time, there were telephone conversations between the plaintiff and the staff of Nice Property. Apart from discussions on her claim against the insurer, she also expressed her concern of possible recurrence of flood if the Embedded Section was not replaced. However, the staff simply repeated that they would follow-up her claim with the insurer.
(8) The plaintiff agreed that she did not in the Letter request for further inspection or performance of remedial work at Flat 2009. Moreover, she agreed that it was wrong for her to state in the amended statement of claim that the said requests were included in the Letter.[10]
64. Below are what the plaintiff said regarding the 3rd Flood:-
(1) On the morning of 26 August 2014, the plumber performed the remedial work at Flat 1909. At about 2:35 to 2:40 pm on the same day, the plumber started remedial work at Flat 2009. Moments later, the plumber told the plaintiff that they had found the towel at the 1909 PVC Pipe in the morning. As they had already removed the towel, she could not take photographs of the same.
(2) The plaintiff denied that her narrative above was inconsistent with what she had stated under § 18 of her 1st witness statement.
(3) The plaintiff was then referred to a photograph which showed the Embedded Section after the concrete plinth of the floor slab was broken open by the plumber (“Photo B161”).[11] It could be seen that the Embedded Section was blocked by some materials. When asked, the plaintiff clarified that the said materials were sand and concrete fragments which came from the concrete plinth when it was broken open.
(4) The plaintiff agreed that there was a drain on the floor of the lavatory,[12] and any foul water which overflown from the water closet should have escaped through the drain but apparently could not during the 3rd Flood, leading to the foul water entering the whole Flat 2009 and into the common corridor outside.
(5) She was referred to photograph number 36 in her expert’s report (“Photo No 36”).[13] At first, she could not recall whether she took the same, but later accepted that she did. The plaintiff confirmed that the bag shown therein contained the sand and concrete fragments from the concrete plinth. She saw the plumber putting them into the bag before removing the same. Although the description to Photo No 36 stated that the bag contained residual material removed from the Embedded Section, the plaintiff clarified that the description was not given by her, and repeated that the bag contained sand and concrete fragments, not residual material.
(6) With reference to the records obtained by the service provider, the plaintiff agreed that the staff of Nice Property had telephoned her for 16 times from 11:53 pm on 24 August 2014 to 4:58 pm on 25 August 2014.[14]
(7) The focus of the cross-examination then changed to the notices posted by Nice Property, reminding occupants of the Building not to discard foreign objects into the water closets or sewage pipes, and of the danger of blockage. The plaintiff maintained her stance that the notices were only posted after the 3rd Flood. When Mr Wong referred her to 8 notices of similar nature issued from 10 April 2010 to 18 August 2014[15], the plaintiff replied that she had only seen the notice on 18 August 2014.
Re-examination of the plaintiff
65. Mr Kwan’s re-examination was only limited to two areas, namely the telephone calls to the plaintiff’s mobile phone from 24 August 2014 to 25 August 2014, and Photo No 36. Regarding the former, Mr Kwan highlighted that beside all records of the 16 telephone calls, they were marked with the letter “C”. The explanatory note at the bottom of the page defined it as call being forwarded. The plaintiff expressed no view on this. As to the latter, the plaintiff repeated her answer given under cross-examination. She even fortified the same by saying that she saw with her own eyes the plumber putting sand and concrete fragments into the bag before transporting them away.
EVIDENCE OF MR YUEN KAM MAN (“MR YUEN”)
66. Mr Yuen was the first witness for the defendant. He was a senior property officer of Nice Property at the material time and when he made his statement. He started his employment with Nice Property in 2003, and was assigned to work at the Estate in April 2014. At the time of trial, he had left the employ of Nice Property and became an engineer with another employer.
Evidence-in-chief
67. His narrative started with the 2nd Flood. On 14 August 2014, after receiving a report from the plaintiff, he assigned his subordinate, Mr Lam Wai Kit[16] (transliteration) to attend Flat 2009. Mr Lam reported to Mr Yuen as to what the plaintiff had told him, and her suspicion that the 2nd Flood was caused by foul water overflown from the water closet. As such, Mr Lam conducted the test by depositing toilet papers into the water closet and flushed them away. No abnormality was observed. Mr Lam also reported that when he arrived at the scene, he saw water on some parts of Flat 2009, and there were some dried debris on the floor.
68. Mr Yuen attended Flat 2009 at about 5:30 pm on the same day. At the time of his arrival, the cleaners were in the midst of cleaning Flat 2009. Debris on the floor were dried, and he deduced that they should have been exposed in air for a period of time. He saw no sign that there was leakage from any soil pipe or foul water overflowing from the water closet. There was no indication as to when and why the 2nd Flood took place. As the plaintiff was pressing for monetary compensation from the insurer, Mr Yuen requested her to provide Nice Property with the particulars of loss so that the same could be forwarded to the insurer. He compiled a report on the 2nd Flood after he left.[17]
69. On 16 August 2014, during a telephone conversation between the plaintiff and Mr Yuen, she expressed to him that everything was back to normal for the time being. The conversation ended with the plaintiff telling him that she would submit particulars of her loss on 18 August 2014. In between 18 to 23 August 2014, there were 5 further telephone conversations between the two of them, all related to the plaintiff’s claim for compensation. Mr Yuen said at no time during these conversations did she express any concern of future flood or overflow of foul water from the water closet.
70. His words on the sequence of events regarding the 3rd Flood largely mirrored those pleaded by the defendant. Mr Yuen claimed that he had personally telephoned and left messages on the mobile phone of the plaintiff at 12:07 am, 12:16 am, 9:30 am, 10:05 am, 10:15 am, 12:40 pm, 2:30 pm and 4:30 pm on 25 August 2014, but all to no avail.
71. Once he received news that the plaintiff would return to Flat 2009, he also attended the same in the wee hours of 26 August 2014. He saw that water was coming out from Flat 2009 into the common area of the 20th floor. There was water accumulated at the lavatory, kitchen and living room of Flat 2009, and the furniture were soaked.
72. After the cleaners and himself had helped the plaintiff in cleaning Flat 2009, she expressed the need to leave. Before so, she and Mr Yuen settled on 26 August 2014 as the date to perform remedial work at Flat 2009.
73. Remedial work was performed on 26 August 2014 as scheduled, and he had attended both Flats 1909 and 2009 at various times of the day. He was informed by the plumber that some cloth pieces and debris were found clogging the 1909 PVC Pipe, and the same were removed.
74. Thereafter, another incident report was compiled by Mr Yuen.[18] The 3rd Flood was followed-up by Ms Hsu and other staff of Nice Property.
75. At trial, Mr Yuen confirmed that photographs taken at the scene by the staff of Nice Property after the 2nd and 3rd Floods have been disclosed in the present case.[19]
His evidence under cross-examination
76. The 2nd Flood, or to be specific, the condition of the debris, was Mr Kwan’s interest at the start of his cross-examination. He questioned Mr Yuen as to why he considered them dried, to which Mr Yuen answered that was what he observed. Mr Yuen did not touch the debris to ascertain their dryness, but he saw no water around them. Although it was his believe that the debris had been exposed in air for some time, he could not say exactly for how long.
77. He confirmed that the floor inside the lavatory was still wet when he arrived. He did not know whether the lavatory had been cleaned, and he had no idea as to the source of wetness. There was no stench, be it inside the lavatory or Flat 2009 as a whole.
78. When he was challenged as to why the floor of the lavatory remained wet whilst the debris had dried up, Mr Yuen simply answered he did not know.
79. As to the location of the debris he saw, Mr Yuen said he could not remember. Most of the photographs showing the debris were taken at about 4 pm on that day, before his arrival at 5:30 pm. And by the time he arrived, Flat 2009 was at least partially cleaned by the cleaners.
80. Apart from the above, Mr Yuen also could not recall the state of the water closet when he attended Flat 2009. His attention was on the water level inside it and whether there was any backflow.
81. Perhaps seeing that his questions on debris almost invariably led to answers of “I cannot recall” from Mr Yuen, Mr Kwan queried what purpose could be served by his attendance at the scene. Mr Yuen replied he was there due to the plaintiff’s request to claim compensation.
82. Mr Kwan then changed the subject to the test conducted by Mr Lam. He suggested it was proof of their knowledge that the 2nd Flood was caused by overflow of foul water from the water closet. And except for this particular reason, there was no need for the cleaners to sterilise Flat 2009 on top of cleaning it. These suggestions were met with brisk denials from Mr Yuen.
83. When Mr Kwan questioned him on whether toilet paper could be flushed down the water closet represented that there was no blockage of the soil pipe, Mr Yuen answered in the affirmative. He also disagreed with the suggestion that such conclusion could not be made unless he has the proper qualification.
84. Mr Yuen disputed on the need to have any qualified person to investigate the matter and to render any remedial work after the 2nd Flood. He reasoned that there was no flood, and the water closet was functioning properly when the test was conducted with no sign of blockage.
85. Finally, Mr Yuen denied that the lack of investigation into the cause of the 2nd Flood and remedial work done afterwards brought about the 3rd Flood.
Re-examination
86. During re-examination, Mr Yuen clarified that the telephone conversations at 11:20 pm on 25 August 2014 and at 3:08 pm on 26 August 2014 were between the plaintiff and some other staff of Nice Property.
EVIDENCE OF MS HSU
87. Ms Hsu was the second factual witness for the defendant. At the material time, she was employed as a property manager and was assigned to work at the Estate since 2014. At the time of trial, she occupied the post of senior property manager and has been deployed to work at another estate.
Evidence-in-chief
88. Ms Hsu adopted her witness statement as part of her evidence-in-chief. Concerning the 2nd Flood, I note what she said in the statement was given in a third-person perspective, with no indication that she had any direct knowledge or personal involvement in the same. Suffice it to say what she stated therein adds nothing to what Mr Yuen had already told the court.
89. As to the 3rd Flood, Ms Hsu became involved in it starting from the morning of 25 August 2014. She took a rather remote role, primarily having dialogues with the plaintiff over the phone, following up on her requests and complaints, not to mention her intended claim for compensation.
90. The main purpose of Ms Hsu’s evidence, in my view, was to advance the defendant’s case that it had discharged their duties as required under the DMC and the BMO. As a prologue, Ms Hsu explained it is a recurring phenomenon in any buildings to have occupants depositing into sewage, drains or water closets, objects that would clog them. These acts, and when they would happen, would be impossible for any property management company or incorporated owners to detect, predict and control. In spite of these difficulties, Nice Property and the defendant had issued timely notices to their occupants, warning them not to engage in such immoral practice. Apart from these notices, Ms Hsu referred to the Owners’ Handbook[20] and Standard Tenancy Agreement[21] adopted for the Estate and highlighted that both sets of documents contained clauses giving the same warnings to the occupants. Reminders were given to the occupants that detection of any clogged sewage pipes, backflow of foul water and/or abnormality of the discharge rate of flush water should be reported to Nice Property forthwith. Nice Property also took on active roles in inspecting and repairing any possible leakages from the common pipes, and to follow-up on reports of the same in good time.
91. Regarding the loss that the plaintiff allegedly suffered, Ms Hsu criticised her for bringing about her own loss. Ms Hsu blamed the plaintiff for not being contactable during a time of emergency, and gave her first reply after 24 hours had passed since the discovery of the 3rd Flood. The plaintiff was chastised for disregarding the condition of Flat 2009, evidenced by her extended absence from the same. This, in Ms Hsu’s view, was inexcusable and inexplicable especially if the plaintiff was, after the 2nd Flood, worried that there could be another flood.
Her evidence under cross-examination
92. Ms Hsu was first asked about her WhatsApp messages to the plaintiff in the afternoon of 25 August 2014. She admitted that the messages simply mentioned about there being an urgent matter, with no specific reference to the 3rd Flood. Ms Hsu also agreed that the plaintiff was able to return to Flat 2009 within 1 hour and 7 minutes between the time of her reply at 10:13 pm and her arrival at Flat 2009 at 11:20 pm.
93. In relation to her criticism on the plaintiff for not being contactable for 24 hours, Ms Hsu clarified that her accusation stemmed not solely on the same, but also her observations that the plaintiff should have read the messages. First, as she had stated in her witness statement, the record showed that the plaintiff was last seen online at 2:08 pm on 25 August 2014, which was after the WhatsApp message that she sent to the plaintiff at 10:17 am. Second, she noticed there were two blue ticks beside the 10:17 am message, meaning that the same had been read.
94. Finally, Ms Hsu disagreed with Mr Kwan’s suggestion that staff of Nice Property knew the 2nd Flood was caused by overflow of foul water from the water closet. She added the test was done because of the plaintiff’s suspicion that foul water originated from the water closet.
95. Ms Hsu’ evidence concluded. She was not re-examined by Mr Wong.
EVIDENCE OF MR HO
96. As a matter of background, Mr Ho was assigned by the defendant to work at the Estate in April 2003. At the start, he was employed as a property officer, and was later promoted to the post of assistance property manager. Mr Ho made 2 witness statements for the defendant in this case.
Evidence-in-chief
97. Because of his tenure working at the Estate, Mr Ho was able to take us back to the time when the 1st Flood occurred and what had happened before it. His narrative started in July 2007, when the Iron Soil Pipe located inside Flat 1909 was replaced with the 1909 PVC Pipe. In support, he was able to retrieve from the old files quotations and completion report issued by contractor Wan Hing Construction Engineering Ltd.[22] Photographs were produced to show that at the time of the 3rd Flood, the 1909 PVC Pipe could be seen inside the lavatory of Flat 1909.[23] In other words, at the time of the 3rd Flood, the soil pipes inside both Flats 1909 and 2009, save the Embedded Section, were made of PVC.
98. His evidence regarding the 1st Flood was uncontroversial. He was involved in the follow-up works concerning the 1st Flood, and had compiled a report on it.[24] The cause of it was a mop head clogging the section of Iron Soil Pipe between Flats 1909 and 2009. The Removed Section was eventually replaced with the 2009 PVC Pipe.
99. Narrative on the 3rd Flood was preceded by introduction of a drawing he made, showing the layout of the sewage pipes which served the lavatories inside Flats 1909 and 2009 (“Ho’s Drawing”). It could be seen that the main soil pipe runs vertically through both lavatories, the Water Closet Pipes connecting the water closets with it. In addition, Ho’s Drawing shows that there were drains situated in front of the water closets and on the floors of both lavatories (separately referred to as “Flat 1909 Floor Drain” and “Flat 2009 Floor Drain”). Their pipes descended vertically through the floor slabs, protruding into and underneath the ceilings of the lavatories in the units below. The pipes would then turn horizontal, connecting with the main soil pipe (separately referred to as “Flat 1909 Drainage Pipe” and “Flat 2009 Drainage Pipe”).[25]
100. On 26 August 2014, a plumber from contractor Shing Hing Construction Engineering Co Ltd (“Shing Hing”) attended Flats 1909 and 2009 to perform the remedial work. As per its work report dated 4 September 2014,[26] the cloth pieces and debris were found at the intersection between the Flat 2009 Drainage Pipe and the 1909 PVC Pipe (hereinafter referred to as “Point (B)”).[27] Mr Ho explained blockage at Point (B) not only would lead to overflow of foul water from the water closet in Flat 2009, it would incapacitate the function of Flat 2009 Floor Drain, as the Flat 2009 Drainage Pipe was also blocked. With the foul water not being able to escape through Flat 2009 Floor Drain, it led to the accumulation of foul water which ultimately flooded the entire Flat 2009, and seeped into the common corridor.
101. After unclogging the 1909 PVC Pipe, plumbers also replaced the Embedded Section before calling it a day.
His evidence under cross-examination
102. Mr Ho agreed with Mr Kwan that the Embedded Section was made of iron cast until the same was removed and replaced with a PVC pipe on 26 August 2014.
103. Regarding the floor drain, he affirmed that every lavatory of every unit in the Building had one. He had no knowledge of the circumference of the same. After he was referred to a photograph showing the lavatory inside Flat 2009, he agreed that the Flat 2009 Floor Drain had a cover over it, and with slits on the cover.[28]
104. Mr Ho confessed Ho’s Drawing was neither drawn up to scale nor an accurate and detailed depiction of the settings inside the lavatories. It served to illustrate roughly how each set of pipes ran and connected to one another, and to assist him in giving his evidence.
105. Mr Ho was not re-examined by Mr Wong.
EVIDENCE OF MR CHAN KIN LUN (“MR CHAN”)
106. Mr Chan was the last factual witness for this case. Giving evidence for the defendant, Mr Chan was the plumber who unclogged the 1909 PVC Pipe on 26 August 2014, upon the instruction of Shing Hing. He was not responsible for the replacement of the Embedded Section, which was undertaken by other plumbers. At the time of his witness statement, he had already accrued 20 years of experiences in plumbing related works.
Evidence-in-chief
107. On that day, he attended Flat 1909 at about 10 am. He first saw open part of the 1909 PVC Pipe. He then inserted a rod of about 1.04 metres long, with 3 claws at the top, into the 1909 PVC Pipe, reaching upward in search for objects which had caused the blockage. Without success, Mr Chan decided to extend his reach by adding another section to the original rod, increasing it to a total length of 2.08 metres. On his second attempt, when the rod reached 1.19 metres upward from the top of the opening, the blockage was found. The exact spot of the blockage, Mr Chan said, was at Point (B), as marked on the diagram appended to his report (“Chan’s Diagram”).[29]
108. Mr Chan then stirred the rod, clawing out from the 1909 PVC Pipe blackened pieces of cloth. Once the cloth pieces were removed, the foul water accumulated inside gushed out. Mr Chan continued to unblock the 1909 PVC Pipe at Point (B), until all debris were removed. To ensure that there was no blockage above Point (B), Mr Chan pushed the rod further up to 2.08 metres from the top of the opening, reaching the Embedded Section.[30] No blockage was found.
109. He added yet another section to the rod, extending it to the total length of 3.12 metres. He then inserted the full length upward inside 1909 PVC Pipe, and found no blockage.
110. Finally, he used a high pressure machine to vacuum away any residual debris left inside the 1909 PVC Pipe. Satisfied that there could be no more debris clogging the same, Mr Chan packed up and departed at about 11 am. Remaining procedures were left to be done by other plumbers.
Evidence under cross-examination
111. Mr Kwan started by inquiring into the size of the cloth pieces found inside the main soil pipe. With the aid of a ruler, Mr Chan recalled that the size of each cloth was about 4 inches long and 1.5 inches wide. He added that there were only 2 pieces of cloth found.
112. Apart from the above, Mr Chan gave the following evidence:-
(1) The top of the opening that he created on the 1909 PVC Pipe was 1.2 metres above the floor of the lavatory, and 1.4 metres below the ceiling.
(2) The top of the opening to Point (B) was about 1 metre, and from Point (B) to the ceiling of the lavatory was 0.4 metre.
(3) He disagreed that 1.19 metres from the top of the opening would reach the top of Point (B).
(4) Mr Chan disputed that he had pushed the debris upward before he made the measurement. He explained that he stopped immediately when he felt the blockage, and took his measurement of 1.19 metres. He did not start clawing down the debris until after taking the measurement.
(5) He disagreed with Mr Kwan’s suggestion that the blockage was found more than 1.19 metres above the top of the opening.
Re-examination
113. During re-examination, Mr Chan confirmed once again that 1.19 metres from the top of the opening was where he found the blockage, not the point where he started to claw down the debris. By reference to Chan’s Diagram, he pointed to the bottom of Point (B) as the spot where he found the blockage.
EVIDENCE OF MR HO FUK KWONG, VICTOR (“MR V HO”)
114. With all factual witnesses of the parties having completed their evidence, the plaintiff called her expert, Mr V Ho, to give his evidence at trial. In this case, Mr V Ho had made two expert reports, the first being made singly by him dated 10 June 2019 (“Ho’s Expert Report”), and a joint report with Dr Lam Siu Shu Eddie (“Dr Lam”) dated 25 June 2019 (“Joint Expert Report”). He adopted them as part of his evidence-in-chief at trial.
Evidence-in-chief
115. The parties’ experts were specifically directed to comment on two questions[31], namely:-
(1) What was/were the cause(s) or possible cause(s) of such backflow of the foul water from flush toilet in the water closet in Flat 2009 on or about 14 August 2014, if the same is proven? Specifically, was it caused or possibly caused by such matters complained of by the plaintiff in § 8(h)(i) and § 11(f) and § 11(g) of the amended statement of claim?[32] (“1st Expert Issue”)
(2) Was such backflow of foul water from flush toilet in the closet in Flat 2009 on or about 25 August 2014 (if proven), caused or possibly caused by such matter complained of by the plaintiff in § 8(h)(ii), § 8(i) and § 11(f) and § 11(g) of the amended statement of claim? (“2nd Expert Issue”)
116. §§ 8(h)(i), 8(h)(ii), 8(i), 11(f) and 11(g) of the amended statement of claim read as follows:-
“8. The plaintiff avers as follows:
……
h. The plaintiff avers that:
i. Due to the accumulation of residual material inside the Iron Soil Pipe, the Iron Soil Pipe was clogged, which was the cause of the 2nd Flood;
ii. The Iron Soil Pipe inside the [Flat 2009] remained clogged after the 2nd Flood and/or was in such a dilapidated condition that was prone to blockage when objects were disposed into the same by other residents in the Building after the 2nd Flood.
……
11. The 1st Flood, the 2nd Flood and/or the 3rd Flood and the Plaintiff’s loss and damage were caused by the negligence of the Defendant, its servants or agents.
Particulars of Negligence
……
f. Allowing rust, debris and waste to accumulate in the iron soil pipe in the Building, which are for the common use of the occupants;
g. Failing to carry out maintenance work to clear rust, debris and waste in the soil pipe in the Building, which are for the common use of the occupants; and
……”
117. Below are the salient information and opinions contained in Ho’s Expert Report:-
(1) Since the 1st to 3rd Floods happened some time ago, Mr V Ho gave his opinions based on the information, previous reports and photographs provided by the plaintiff. The inspection took place on 23 January 2018, together with his colleague Mr John Ho. The same was conducted by means of visual inspection and photo-recording whenever applicable at Flat 2009.
(2) He was given to understand that Photo No 36, photographs 41 and 42 of Appendix III (“Photo No 41” and “Photo No 42”) showed the debris accumulated inside the Embedded Section, which were removed by the plumber.
(3) As per his sketch in Appendix V (“Ho’s Sketch”), the Embedded Section was made of iron cast, whilst the Water Closet Pipe was made of PVC, at the material times.[33]
(4) Apart from the above, Mr V Ho also adopted Chan’s Diagram for explanation of his findings and opinions.[34]
(5) Mr V Ho, first challenged the measurements provided in Chan’s Diagram. In particular, Mr V Ho disagreed with the measure of 1,000 millimetres from the top of Point (B) to the top of the Water Closet Pipe inside Flat 2009. Mr V Ho suggested that the full length of that area should only be 640 millimetres. As such, when Mr Chan suggested therein that the blockage was found 1,000 millimetres below the top of the Water Closet Pipe inside Flat 2009, the blockage should actually be at a point which was below Point (B) in Chan’s Diagram. Mr V Ho marked the point of blockage as “W” on Chan’s Diagram (hereinafter referred to as “Point (W)”).[35]
(6) He rejected the possibility that a backflow phenomenon could have occurred if the blockage was at the Water Closet Pipe inside Flat 2009 (“Scenario 1”). He explained that under Scenario 1, the only thing that would have happened was that the flushing water from the cistern of the water closet could not be discharged through the Water Closet Pipe. He opined that this had not happened, as the Water Closet Pipe could not accommodate with such a large amount of accumulated materials. He added at trial that, if the Flat 2009 Floor Drain was functioning properly, ie that the same was not blocked, the 2nd Flood would not have happened.
(7) Instead, he believed that the blockage was found at the Embedded Section, as the same was made of cast iron and was rusty, residual materials could be hooked on it, allowing them to continue accumulating from within, eventually causing the same to be clogged and leading to foul water to overflow from the water closet inside Flat 2009 (“Scenario 2”).
118. In the Joint Expert Report, the 1st and 2nd Expert Issues were revisited. Mr V Ho’s opinions, in a nutshell, are as follows:-
(1) In relation to the 1st Expert Issue, ie concerning the 2nd Flood, he maintained his view that Scenario 2 was the cause, with the foul water having no other course but to escape from the water closet inside Flat 2009.
(2) Mr V Ho fortified his view above by reference to Photo No 36, which showed the plumber having removed a bulk of residual materials from the Embedded Section after the 3rd Flood.
(3) He opined that the blockage was between the spots just below the Embedded Section and below Point (B).[36]
(4) Flushing away the toilet papers after the 2nd Flood could not disprove the existence of blockage between the Embedded Section and Point (W). Mr V Ho explained that the cistern contained only 9 litres of flush water, which could be discharged through a small opening inside the main soil pipe without any backflow. As such, he doubted the worth of the test conducted by Mr Lam after the 2nd Flood. Furthermore, there was no information regarding how many pieces of toilet paper were flushed, how many times it was flushed before the toilet papers were discharged, and the qualification of Mr Yuen or Mr Lam in concluding that the water closet functioned normally and there was no abnormality with the discharge rate.
(5) As to the 2nd Expert Issue, ie concerning the 3rd Flood, Mr V Ho said that the 1st and 2nd Floods were indications that the main soil pipe was inherently defective. From hind sight, if the defendant or Nice Property had carried out remedial work after the 2nd Flood, the 3rd Flood could have been avoided.
(6) He agreed that if the blockage was at Points (B) or (W), the Flat 2009 Floor Drain could not serve as a route for the foul water accumulated inside the lavatory to escape.
Cross-examination
119. Mr Wong’s cross-examination of Mr V Ho started with attacks on the latter’s credential as an expert. The following parts of his answers are noteworthy:-
(1) Mr V Ho was referred to his Curriculum Vitae, which was neither included in Ho’s Expert Report nor in the Joint Expert Report.[37] In it, he has set out the court cases in which he acted as an expert of the litigants. However, he agreed that for the listed cases of LDBM 40/2016 and HCA 1665/2010, his involvement was limited to that of an assistant to Mr John Ho. In fact, it was Mr John Ho who was recognized as the expert by the court in these cases.
(2) Moreover, amongst the 14 water leakage cases that he declared to have acted as expert, the truth was that he only acted as such in 6 of them. Mr V Ho confessed he was misleading this court when he stated in his Curriculum Vitae that he acted as independent expert for the remaining 8 water leakage cases.
(3) For the 6 water leakage cases that he had acted as an expert, none of them was related to backflow of foul water from water closet.
(4) As to the present case, he agreed that Mr John Ho was the original expert nominated by the plaintiff.[38] Although in form he was Mr John Ho’s assistant, he was in substance working as a partner with Mr John Ho on this case. The original solo report of Mr John Ho,[39] and his part in the original joint expert report,[40] were written by Mr V Ho after discussions between himself and Mr John Ho, despite his name never appeared in any of these reports.
(5) He had, by an affirmation dated 1 August 2019, affirmed that the Ho’s Sketch was drawn by him after the inspection on 23 January 2018. This was, however, controverted by the plaintiff’s affirmation dated 26 July 2017, where the same appeared as part of the report compiled by Mr Hau Tung Chow dated 20 July 2015 and exhibited as “WMY-9”.[41] In response to this, Mr V Ho said he vaguely recalled that he had conducted an inspection sometime in 2016. He later confirmed that he and Mr John Ho inspected Flat 2009 only after leave was granted by the court for Mr John Ho to be the expert for the plaintiff. He had no explanation for Ho’s Sketch appearing in the said affirmation of the plaintiff and the report of Mr Hau Tung Chow, but insisted that it was his own creation.
(6) Mr V Ho confirmed that he had read the witness statements of Mr Ho and Mr Chan before compiling Ho’s Expert Report. Nevertheless, apart from Scenarios 1 and 2, he did not include in it Mr Ho and Mr Chan’s version and discussed it as the third possible scenario. He reasoned that there was no need to do so as their version was consistent with Scenario 2, ie that the blockage was found inside the vertical soil pipe. The exact location where the blockage was found inside the main soil pipe, in his opinion, was irrelevant.
(7) He acknowledged that he was not precise in answering the 1st and 2nd Expert Issues in Ho’s Expert Report.
(8) Mr V Ho admitted that his conclusion on the cause of the 2nd Flood was based on speculation.
120. Turning to the opinions he rendered on the 2nd Flood, the salient points of his answers to Mr Wong’s questions are set out below:-
(1) In the Joint Expert Report, Mr V Ho suggested Point (W) was where the blockage happened during the 3rd Flood because he assumed the assessment of Dr Lam was correct.[42]
(2) Agreed that for the 2nd Flood, there was no evidence or information to show:-
(a) when it happened;
(b) how the alleged backflow happened;
(c) which part of the main soil pipe was blocked; and
(d) what caused the blockage, if any.
(3) He relied on Photo No 36 to speculate on the cause of the 2nd Flood.
(4) The descriptions beside the photographs appended to Ho’s Expert Report were written by him based on the information provided by the plaintiff and what was depicted in each photograph. Photo No 36 was no exception. His conclusion that blockage was found at the Embedded Section stemmed from the description that residual material was removed therefrom. He noted the plaintiff’s contradictory evidence in court, but suspected that the plaintiff had made a mistake in her answer, as she is a lay person. Alternatively, the plaintiff might not have given a full answer. To justify these views, Mr V Ho queried how all the sand and concrete fragments could be carried away in one bag.
(5) Notwithstanding his preceding answer, Mr V Ho agreed that he did not know what the bag in Photo No 36 contained. However, as the same was taken at the door of the lavatory, he thought there was reasonable suspicion that the bag contained debris removed from the Embedded Section.
(6) As to the test conducted by Mr Lam on 14 August 2014, Mr V Ho acknowledged that the water flow and water level were reported to be normal, and the toilet paper could be flushed away. He maintained the doubt he had regarding how many pieces of toilet paper were flushed away, despite having heard the plaintiff’s evidence in court on this subject.
(7) He had also heard the plaintiff’s evidence that she had used the water closet and found the same functioning properly between 14 to 23 August 2014. He accepted that, in spite of the 2nd Flood, the water closet was functioning without abnormality and blockage.
121. As to the 3rd Flood, Mr V Ho gave the following answers under cross-examination:-
(1) He had read the statements of the plaintiff and was aware of her case that the towel which blocked the soil pipe was found in Flat 2009 before compiling his solo and joint expert reports. He had also heard the contradictory evidence that she gave in court. However, regardless of whether the towel was found in the 1909 PVC Pipe or the Embedded Section, his opinion remained the same.
(2) Mr V Ho agreed that the design of a soil pipe would cater for rust, debris and waste to accumulate in it, so that it was created wide enough for water to flow through even under these conditions. Nevertheless, he agreed that the soil pipe could still be blocked if occupants deposited in it mop head, cloths and other bulky materials, and no person could prevent occupants from such improper usage of the soil pipe.
(3) He also agreed with Dr Lam’s explanation that spiral motion of foul water whilst being flushed down the main soil pipe would create a self-cleansing purpose. But he added that if the volume of accumulative material became bigger and bigger, it would affect the effect of spiral motion, and the accumulative material would become a blockage, ultimately leading to backflow of foul water.
(4) He noted plaintiff’s evidence that Photo No 36 showed sand and concrete fragments blocking the Embedded Section. He answered in the affirmative that it was due to the plumber having placed something in the Embedded Section to prevent the sand and concrete fragments from falling through it and into the lavatory of Flat 1909.
(5) Mr V Ho could not see from Photo Nos 36, 41 and 42 that there was rust inside the Embedded Section, as the photographs were blurry, but he suspected that that was the case due to aging.
(6) He agreed that neither the DMC nor the Code of Practice of Building Management and Maintenance cited in Ho’s Expert Report regarded removing rust, debris and/or waste from inside the soil pipes as routine maintenance of the same. He justified this by saying that inner surface of the soil pipe could not be seen. However, if there were rust at the exterior of the soil pipe, the same should be repaired or replaced.[43]
(7) Finally, he agreed that the 3rd Flood was caused by blockage at 1909 PVC Pipe. But he disagreed that the blockage did not happen at the Embedded Section and the suggestion that it had nothing to do with the 3rd Flood.
122. Mr V Ho was not re-examined by Mr Kwan.
EVIDENCE OF DR LAM
123. Dr Lam is the expert witness for the defendant. For this case, he had prepared a solo report dated 20 February 2018 (“Lam’s Expert Report”) and the Joint Expert Report with Mr V Ho.
Evidence-in-chief
124. In Lam’s Expert Report, Dr Lam first set out the 1st and 2nd Expert Issues that he had to answer, and the relevant paragraphs in the amended statement of claim for reference. He had also created a chronology of the key events based on the pleadings of the parties, and the witness statements from the plaintiff and Mr Ho. Settings of the lavatory inside Flat 2009, in particular the Flat 2009 Floor Drain and the Flat 2009 Drainage Pipe by reference to Ho’s Drawing, was also provided as part of the background information.
125. Dr Lam opined that, to flood the lavatory of Flat 2009, the blockage must occur at or below Point (B). If the blockage happened at the Embedded Section, foul water coming out of the water closet could escape through Flat 2009 Floor Drain and via the Flat 2009 Drainage Pipe, and finally passing the 1909 PVC Pipe. These analysis, Dr Lam said, were consistent with Mr Chan’s evidence that the blockage was at Point (B).
126. The above amounted to one of various reasons that the condition of the Embedded Section was not relevant to the causes of the 2nd and 3rd Flood. The other reasons are set out below:-
(1) The diameter of a soil pipe is based on the maximum number of sanitary fixture units connected to it. The soil pipe is 4 inches in diameter and could accommodate 160 to 240 drainage fixture units or 40 to 60 water closets. This design brief has been used for many years, and based on past experience with consideration of rusting, debris and waste in the soil pipes.
(2) Under normal usage, the iron soil pipe would rust, and debris and waste would accumulate on the inner surface, but it would not cause blockage.
(3) In respect of a PVC soil pipe, debris and waste would also accumulate on the inner surface, but this would not cause blockage.
127. In support of his views under §§ 126(1) and 126(2) above, Dr Lam expounded on the flow of water or hydraulic in soil pipes and the mechanism of clogging. His explanations are reproduced hereunder:-
“5.4 ……
a. When small amount of foul water is discharged into the soil pipe, flow of foul water clings to the pipe wall as a thin layer and descends in a spiral motion to provide a self-cleansing effect to “clean” the pipe wall.
b. With increasing amount of foul water into the soil pipe, thickness of the thin layer increases uniformly enclosing a core of air at the center of the soil pipe and descends without a spiral motion.
c. When amount of foul water is further increased, flow of foul water tends to unite across the cross-section of the soil pipe and forms plugs of water (i.e. an air-tight condition). Plugs of water eventually break up due to air pressure built up in the lower section of the soil pipe. This may result in annoying noise coming out from the soil pipe.
d. The above is also the reason why the soil pipe (under normal usage) is designed to ½ to ¾ of the full rate of discharge.
e. At the base of the soil pipe, foul water travels horizontally (at a fall or gradient) along the horizontal soil pipe and enters the manhole at high velocity causing suction that encourages the discharge of foul water.
5.5 When a foreign object is also discharged, foul water first clings to the pipe wall as a thin layer and by spiral motion providing self-cleansing effect and dragging the foreign object with it. On travelling downwards, thickness of the thin layer increases but the core of air in the center of the soil pipe is plugged by the foreign object. As a result, air pressure builds up in the lower section of the soil pipe. The foreign object ceases to move downward and blocks the soil pipe.
5.6 As discussed in paragraph 3.3 above, clogging will not take place under normal usage. It is only when a foreign object and the thin layer of foul water complete an “air-tight condition”, clogging starts to take place disregarding whether the soil pipe is made of iron or PVC.
5.7 As the present case is related to a domestic drainage system designed to convey domestic/sanitary sewage that contains human excrement and liquid household wastes, foreign objects like the mop head (the 1st Flood) and the cloth pieces (the 3rd Flood) cannot be discharged as these are not anticipated to be disposed of in a domestic drainage system.
5.8 Further as explained in paragraph 3.4(b) above, sizing a soil pipe is based on past experience that has already taken care of rust, debris and waste but not foreign objects like the cloth pieces.”
128. For clarity sake, contents of § 3.3 as referred to in § 5.6 of Lam’s Expert Report, have been summarised under paragraph 126 of this judgment.
129. Regarding the 1st Expert Issue, for reasons above, and considering the extensive coverage of water to the flooring, walls and etcetera, Dr Lam opined that the 2nd Flood was likely caused by blockage of the 1909 PVC Pipe, not the Embedded Section. However, the cause of the blockage could not be ascertained. He was equally unsure as to how the blockage was eventually cleared. He speculated that the blockage would as well affect the floors above Flat 2009, and that as a result, chemicals such as un-blocker, or even soda, acid etcetera, could have been poured down the soil pipe and cleared the blockage.
130. As to the 2nd Expert Issue, Dr Lam said that the cloth pieces seen in the photographs were big enough to clog the 1909 PVC Pipe. The blockage was found in the 1909 PVC Pipe, not the Embedded Section. The same reasons were cited by Dr Lam in coming to such view.
131. On the question of maintenance, “Guidelines on Maintenance and Repair of Drainage System and Sanitary Fitments” published by the Buildings Department, provides:-
“All drain pipes, including soil pipes, waste pipes, ventilating pipes and underground drain pipes should be maintained in good working order without defects. All such pipes should be inspected regularly, and where leakage, blockage or defects are detected, they should be rectified immediately.
Minor blockage of drains can usually be cleared by high pressure water jet or rodding. In case of serious blockage by materials such as cement, the defective portion may have to be exposed and replaced.”[44]
132. From the above, Dr Lam refutes the plaintiff’s pleaded case that maintenance of the pipes would require clearing of rust, debris and waste in the soil pipe.
133. In the Joint Expert Report, Dr Lam repeated his above opinions. He was more specific in suggesting that Point (W) was the spot of blockage leading to the 3rd Flood.[45]
Evidence under cross-examination
134. Mr Kwan started his cross-examination by suggesting a scenario where the Flat 2009 Floor Drain was blocked by the debris that came out from the water closet during the 3rd Flood. Dr Lam agreed that this could happen, but the possibility was not high. In order to flood the entire Flat 2009 and for the foul water to seep into the common corridor, the Flat 2009 Floor Drain must be totally blocked and remained to be so for an extended period of time. Debris coming out from the water closet were most likely to be faeces and toilet papers. For these materials to fully blocked the slits on the cover of the Flat 2009 Floor Drain would be highly unlikely.
135. Dr Lam continued that the 3rd Flood had occurred for a whole day, it was therefore reasonable to expect that the occupants living above Flat 2009 would have flushed their water closets more than once per day, likely leading to there being more than one episodes of overflow. And for every overflow, the debris that obstructed the slits of the drain cover could be washed away, clearing the way for foul water to escape via the Flat 2009 Floor Drain.
136. Mr Kwan drew Dr Lam’s attention to a photograph showing the condition of the lavatory in Flat 2009 after the 3rd Flood (“Photo B149”).[46] It could be seen that the Flat 2009 Floor Drain was submerged under a mass of debris. Dr Lam disagreed that this was clear evidence that the cover of the Flat 2009 Floor Drain was blocked during subsistence of the 3rd Flood, as Photo B149 was taken after the cleaners had vacuumed or scooped away the foul water accumulated inside the lavatory.[47]
137. On the assumption that the Flat 2009 Floor Drain were totally concealed by debris, Dr Lam agreed that the flooding would happen regardless of whether the blockage was at the Embedded Section, Point (B) or Point (W).
138. Turning to where Mr Chan had found the blockage, Mr Kwan relied on the measurements in Chan’s Diagram to suggest that 1.19 metres from the top of the opening should reach the top end of Point (B). This was accepted by Dr Lam, based on what was drawn in Chan’s Diagram. He also concurred with Mr Kwan’s suggestion that blockage at the top of Point (B) created no obstruction for foul water to escape from the lavatory through the Flat 2009 Floor Drain.
139. As to the test done by Mr Lam after the 2nd Flood, Dr Lam considered it to be appropriate and adequate. What should be observed was the discharge rate of the water when flushed. If the discharge rate was normal, that represented there was no blockage of the soil pipe. He further elaborated that, if the discharge rate was slow, the flush water that came down from the cistern would accumulate inside the water closet, causing the water level to rise before slowly lowering. This would indicate there was at least partial blockage of the soil pipe. Such observation required no trained-eye, as lay persons would flush their water closets every day, and such abnormality could be easily detected.
140. Finally, Dr Lam disagreed that it was easier for residual material to accumulate on soil pipes made of iron cast soil pipe than those made of PVC because there could be rust in the inner surface of the former.
141. Dr Lam was not re-examined by Mr Wong.
ANALYSIS
142. I will start by setting out the guiding principles on the duty imposed on an incorporated owners and manager of a building.
143. Both Mr Kwan and Mr Wong cited the Court of Appeal judgment of Lo Yuk Chu v Hang Yick Properties Management Ltd[48] to exemplify that the duties imposed on incorporated owners and managers under deed of mutual covenant are not absolute duties. The overall duty imposed is one of proper management, which entails doing all that is reasonably required of a manager in the circumstances. Furthermore, despite the duties prescribed under section 18(1) of the BMO, the incorporated owners do not provide an insurance to the extent that if some part of the building becomes in disrepair, the same would be liable automatically. Liability may arise if there is fault, and if, having been made aware of a defect which requires remedy, the incorporated owners failed to take appropriate steps.[49] The building management duties under common law, eg in the tort of negligence, is no wider than those under the deed of mutual covenant.[50]
144. With these in mind, I will now discuss on the issues below. But as a preview of my judgment, I will begin by saying that what appeared to me as odds stacked against the plaintiff entering into the trial had become insurmountable deficiencies at the end of it. The implosion of the plaintiff’s case was so great that, despite Mr Kwan’s valiant efforts, proved to be incurable.
Cause of the 3rd Flood
145. I find it more convenient to resolve this issue first, as my finding on it will shed light on the causal connection, if any, between the 2nd and 3rd Floods. But before doing so, it is imperative to revisit the fundamental principle on pleadings.
146. In Kwok Chin Wing v 21 Holdings Ltd,[51] Ma CJ made it abundantly clear on the importance of pleadings:-
“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues: Wing Hang Bank Ltd v Crystal Jet International Lid. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Ltd v Crystal Jet International Ltd:
“(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be “slipped in” when evidence is being given in the hope that the other side is not sufficiently alert to object.”” (emphasis added)
147. In another Court of Final Appeal judgment,[52] Ribeiro PJ reminded litigants on the need to raise all issues in their pleadings:-
“30. The fact that the plaintiff was unprepared to argue an essential aspect of its unpleaded alternative indicates just how unacceptable it was to allow this purported alternative to be run. A party must raise all the issues he wishes to raise to be dealt with at the trial. Parties are not entitled to have issues recently thought up dealt with separately and piecemeal. The other party is entitled to know from a clear pleading what is the entire case he has to meet so that he can decide whether particulars should be sought; how he should plead in response; what discovery he is entitled to; what evidence he should adduce to meet it; and what points of law should be taken. Notions like “the entire quantity of the mud dredged from the CT9 project” might be studded with arguable questions as to how such quantity should be ascertained dependent on the evidence. If there was room for exceptions regarding bad weather or anything else, the scope and effect of such exceptions could no doubt throw up factual and legal questions.
31. Where a late attempt is made to introduce a new case, it is doubly important that the other side should have a clearly pleaded draft amendment so that proper consideration can be given as to whether objections should properly be made to such amendment and whether an adjournment should be sought.
……
34. Pleadings are not mere formalities. They impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly.”
148. In essence, parties are bound by their pleadings. They are the constitution of the litigants’ cases and should not be deviated from unless and until amendments were sought and granted.
149. Now on to the discussion of the cause of the 3rd Flood. As per her pleaded case, the plaintiff alleged that the blockage was found at the junction between 2009 PVC Pipe and the remaining Iron Soil Pipe inside Flat 2009. Although it is not expressly pleaded, I could appreciate that the junction mentioned was located at or close to the Embedded Section. Her 1st witness statement also supported such case, as she claimed that the towel which caused the blockage was unearthed by a plumber from the Embedded Section. Furthermore, there is no disagreement between the parties that the Embedded Section of the soil pipe was made with iron cast at the time of the 3rd Flood.
150. I must admit, simply by reading the amended statement of claim, one might form a view that the blockage was found in the Iron Soil Pipe located inside Flat 1909, stemming from the reference to the replacement of Iron Soil Pipe therein after the 3rd Flood, and further clouded by the plaintiff’s repeated complaints of Nice Property’s failure to have the same replaced after the 1st Flood. However, these puzzlements took nothing away from her pleaded case as to where the towel, which caused the blockage, was found.
151. Pausing here, one should note there is a difference as to what caused the blockage. The plaintiff described it as a towel, whilst Mr Chan said it was 2 cloth pieces. I find in favour of the latter, as Mr Chan was the person who clawed the blockage down and inspected them, and the plaintiff admittedly did not see them at all.
152. Being tied down to such case, the plaintiff’s testimony at trial successfully undermined it. Contrary to her evidence-in-chief, she conceded under cross-examination that the cloth pieces were found not from the Embedded Section but from the 1909 PVC Pipe. As the same was removed from Flat 1909, she had neither seen nor taken any photograph of the same. She confirmed that there is no truth in the description to Photo No 36, as no residual material was removed from the Embedded Section. Instead, the bag depicted therein contained sand and fragments of concrete that came out from the concrete plinth which was broken open when remedial work was performed. This answer was repeated by the plaintiff when she was re-examined by Mr Kwan.
153. The above might have the effect of only denting her own case, but totally destroyed Mr V Ho’s opinion as to the location of the blockage, ie the Embedded Section under Scenario 2. He admitted that his opinion on this point based primarily, if not entirely, on the description to Photo No 36. Interestingly, Mr V Ho stuck to his opinion by coming up with the excuses for the plaintiff, stating that she is merely a lay person and might not have given her full answer. He further suggested that it was impossible for all the sands and concrete fragments to be carried away in just one bag. I am not at all persuaded by these excuses. The plaintiff’s evidence given under cross-examination and re-examination on this issue are firm and unequivocal, and she even went to the extent of saying in court that the description to Photo No 36 came not from her but from her lawyers. As to the impossibility of one bag containing all sands and concrete fragments, I have heard no evidence from anyone that the sands and concrete fragments were all removed in one bag only.
154. Mr V Ho’s other argument is also unattractive. The reasonable suspicion that he described, i.e. since Photo No 36 was taken at the door of the lavatory, the contents of the bag could contain residual material removed from inside the Embedded Section, is ludicrous. I wonder what suspicion he would have if the photograph was captured at the main door just before the bag was taken out of Flat 2009.
155. Be that as it may, there is still a chance to salvage her case if it could be proved that the blockage was clawed down by Mr Chan from the Embedded Section when he was working inside Flat 1909. In this regard, Mr Kwan had gone to great length in his cross-examination and submissions to suggest that this was the case. I am not convinced.
156. Mr Chan gave clear evidence that he found the blockage from near the bottom of Point (B). He went on to search for blockage at the Embedded Section and beyond but found nothing. There is no other eye-witness to contradict what he said.
157. Mr Kwan’s method of gainsaying it was by reference to the measurements given in Chan’s Diagram. He said that 1.19 metres from the top of the opening (which is 1.2 metres from the floor of the lavatory in Flat 1909) on 1909 PVC Pipe should be 0.21 metre from the ceiling, and according to Chan’s Diagram, it was around the top of Point (B). He suggested that when Mr Chan felt the blockage there, it could be the tails of the cloth pieces. If so, there was a chance that the cloth pieces were caught within the Embedded Section. I am unable to accept this.
158. First, the whole proposition was never put to Mr Chan when he was cross-examined. Indorsement of the same was not even obtained from his expert Mr V Ho.
159. Second, what Mr Kwan then suggested was to have this court find that only the tails of the cloth pieces were found at the top of Point (B), but there is simply no evidence for me to make such a finding. Conversely, adopting Mr Chan’s measurement of 4 inches as the length of each cloth piece, it is equivalent to 101.6 millimetres, or 0.1016 metre.[53] With the distance between the ceiling and the top of Point (B), according to Mr Kwan, being 210 millimetres or 0.21 metre, and assuming that the head of the cloth piece was caught at close to the bottom of the Embedded Section, and with the cloth piece hanging vertically, the tail of the cloth piece would still be suspended 108.4 millimetres or 0.1084 metre above and away from the top of Point (B). I cannot see how this proposition would work.
160. Dr Lam’s opinion that the blockage was found just below Point (B) not only is harmonious with Mr Chan’s evidence that it was at the bottom of Point (B), it is also an educated estimation. His justification that blockage at Point (B) or below would obstruct foul water to flow through directly from the main soil pipe, and also from the Flat 2009 Floor Drain via the 2009 Drainage Pipe, logically explained why the foul water continued to accumulate inside the lavatory which eventually spread to the entire Flat 2009 and beyond. Such estimation was echoed by Mr Ho and received no criticism from Mr V Ho.
161. Mr Kwan’s resistance to this is yet another proposition that the Flat 2009 Floor Drain could be blocked by the debris at the time of the 3rd Flood. But the photographs relied upon by Mr Kwan, as Dr Lam pointed out, were taken after the foul water was removed.[54] Unfortunately, this proposition was neither confirmed with the plaintiff nor Mr Yuen whom arrived at Flat 2009 when it was still flooded. Nothing was asked of them as to how the foul water accumulated inside the lavatory, as seen in Photo B149, was drained. It could be that the debris blocking the Flat 2009 Floor Drain was removed by the plaintiff or the cleaners, which led to the foul water escaping through the same. This would lend support to Mr Kwan’s proposition and defeat Dr Lam’s view. It could also be that, despite doing so, there was no change to the condition and the cleaners had to scoop or vacuum the foul water away, which would further strengthen Dr Lam’s view. Alas, an opportunity to gain insight into this was missed out.
162. There remains the expert evidence of Mr V Ho to salvage the plaintiff’s case. I must say I am not impressed with him, not only with his credential as an expert, but also the opinions that he rendered. A negative first impression is inevitable when he admittedly misled this court as to his involvement in the water leakage cases that he had listed out in his Curriculum Vitae. Even for the 6 cases that he was retained as an expert, oddly only 2 of them have their case numbers provided, ie DCCJ 2773/2009 and DCCJ 3716/2017. Judgment could only be found for DCCJ 2773/2009. Suffice it to say, the learned judge presiding over that case was also not impressed with Mr V Ho’s performance as an expert.[55]
163. In spite of the above, I have not let the first impression disturbed my consideration of his opinions. However, I find them to be baffling at best. The conclusion that he reached under Ho’s Expert Report, ie Scenario 2, comes with the question whether it is truly his view. Uncertainty as to whom was the true maker of Ho’s Sketch remains unanswered. This is critical as one could see that the definitions of Scenario 1 and Scenario 2 were given not in the body of Ho’s Expert Report, but in Ho’s Sketch. If it was truly the creation of Mr V Ho after the inspection on 23 January 2018, it is inexplicable for the same to appear in Mr Hau Tung Chow’s report dated 20 July 2015. Even if it was included therein by mistake, as suggested by Mr Kwan, it could not have been a mistake that Ho’s Sketch was already in existence in July 2017 when the plaintiff filed her affirmation in support of her application for leave to adduce the expert evidence of Mr John Ho. Mr V Ho added in court that he and Mr John Ho did not conduct any inspection of Flat 2009 until after such leave was granted by the court. The mystery is unsolved.
164. Assuming that Scenario 2 was his own opinion, ie the blockage was at the Embedded Section during the 3rd Flood, one could not ignore his admission that the opinion was given based on the description to Photo No 36, which the plaintiff had made clear at trial as incorrect. I am amazed when he said, without explanation, his opinion remained the same regardless of whether the blockage was found in the 1909 PVC Pipe or the Embedded Section. This is a crucial issue between the parties which should not be dismissed from his consideration without reason. The amazement continued when he agreed that the 3rd Flood was caused by blockage at 1909 PVC Pipe, but at the same time disagreed that the blockage did not happen at the Embedded Section. Again, he had not bothered to enlighten the court as to the rationale behind these answers.
165. On top of the above, I have not lost sight of his agreement with Dr Lam in the Joint Expert Report that the blockage was located below Point (B) and near Point (W). I do not accept his explanation in court that such agreement stemmed from the assumption that Dr Lam’s estimation was correct. It is inexplicable for him to render his final conclusion based on the assumption that the opposing expert’s view is correct.
166. Finally, I will not read too much into Mr V Ho’s challenge on Mr Chan’s measurements as reproduced in § 117(5) of this judgment. The challenge was premised on the measurements of the main soil pipe from the top of the Water Closet Pipe in Flat 2009 to Point (W) in Flat 1909. However, as per Mr Chan’s evidence, he did not attend Flat 2009 on the day in question, and Chan’s Diagram was drawn by his colleague based on the information given by Mr Chan. The accuracy of the measurements inside Flat 2009 contained in Chan’s Diagram is called into question. On this point, I reiterate what I have said in § 160 of this judgment.
167. In light of the above analysis, I find that, at the time of the 3rd Flood, 2 cloth pieces were stuck inside 1909 PVC Pipe below the bottom of Point (B) or close to Point (W). These foreign objects created blockage not only to the flow of foul water coming down directly through the main soil pipe from the units above Flat 2009, but also the foul water overflown from the water closet that could have escaped from the Flat 2009 Floor Drain via the 2009 Drainage Pipe. I find that this was the cause of the 3rd Flood.
Causal connection between the 2nd and 3rd Floods and the cause of the 2nd Flood
168. It is the plaintiff’s case that there was causal connection between the 2nd and 3rd Floods, in that the rusty Embedded Section was the same culprit. The plaintiff pleaded that the Embedded Section remained clogged after the 2nd Flood. Based on my findings above, this argument is unsustainable. The Embedded Section was not blocked at the time of the 3rd Flood.
169. In addition, there is no evidence to support this belief. In particular, it could not have been the case that the same 2 cloth pieces were already blocking the Embedded Section or the 1909 PVC Pipe at the time of the 2nd Flood, otherwise the flood would have continued after 14 August 2014, which is denied by all factual witnesses involved, including the plaintiff.
170. If what caused the 2nd Flood were other debris and/or materials blocking the Embedded Section, and it remained clogged by the same leading to the 3rd Flood, it begs the same question why the flood ceased after 14 August 2014. Although Mr V Ho gave no direct reply on this, I have considered whether his opinions on other aspects of the case could shed light on this question. For instance, whilst contesting on the worth of the test done by Mr Lam, Mr V Ho suggested that foul water could still seep through small openings within the debris and/or materials stuck inside the Embedded Section, thus allowing the flush water to be discharged from the water closet in Flat 2009. In other words, the Embedded Section could still be clogged notwithstanding that the test result seemed positive.
171. Taking this point to the highest, it still entails two further questions. First, the test conducted by Mr Lam revealed no abnormality as to the discharge rate of the water flushed into the water closet. The same observation was made by the plaintiff when she used the water closet between 14 and 23 August 2014 for one night when she resided therein, and on the occasions when she returned to Flat 2009. This echoed that there was no blockage or even partial blockage at the Embedded Section. Mr V Ho tried to counter this by questioning Mr Lam’s qualification in making the assessment. On this argument, I agree with Dr Lam’s explanation: one need no special qualification to detect abnormality in the discharge rate of the water closet. If there was blockage or partial blockage at the Embedded Section, the flush water that came down from the cistern would accumulate inside the water closet causing the water level to rise before coming back down gradually. When one sees this happening to his water closet, it is a signal that he should be calling a plumber, or he will at least try unclogging the blockage himself.
172. Second, and more importantly, if the Embedded Section remained clogged by debris and/or materials, which were serious enough to cause the 2nd Flood, how did the cloth pieces pass through them and made it to Point (B) at the time of the 3rd Flood? Regrettably, I am unable to find any information from Mr V Ho’s reports that could possibly answer this question. Conversely, I find Dr Lam’s explanation reproduced in paragraph 129 above, albeit speculative, logical and believable.
173. For the reasons above, I find that there is no causal connection between the 2nd and 3rd Floods.
174. I now turn to the cause of the 2nd Flood. It is undisputed between parties that the true cause of the same is unknown. Mr V Ho’s speculation that the blockage happened at the Embedded Section, in my view, could be disregarded, as he admittedly relied on the incorrect description to Photo No 36. In addition, it could not explain why the flood would spread to the entire Flat 2009 if the blockage happened at the Embedded Section. Like in the 3rd Flood, blockage at the Embedded Section would not prevent the foul water from escaping through the Flat 2009 Floor Drain and the 2009 Drainage Pipe. I hear no suggestion from Mr Kwan that this was also due to the former being blocked by debris overflown from the water closet, and even if he did, I would have disposed of it with the same reasons I have given in the above.
175. Dr Lam, having considered the extent of the flood, suggested the main soil pipe should have been blocked at the time of the 2nd Flood, and the likely location of such blockage should be similar to that in the 3rd Flood, ie inside 1909 PVC Pipe at Point (B) or somewhere below it. Seeing the similarities between the 2nd and 3rd Floods, I agree with Dr Lam. I also accept his suggestion that the blockage was caused by occupants depositing foreign objects that constituted abnormal usage of the main soil pipe.
176. For the above reasons, I find that the 2nd Flood was caused by foreign objects blocking Point (B) of 1909 PVC Pipe, which was cleared by occupants living above Flat 2009 by use of chemicals such as un-blocker, or even soda, acid etcetera. I also find that the 2nd Flood was not caused by blockage at the Embedded Section.
Has the defendant failed to discharge its duty (if any) after the occurrence of the 2nd Flood was reported to Nice Property
177. The attribute of this issue is that the 3rd Flood was somehow a sequel to the 2nd Flood, which I have ruled against. As such, further inspection or remedial work, for example replacement of the Embedded Section, would not have prevented the occurrence of the 3rd Flood.
178. Considering the 2nd Flood in isolation, discharge of the defendant’s duty after its occurrence, if any, would bring no changes to the reality that damage had been done. In my view, further discussion on this would be nothing more than being academic. Supposing that I should, I would find that nothing more needed to be done: (1) as the overflow of foul water had ceased after 14 August 2014; (2) the test conducted by Mr Lam revealed no blockage of the soil pipe; together with (3) the plaintiff reported that no abnormality after using the water closet. In short, there was no defect, leakage and/or overflow of foul water which warranted further inspection of the soil pipe or remedial work to be done, pursuant to the guidelines cited by Mr V Ho and Dr Lam.
179. As such, discussions about what transpired during the telephone conversations between the staff of Nice Property and the plaintiff after the 2nd Flood is redundant.
180. I need only to mention in passing that the defendant had, after the 2nd Flood issued a notice dated 18 August 2014 to the occupants, reminding them to refrain from improper use of the common soil pipe.
181. For these reasons, my answer to this question is a simple “No”.
Whether and to what extent the defendant had a duty in relation to the maintenance of the common soil pipes of the Building?
182. As I have set out earlier in this judgment, the defendant has no objection to the duty imposed upon it under clauses 20(g) and 20(j) of the DMC, nor those under sections 18(1) and 34I of the BMO. The extent of these duties has been set out in § 143 of this judgment.
183. Apart from the above, this question was answered by the experts of both parties by reference to the various guidelines. For clarity sake, I shall repeat that Mr V Ho agreed neither the DMC nor the Code of Practice of Building Management and Maintenance cited in Ho’s Expert Report regarded removing rust, debris and/or waste from inside the soil pipes as routine maintenance of the same. Dr Lam shared the same view after referring to the “Guidelines on Maintenance and Repair of Drainage System and Sanitary Fitments” published by the Buildings Department.
184. Hence, the plaintiff’s accusations under §§ 11(f) and (g) of the amended statement of claim could not stand.
Whether the 3rd Flood was caused by the defendant’s failure to discharge its duty to maintain the common soil pipe (as alleged by the plaintiff) or that it was due to the improper and unscrupulous use of the drainage system beyond the scope of duty of the defendant?
185. Combination of my findings above have sufficiently answered this issue. First, the defendant’s duty to maintain the common soil pipe did not require it to remove rust, debris and/or waste from the inner surface of the common soil pipes as a routine. Second, and come what may, the 3rd Flood was not caused by any blockage at the Embedded Section. As such, whether or not the Embedded Section was rusty and/or in a dilapidated condition, as alleged by the plaintiff, is irrelevant. Third, the blockage was due to the 2 cloth pieces improperly deposited into the soil pipe by the occupants of the Building. Hence the question of whether the 3rd Flood was due to the improper and unscrupulous use of the drainage system beyond the scope of duty of the defendant is answered in the affirmative.
Is the defendant liable to the plaintiff on the ground of nuisance?
186. This issue could be disposed of briefly.
187. As per Mr Kwan’s opening submissions, the plaintiff’s case on nuisance rests on the notion that, in full knowledge of the 1st and 2nd Floods, the defendant had chosen not to investigate, locate and repair the cause of the same in prompt and reasonable manner. The result of such inaction caused nuisance to the plaintiff, denying her from the use and enjoyment of Flat 2009. Mr Kwan cited the principle as set out in Lam Suk Yee & Anor v The Incorporated Owners of Kam Kin Mansion[56]to support this:-
“155. Private nuisance is basically unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. Generally, the essence of nuisance is a state of affairs that is either continuous or recurrent, a condition or activity which unduly interferes with the use or enjoyment of land…”
188. Mr Kwan also relied on Yan Wing Fai Rick & Anor v Century One Limited[57] to suggest that once the defendant in that case was made aware that there was a water leakage the source of which could reasonably be identified to be from its property, it has the duty to investigate, locate and repair such water leakage in a prompt and reasonable manner.
189. I do not see how the case of Yan Wing Fai Rick is relevant to the present one. That case involved 2 occupants, with the defendant occupying the unit above and the plaintiff residing at the unit below. There was water leakage from the upper unit, causing damage to the plaintiff’s unit, disrupting his enjoyment of the same. Conversely, I note the case of Expert Winner Limited v The Incorporated Owners of Cameron House[58], where H H Judge Yung explained on the duty of an incorporated owners:-
“11. The Applicant might have misunderstood and misconceived the scope of duty of the manager of a building or that of an owners incorporation. This might be in part due to the high expectation of the manager in question that Ms Chan of the Applicant at one time harboured. The case of the Applicant as presented is convoluted. In so far as the Applicant insisted on relying on the failure on the part of the manager or the Respondent to identify the cause of the leakage, it would be futile.
12. Under the Building Management Ordinance neither the manager nor the owners incorporation is under a general duty to identify the cause of the leakage problem of individual flats, or to tackle a leakage problem in individual flats. There is no evidence that the DMC in the instant case imposes such duty on them. In the context of current dispute, under the Building Management Ordinance the duty of the Respondent as an owners incorporation is only to keep in good repairs the common parts, namely, the external walls.” (emphasis added)
190. Adopting the above, Mr Wong argued that neither clauses 20(g) and 20(j) of the DMC, nor sections 18(1) and 34I of the BMO, imposed a duty on the defendant and Nice Property to identify the cause of the 1st to 3rd Floods, and to investigate and locate the blockage.
191. I do not see the need to engage in these legal arguments in the present case. The 2nd and 3rd Floods, as I have held above, were due to foreign objects being deposited into the main soil pipe by occupants of the Building. The 1st Flood was caused by, at least partially, the mop head deposited into the main soil pipe. On all 3 occasions, Nice Property had sent its staff to inspect, and for the 1st and 3rd Floods, arranged for remedial action to be taken. As to the 2nd Flood, I do not agree that further inspection or remedial work should be undertaken for the reasons I have stated in § 178 above. The only blemish that one could likely speak of is regarding its failure to secure the consent of the owner of Flat 1909 to replace the Embedded Section with a PVC pipe after the 1st Flood. Be that as it may, it was not the cause of the 2nd and 3rd Floods as I have so find.
192. In his closing submissions, Mr Kwan expanded on this issue by alleging that the defendant had failed to inform the plaintiff about the 3rd Flood after its occurrence. His submissions are premised on the admission of Ms Hsu that she did not, in her WhatsApp messages to the plaintiff, make specific reference to the 3rd Flood, but simply mentioning that it was a matter of urgency. Mr Kwan suggested that, if Ms Hsu and her colleagues had been more specific, the plaintiff could have returned to Hong Kong earlier and therefore minimised the loss she had suffered. As such, the defendant ought to be liable to the plaintiff on the ground of nuisance as the former had actual and constructive knowledge of the 3rd Flood and had failed to take remedial action within reasonable time.[59]
193. To this, I need only say it is the plaintiff’s case all along that she was in the Mainland at the material time and did not receive any of the messages or telephone calls from the staff of Nice Property until after 10 pm on 25 August 2014. What Mr Kwan has suggested is contrary to her case. If his submissions were to be accepted, it would lend credence to what Ms Hsu had said as reproduced in § 93 of this judgment.
CONCLUSIONS
194. For the above reasons, I find that the plaintiff has failed in her case against the defendant, whether it is for breach of the DMC or BMO, negligence or nuisance. The plaintiff’s claim against the defendant is dismissed. It follows that any discussion on contributory negligence on the part of the plaintiff as alleged by the defendant is unnecessary. Likewise, there requires no discussion on the issue of quantum.
195. I would make an order nisi that the plaintiff shall pay the defendant’s costs of this action, including all costs previously reserved, and such costs to be taxed if not agreed with certificate for counsel. The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations. Such order will become absolute in the absence of any application to vary the same within 14 days from the date of handing down of this judgment.
196. Lastly, I thank counsel for their assistance.
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( David Chan ) |
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Deputy District Judge |
Mr Ray Kwan, instructed by Au Yeung, Cheng, Ho & Tin, assigned by the Director of Legal Aid, for the plaintiff
Mr Wong Cho Lik, instructed by Edmund Cheung & Co, for the defendant
[1] See DMC at p 30 of Trial Bundle B
[2] See pp 228-230 of Trial Bundle B; Forms 1 to 3 issued from the Small Claims Tribunal with case no. SCTC 1669/2011
[3] See pp 231-232 of Trial Bundle B; Notice of Discontinuance of Claim and the settlement agreement both dated 29 March 2011
[4] Both Mr Kwan and Mr Wong agreed that the expert witnesses were to give their evidence at the end, after hearing the evidence of all factual witnesses
[5] See Incident Report at p 119 of Trial Bundle B
[6]` See p 132 of Trial Bundle B
[7] See p 135 of Trial Bundle B
[8] See § 10 of the plaintiff’s 1st witness statement, at pp 82-83 of Trial Bundle A
[9] At § 18, p 86 of Trial Bundle A
[10] See § 8 of this Judgment and § 7(h) of the amended statement of claim at p 10 of Trial Bundle A
[11] See p 161 of Trial Bundle B
[12] See photograph at p 153 of Trial Bundle B for the location of the drain
[13] See: report of Mr Ho Fuk Kwong, Victor at p 183 of Trial Bundle A
[14] See p 190 of Trial Bundle B
[15] See pp 215, 218, 233, 240, 245 of Trial Bundle B; and pp 251, 253 and 260 of Trial Bundle C
[16] Mr Lam had also left the employ of Nice Property
[17] Incident report at p 259 of Trial Bundle C
[18] See incident report at p 266 of Trial Bundle C
[19] Respectively see pp 259-1 to 259-7, and pp 267 to 287 of Trial Bundle C
[20] See Chapter 5 of the Owners’ Handbook at p 322 of Trial Bundle C
[21] See clause (4) under Part II of the Tenancy Agreement provided by the Housing Authority, at p 307 of Trial Bundle C
[22] See pp 209 to 212 of Trial Bundle B
[23] See pp 209-1 to 209-3 of Trial Bundle B
[24] See the incident report at p 216 of Trial Bundle B
[25] See p 73 of Trial Bundle A
[26] See pp 291 to 292 of Trial Bundle C
[27] The spot was marked as “position (II)” on Ho’s Drawing
[28] See p 273 of Trial Bundle C
[29] See p 292 of Trial Bundle C; point (B) is the same as Position (II) in Ho’s Drawing
[30] Ibid, marked in the diagram as point (A)
[31] See Order of Master S H Lee dated 27 November 2017, at pp 238-240 of Trial Bundle A
[32] By the time of this Order, the statement of claim has already been amended
[33] See p 166 of Trial Bundle A, at § 7.7, the Embedded Section was marked as (B) in Ho’s Sketch; p 165 of Trial Bundle A, at § 7.6, the Water Closet Pipe was marked as (A) in Ho’s Sketch
[34] See p 194 of Trial Bundle A
[35] Ibid.
[36] See pp 208-209 of Trial Bundle A; Mr V Ho said that the blockage was between “Location 1” and “Location 2”, with location 2 at about the same spot as Point (W)
[37] Tendered to the court as exhibit marked as “P-2”.
[38] See § 1 of the Order of Master S H Lee at p 239 of Trial Bundle A. The plaintiff’s expert was changed to Mr V Ho by the Order of Deputy District Judge S H Lee dated 15 May 2019, at § 1.
[39] Filed on 27 February 2018
[40] Filed on 4 July 2018
[41] This affirmation was made in support of the plaintiff’s application to adduce expert evidence in the present case: see Summons dated 27 July 2017
[42] See p 218 of Trial Bundle A
[43] See § 4.9 of the Code of Practice of Building Management and Maintenance, at p 201 of Trial Bundle A.
[44] See p 157 of Trial Bundle A
[45] See p 209 of Trial Bundle A
[46] See p 149 of Trial Bundle B
[47] For the condition of the lavatory before foul water was cleared, see the photograph at the bottom right of p 268, Trial Bundle C
[48] [1996] 4 HKC 278
[49] See Lau Chun Wing Rod v The Incorporated Owners of Po On Building, (unreported, CACV 20/2007, Rogers VP, 1 November 2007) at §§ 11-12.
[50] See Ma Chung Lam & Anor v Citybase Property Management Ltd [2007] 1 HKC 192 at § 24
[51] (2013) 16 HKCFAR 663
[52] Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632
[53] 1 inch is equivalent to 25.4 millimetres
[54] See pp 148 and 149 of Trial Bundle B
[55] Yan Wing Fai Rick & Anor v Century One Limited [2011] HKEC 167 at §§ 59 to 79
[56] [2018] HKCFI 2760
[57] Supra, footnote 55, at § 85 of that judgment
[58] (unreported, LDBM 169/2004, 11 April 2007)
[59] See §§ 41 and 42 of his closing submissions
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