|
HCA 495/2012
[2019] HKCFI 1895
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
HIGH COURT ACTION NO 495 OF 2012
________________________
BETWEEN
| BETWEEN |
|
|
| |
LOKE YUEN JEAN TAK ALICE |
Plaintiff |
| |
and |
|
| |
WONG KIT YING |
1st Defendant |
| |
PHILIPPE NEVEU |
2nd Defendant |
| |
and |
|
| |
PHILIPPE NEVEU |
1st Third Party |
| |
JORDAHL HONG KONG LIMITED |
2nd Third Party |
___________________________
Before : Hon Marlene Ng J in Court
Dates of Hearing: 20-23 and 26-30 June 2017 and 3-7 and 21 July 2017
Date of Handing Down Judgment : 1 August 2019
________________
JUDGMENT
________________
I. INTRODUCTION
1. Villa Dorada, No 126 Blue Pool Road, Hong Kong (“Villa Dorada”) was a residential building estate made up of 3 buildings one of which (“Building”) comprised Blocks A-E (“Blocks A-E”). The Building was built in 1977 with ground floor (“G/F”), 1st floor (“1/F”), 2nd floor (“2/F”) being domestic flat units (“Flats GE, 1E and 2E”), and roof (“Roof”) being a carpark (“Carpark”). The present action concerned Flat GE and Flat 1E (directly above Flat GE but with different size and layout).
2. The plaintiff (“P”) was the owner of Flat GE. In April 2000 P and her husband Loke Aaron Ngai Lun (“Loke Sr”) purchased Flat GE, and lived there with (a) their son Loke Alexander Aaron Eugene (“Loke Jr”) who went abroad in August 2002 but returned in March/April 2010 to stay briefly at Flat GE before moving out in June 2010, and (b) a helper from May/June 2008 until the summer of 2010. Loke Sr passed away on 12 May 2010, and P became the sole owner of Flat GE. P left in early 2012, and since then Flat GE was vacant.
3. The 1st defendant (“D1”) was the owner/landlord of Flat 1E. In September 2002 D1 purchased Flat 1E, which became home to D1, her then husband Li Wan Yiu (later divorced, “Li”), daughter (“Daughter”) and helper until mid-2006. D1/Li shuttled between Mainland China (where they had their businesses) and Hong Kong, but the Daughter stayed at Flat GE with the helper. In mid-2006, D1 and her family moved out, and Flat 1E remained unoccupied until it was let in early 2007 via D1’s agent Linda Lo (“Linda”) of Broadview Real Estate Agency Co (“Broadview”).
4. At the time, the 2nd defendant who was also the 1st third party (“D2” and “TP1”) was the employed managing director of the 2nd third party Jordahl Hong Kong Limited (formerly known as Sino Laker Limited, “TP2”). Since early 2007 TP2 rented Flat 1E as staff residence for D2/TP1 and his wife, 2 children and helper as licensees. In January/February 2007, D2/TP1 and/or TP2 took possession and renovated Flat 1E. In March 2007, D2/TP1 and his family moved in after completion of the renovations in early March 2007. They left in late June or early July 2011.
5. Before October 2007, Selex Properties Management Company Limited (“Selex Properties”) was the manager of Villa Dorada (“Manager”). In October 2007, Chief Real Estate & Assets Management Limited (“Chief RE”) succeeded Selex Properties as the Manager. The Manager had a building management office (“BMO”) and employed caretakers including a Mr Wong (“Wong”). D1 mainly liaised with Wong, and after moving out of Flat 1E she returned now and then to collect received letters from Wong.
6. On 26 March 2012, P commenced legal action (“Main Proceedings”) against D1 and D2 (collectively, “Ds”) for loss/damages as a result of water leakages at Flat GE between November 2006 and March 2012 that allegedly came from Flat 1E and (a) constituted nuisance Ds knew or ought to have known but permitted to continue and/or (b) were caused by Ds’ negligence.
7. On 15 and 21 June 2012, D1 and D2 commenced contribution claims against each other (“Contribution Proceedings”) for indemnity/ contribution in the event either of them were held liable to P in the Main Proceedings. On 14 April 2014, D1 commenced third party claim against TP1 and TP2 (collectively, “TPs”) for indemnity/contribution (“Third Party Proceedings”) based on D2’s/TP1’s alleged breach of contract / negligence, and TP2’s alleged breach of the Tenancies referred to in paragraph 31 below.
II. FLAT GE
8. Flat GE was originally 120 sq m in size. Copy original layout plan of Flat GE and copy modified layout plan of Flat GE at the relevant times are respectively annexed to this judgment as schedule 1 (“Schedule 1”)[1] and schedule 2 (“Schedule 2”).[2] As seen in the original layout drawing of the G/F,[3] Flat 1E was separated from 1st floor flat unit of Block C (“Flat 1C”) by a dividing wall.
9. Flat GE’s original reinforced concrete external walls included (a) those with windows facing the yard outside the 2 bedrooms and kitchen at the rear of Flat GE (“Yard”), (b) those around the light well sandwiched between the master and guest bathrooms at the rear of Flat GE (“Light Well”), and (c) those with windows facing the courtyard adjacent to the living area at the front of Flat GE (“Courtyard”). The Yard, Light Well and Courtyard used to be open spaces (“G/F Open Spaces”).
10. But (i) most original external walls referred to in paragraph 9 above and some original internal partition walls of Flat GE were modified/ demolished,[4] (ii) some beams were damaged (see paragraph 17(c) below[5]), and (iii) new walls/structures were built to enclose the G/F Open Spaces into interior parts:
| (a) |
The original external wall facing the Yard was demolished,[6] and a new window-less brickwork wall was erected to enclose the Yard as part of the Loke Jr Bedroom referred to in paragraph 11(b) below and the GE Living/Dining Areas referred to in paragraph 12(b)-(c) below (“Yard Structure”) (see renovation plan dated June 2000 disclosed by P (B1/471, “Renovation Plan”)). Such brickwork wall was behind the full-height wall cabinet in the Loke Jr Bedroom and the Old Cabinet referred to in paragraph 88(a) below (“Cabinet Wall”), and parallel to the existing wall that separated the Yard from the yard area on the ground floor of Block A where a structure similar to the Yard Structure was erected (“Neighbour Structure”) with an atrium (ie no rooftop) in between (“Atrium”). |
| (b) |
The original external walls around the Light Well were modified with provision for door openings on east and south sides, and a window-less structure was erected to enclose the Light Well to become an extension of the GE Master Bathroom (see paragraphs 11(e) and 17(b) below, “Light Well Structure”) with (i) rainwater drain on its rooftop (“Light Well Rooftop”) and (ii) 300mm high kerb at the open end of such rooftop (“Light Well Kerb”). |
| (c) |
The original external walls were demolished, and a window-less structure with new walls was erected to enclose part of the Courtyard to become an extension of the GE Living Area and a new GE Guest Toilet (see paragraph 11(f) below) (“Courtyard Structure”) with rainwater drains on the rooftop (“Courtyard Rooftop”). The new wall of the Courtyard Structure that faced the remaining open part of the Courtyard had some glazed glass blocks, and the new brickwork wall that enclosed the new GE Guest Toilet left a narrow strip of space alongside the boundary wall of Villa Dorada (“Rear Lane”). |
The Yard, Light Well and Courtyard Structures[7] (collectively, “GE Structures”) enlarged Flat GE’s floor area to 148 sq m. I find (as the Experts referred to in paragraph 44 below agreed) there was no proper access to the rooftops of the GE Structures (collectively, “Rooftops”) for routine cleaning, inspection, maintenance and/or repair.
11. Upon the aforesaid modifications at Flat GE,
| (a) |
the original larger bedroom became part of the living area; |
| (b) |
the original smaller bedroom encroached over part of the Yard Structure (“Loke Jr Bedroom”) with ensuite bathroom formed by (i) door opening to the bathroom north of the Light Well and (ii) closure of original door opening of such bathroom by brickwork wall (“Loke Jr Bathroom”); |
| (c) |
a new master bedroom was carved out of the living area by brickwork partition walls and door opening (“GE Master Bedroom”); |
| (d) |
a new study room was carved out of the living area with access to the living area through a concertina partition (“GE Study Room”); |
| (e) |
the original bathroom to the south of the Light Well (with shower cubicle at south side, toilet bowl (“Toilet Bowl”) at northeast corner (“Location TB”) and urinal (“Urinal”) at northwest corner (“Location U”), and Locations TB and U were collectively marked “B” in Exhibit P2 (“Locations B”)) (“Original BRm Area”) was retained as part of the ensuite master bathroom that expanded to the Light Well Structure (with wall mirror and double washbasins at west side (“Washbasin Area”), glass shelves on north/south walls and utility cabinet (“Utility Cabinet”) at northeast corner marked “C” in Exhibit P2 (“Location C”)) (“New BRm Area”) upon (i) closure of original door opening at the Original BRm Area to the original living area (modified to become the new master bedroom), (ii) erection of new open doorway of the original south external wall of the Light Well for access between the Original and New BRm Areas, and (iii) creation of new door opening at the original east external wall of the Light Well for access to the new master bedroom (“GE Master Bathroom”); |
| (f) |
the Courtyard Structure became an extension of the living area, and a new guest toilet (“GE Guest Toilet”) was formed in the Courtyard Structure by brickwork partition walls with door openings to the living area and study room; |
| (g) |
the partition walls of the kitchen (“GE Kitchen”) were demolished to become an open kitchen with door opening to the GE Laundry Room; |
| (h) |
the original servant’s room combined with the original verandah (which was enclosed) to become a helper/laundry/store room (“GE Laundry Room”). |
12. Thus, Flat GE comprised the following parts/areas seen in Schedule 2:
| (a) |
GE Master Bathroom, GE Master Bedroom, Loke Jr Bedroom, Loke Jr Bathroom, GE Study Room, GE Guest Toilet and GE Kitchen; |
| (b) |
living area that included part of the Yard and Courtyard Structures (“GE Living Area”);[8] |
| (c) |
dining area next to the GE Kitchen that included part of the Yard Structure (“GE Dining Area”);[9] |
| (d) |
GE Laundry Room with elevated bed used for storage purpose (“Helper Bed”) with (i) laundry rail underneath (“Laundry Rail”), (ii) wooden counter/shelf underneath the Laundry Rail (“Wooden Shelf”), and (iii) washing machine and clothes dryer underneath the Wooden Shelf close to the brickwork external wall with a panel of glazed glass block tiles at the far end of the GE Laundry Room (see the Renovation Plan) (“Glazed Wall” marked “A” on Exhibit P2 (“Location A”); |
| (e) |
helper’s toilet (“GE Helper Toilet”). |
13. Except for a small window in the GE Laundry Room designed to be openable (but the Experts in their Joint Report (referred to in paragraph 45 below) agreed it “was not openable for being blocked by the fixture”, “GE Window”), there were no openable windows in Flat GE for natural air ventilation. I find the GE Window was not ordinarily opened when the Helper Bed was used for storage purpose otherwise the stored items would be exposed to outside natural elements. There were non-openable glass skylights with metal frames at the Rooftops, and a small electric exhaust fan (“Exhaust Fan”) in the GE Helper Toilet.
14. Most ceilings of Flat GE were masked up with false ceilings except for the ceilings of the GE Laundry Room and GE Helper Toilet which were emulsion-painted. Flat GE (but not the GE Laundry Room and GE Helper Toilet) was fitted with an air-conditioning (“A/C”) and mechanical ventilation system (“ACV System”). D1’s surveyor expert Raymond Chi Cheung Wu (“Wu”) confirmed the A/C system itself was the ventilation system, and the Experts agreed Flat GE “would have no ventilation if the A/C services were suspended for whatever reason”. I set out brief findings on the ACV System below:
| (a) |
A pair of metal air ducts for fresh air intake and exhaust air discharge (“Intake and Discharge Ducts”) for the ACV System (collectively, “Air Ducts”) were (i) installed close to the ceiling at the GE Laundry Room marked “Y” in Exhibit P2 (“Location Y”, C1/36 and C1/45) with their inlet entering and outlet exiting the top part of the Glazed Wall, and (ii) operated by 2 fan-like machines in the ceiling plenum just outside the GE Laundry Room. The Intake Duct supplied fresh air to the ceiling plenum above the GE Kitchen, which fresh air was allowed to circulate inside the ceiling plenum of Flat GE, including bathrooms, kitchen, bedrooms and living/dining areas (but not the GE Laundry Room and GE Helper Toilet). The exhaust air went to the ceiling plenum before being discharged outside via the Discharge Duct. As air exchange could only take place within the ceiling plenum, it was less efficient than natural ventilation via openable windows. |
| (b) |
To provide chilled air, 3 A/C outdoor units mounted on the rooftop of the Yard Structure (“Yard Rooftop”) and 2 A/C outdoor units mounted on the 1/F external wall at the Courtyard were inter-connected to 8 fancoil units (affixed to the structural ceilings) by electrical conduits, refrigerant pipes and condensation pipes passing through the building envelope/fabric from the outside to the ceiling plenum of various rooms of Flat GE via holes/openings in the vertical walls above the false ceilings. |
| (c) |
The range hood in the GE Kitchen (“Range Hood”) when switched on would extract warm and humid exhaust air into the ceiling plenum before discharge outside via the Exhaust Duct. |
15. Save that walls in the GE Master / Loke Jr Bathrooms were marble-finished, 2 walls in the GE Living/Dining Areas were stone- finished, and walls in the GE Helper Toilet were tile-finished, other walls/columns/beams of Flat GE were emulsion-painted and/or masked with wooden furring (with no access panels). As for the floor finish of Flat GE, (a) the GE Master / Loke Jr Bedrooms and GE Study Room had timber floor, (b) the GE Master / Loke Jr Bathrooms and GE Guest Toilet had marble-panelled floor, (c) the GE Helper Toilet and GE Laundry Room had ceramic-tiled floor, and (d) the GE Living/Dining Areas and GE Kitchen had a layer of white-coloured surface mounted waterproofing membrane on the floor (“White Floor Cover”).
16. The plumbing system of Block E was modified due to expansion of Flat GE upon erection of the GE Structures:
| (a) |
Light Well Structure
(i) The soil water manhole[10] located at the Light Well (“Light Well Manhole”)[11] was originally designed to collect waste water from the 2 bathrooms at the rear of each flat unit of Block E, but upon erection of the Light Well Structure the drainpipes of such bathrooms of Flats 2E and 1E were modified to connect to a soil water manhole (“Block A Manhole”) originally designed to only collect waste water from the 2 bathrooms of each flat unit of Block A and waste water from the kitchens of Block E. The Block A Manhole was partly in the Yard and partly in the yard area on the ground floor of Block A. As a result of such modification, the Block A Manhole served waste water drainpipes from the 2 bathrooms of each flat unit of Block A and the 2 bathrooms at the rear of each of Flats 2E/1E, and also waste water drainpipes of the kitchens of Flats 2E/1E.
(ii) Such modification created more pipe bends along the drainpipes, and caused waste water to travel longer distance with increased chance of pipe blockage due to overloading of the Block A Manhole, but any such pipe blockage would not affect Flat GE because (1) the Light Well Manhole within the Light Well Structure (ie the New BRm Area) was altered to exclusively serve Flat GE by collecting waste water from only the GE Master / Loke Jr Bathrooms, and (2) there was no drainage connection between the Block A Manhole and Flat GE’s drainage system. The Light Well Manhole connected directly to the soil water manhole at the open area outside Flat GE near to the Staircase (“Outside Manhole”) (B4/643). |
| (b) |
Yard Structure
(i) Manholes Wu said (and I accept) there used to be a rainwater manhole in the Yard (together with the Block A Manhole that was partly in the Yard), but later both were enclosed by the Yard Structure (B4/643). The rainwater manhole served the rainwater drainpipe from the Roof. As seen in (a) above, the Block A Manhole served the waste water drainpipes from the 2 bathrooms of each flat unit of Block A and the 2 bathrooms at the rear of each of Flats 2E/1E, and the waste water drainpipes of the kitchens of Flats 2E and 1E. These 2 manholes were covered by Yard Structure floor finish without access for inspection, cleaning, maintenance and/or repair, and their condition was unknown since 2000.
(ii) Flat 2E kitchen waste water drainpipes Wu said (and I accept) the waste water drainpipes of the kitchen of Flat 2E exited the external wall of such kitchen to connect to a common vertical drainpipe that ran down the external wall through the Yard Rooftop into the Yard Structure for discharge to the Block A Manhole (“Common Vertical Drainpipe”) and then to the further destination at the Outside Manhole (B4/643).
(iii) Sink drainpipe of Flat 1E’s kitchen (“1E Kitchen”) The 1E Kitchen had a double kitchen sink (“Kitchen Sink”) installed above a kitchen cabinet (“Sink Cabinet”) against the west external wall (“Kitchen Wall”) with a window overlooking the open space above the Yard Structure (“Kitchen Window”). Inside the Sink Cabinet were 2 short drainpipes from the 2 drain holes of the Kitchen Sink that joined into 1 drainpipe that turned downwards to exit the Kitchen Wall to the outside Yard Rooftop (ie pipe “A” in Exhibit P5 which photograph Wu took on 16 September 2013). P’s surveyor expert Ho Yun Kuen John (“Ho”) conjectured that pipe “A” in Exhibit P5 might be the drainpipe connected to the floor drain of the 1E Kitchen (“Kitchen FD”) that also exited the 1E Kitchen via the Kitchen Wall (“Kitchen FD Drainpipe”),[12] but I prefer Wu’s evidence that pipe “A” in Exhibit P5 was the drainpipe connected to the drain holes of the Kitchen Sink (“Sink Drainpipe”).
Ho claimed that after the Sink Drainpipe exited the Kitchen Wall, it ran vertically down through the Yard Rooftop and then inside the Yard Structure to a manhole, but its final destination was masked by wall finish and interior decoration. On balance, I prefer Wu’s view that although the Sink Drainpipe’s original configuration was the same as that for the waste water drainpipes from the kitchen of Flat 2E (ie connected to the Common Vertical Drainpipe for discharge to the Block A Manhole – see (ii) above), the Sink Drainpipe (which Wu said was pipe “A” in Exhibit P5) was modified upon erection of the Yard Structure so that it was no longer connected to the Common Vertical Drainpipe. I find (as Wu said) the Sink Drainpipe discharged waste water elsewhere, and except there would be an external section on the Yard Rooftop after it exited the Kitchen Wall (“External Sink Drainpipe”)), its full route and destination could not be traced now.
(iv) Flat 1E washing machine drainpipe During his site inspections in 2013/2014, Wu found (and I accept) (1) the external section of the waste water drainpipe for the washing machine of Flat 1E on/above the Yard Rooftop (“External Washing Machine Drainpipe”) (which Wu identified as pipe “F” in Exhibit P5 by correlating its position with that of the internal section of the waste water drainpipe of the washing machine inside the 1E Kitchen) was connected to a white-coloured pipe that ran across the Yard Rooftop (“White Pipe”) alongside a row of 3 A/C outdoor units and the Surface Channel / Rooftop Lines referred to in paragraph 195 below, and (2) the White Pipe (together with other pipes/drains) dropped off the open far end of the Yard Rooftop to run vertically down the rear boundary wall between Villa Dorada and No 120 Blue Pool Road at a location marked “X” in Exhibit D1-6 to connect with a horizontal drainpipe that collected waste water from the branch drainpipes of the 1E Master / 1E Helper / 1E Guest Bathrooms for discharge to a manhole (D4/665-666 and 668 and Exhibit D1-6).
But pipe “F” in Exhibit P5 (16 September 2013) did not appear in the bottom photograph in C1/79-80 taken by Loke Sr’s contractor in February 2008 (“Bottom Photo”),[13] so pipe “F” must have been installed between February 2008 and September 2013. Further, the White Pipe appeared to have been installed between 16 September 2013 (see Exhibit P5 without the White Pipe) and 10 July 2014 (see photograph in B7/1229 with the White Pipe alongside the rainwater- filled Surface Channel).
It was unclear how waste water from the waste water drainpipe of the washing machine at Flat 1E was discharged during the period from 2000 (ie when P / Loke Sr acquired Flat GE) until installation of pipe “F” in Exhibit P5 in 2008-2013. I find such drainpipe probably followed the modified configuration of the Sink Drainpipe upon erection of the Yard Structure, ie it was no longer connected to the Common Vertical Drainpipe for discharge to the Block A Manhole, but save that the External Washing Machine Drainpipe was on/above the Yard Rooftop, its then route/destination could not be traced now.
(v) Kitchen KD Drainpipe Wu said (and I accept) after the Kitchen FD Drainpipe exited the Kitchen Wall at floor level (ie pipe “C” in Exhibit P5 as also visualised in the Bottom Photo), it went down a U-trap to connect to the Common Vertical Drainpipe that passed through the Yard Rooftop into the Yard Structure for discharge to the Block A Manhole and then to the Outside Manhole (B4/643).
Wu disagreed with Ho’s reading of the approved drainage plan that the external section of the Kitchen FD Drainpipe on/above the Yard Rooftop (“External Kitchen FD Drainpipe”) after exiting the Kitchen Wall would connect to a horizontal drainpipe that ran along the external walls of Blocks B and A to service the branch waste water drainpipes from the kitchen sinks and floor drains of the flat units in Block A before travelling diagonally back across the open yard in Block A (then covered by the Neighbour Structure) and the Yard (then covered by the Yard Structure) to the Block A Manhole and then to the Outside Manhole. I prefer Wu’s opinion that the waste water flowed the other way, ie the branch waste water drainpipes from Block A and the Kitchen FD Drainpipe would all connect to the Common Vertical Drainpipe marked in D1-7 (that passed through the Yard Rooftop into the Yard Structure) for discharge to the Block A Manhole. This would ensure waste water from the relevant drainpipes would travel the shortest routes to the Block A Manhole. In my view, the original approved drainage layout design would not have required waste water to travel via more pipe bends with increased risk of blockage.
(vi) Summary In summary, although waste water drainpipes from the kitchens of Flats 2E and 1E and other communal drainpipes (eg rainwater drainpipe and Common Vertical Drainpipe) were still in situ upon erection of the Yard Structure, (1) part of the vertical sections of such drainpipes passed through the Yard Rooftop and were accommodated in and covered by the Yard Structure (“Internalised Drainpipes”), (2) some Internalised Drainpipes eventually discharged to the Block A Manhole, and (3) some Internalised Drainpipes were disused when drainpipes were modified to discharge elsewhere. |
| (c) |
The existing manhole in the Courtyard was covered by floor finish of the Courtyard Structure, and a new manhole with connecting drainpipes was erected inside the GE Guest Toilet in the Courtyard Structure (“Courtyard Manhole”).[14] |
Consequently, there were 2 accessible manholes in Flat GE, the existing Light Well Manhole in (a) above and the newly installed Courtyard Manhole in (c) above.
17. Upon such modifications, there was structural damage to Flat GE as follows:
| (a) |
original reinforced concrete external walls with windows were demolished; |
| (b) |
2 door openings were made at the original east and south external walls of the Light Well for access to the GE Master Bedroom and the New BRm Area (ie the Light Well Structure); |
| (c) |
holes of various sizes were created through structural beams/columns and concrete covers were removed to expose reinforcing bars for accommodation of electrical and mechanical facilities;[15] |
| (d) |
floor slab structures were dug up for accommodation of the new Courtyard Manhole with drainpipes. |
There was also damage to the Rooftops: (i) refrigerant pipes, condensation pipes and electrical cables/conduits of the ACV System on the Rooftops passed through the building envelop/fabric into Flat GE (and would, especially upon deterioration/disrepair, become vessels for carrying water from outside to Flat GE), and (ii) holes/openings were made on the Yard Rooftop (and any waterproofing feature thereon) to allow the Internalised Drainpipes to pass through into the Yard Structure.
III. FLAT 1E
18. Copy original layout plan of Flat 1E and copy modified layout plan of Flat 1E at the relevant times are annexed to this judgment as schedule 3 (“Schedule 3”)[16] schedule 4 (“Schedule 4”).[17] The layout of Flat 1E had been modified:
| (a) |
The original servant’s room was combined with the original verandah that was enclosed to become a utility room (“1E Laundry Room”), which was next to the 1E Kitchen. |
| (b) |
The original larger bedroom at the rear of Flat 1E was reduced in size to form a corridor between the living area and the bathroom that was sandwiched between the original smaller bedroom at the rear of Flat 1E and the open space above the Light Well (“1E Guest Bathroom”). The original larger bedroom so modified had door opening to such corridor. |
| (c) |
A master bedroom was carved out of the living area by partition walls with access via door opening to the corridor in (b) above (“1E Master Bedroom”). |
| (d) |
An extension was erected to the south of Flat 1E over a slope (ie Flat GE was not under such extension, “1E Enclosed Area”) by (i) demolishing part of the original south external wall to extend the living area into part of the 1E Enclosed Area, (ii) modifying part of the original south external wall to become a partition wall of the new 1E Master Bedroom (see (c) above) with door opening to part of the 1E Enclosed Area that was partitioned as a new ensuite bathroom (“1E Master Bathroom”), and (iii) erecting new external walls to enclose the rest of the 1E Enclosed Area to form the helper’s room accessible via doorway opening with passage from the extended living area (“1E Helper Room”). |
| (e) |
The bathroom to the south of the open space above the Light Well originally accessible by doorway opening from the original living area was modified to become the helper’s actual bathroom (“1E Helper Bathroom”) by (i) closing the original doorway opening that otherwise would have led to the new 1E Master Bedroom, and (ii) modifying the original external wall of such bathroom with provision for door opening to the new 1E Helper Room. |
19. After such modifications, there were 4 bathrooms/toilets at Flat 1E: the 1E Guest Bathroom, 1E Master Bathroom, 1E Helper Bathroom, and original helper’s toilet with doorway opening to the 1E Laundry Room (“1E Helper Toilet”). But the helper actually used the 1E Helper Bathroom rather than 1E Helper Toilet. The areas on the 1/F, 2/F and Roof above the Yard, Light Well and Courtyard were all open spaces. The original flower box outside the window of the original living area of Flat 1E facing the open space above the Courtyard shown in Schedule 3 (“Flower Box”) was demolished.
20. D1 did not carry out renovations when she moved into, lived at and left Flat 1E. When Ds lived at Flat 1E with their families, there was a bathtub (not shower cubicle) in each of the 1E Guest / 1E Master Bathrooms, but there was a shower cubicle in the 1E Helper Bathroom. In the Third Party Proceedings, D1 pleaded that D2/TP1 installed a new shower tray in the 1E Master Bathroom in January/February 2007, but I find in paragraph 143 below that the bathtub in each of the 1E Guest / 1E Master Bathrooms were changed to shower cubicles upon request by the new tenant after determination of the Tenancies in 2011.
IV. ROOF
21. The Carpark had direct access to the main road and also access to Flats 2E, 1E and GE via a common staircase (“Staircase”), the bottom of which was the main lobby/entrance.
V. MAIN PROCEEDINGS
22. P claimed that from November 2006 to March 2012 (except for a one-off water leakage incident in June 2011 (“06/11 Incident”)):
| (a) |
parts of Flat GE affected by water leakages from Flat 1E included the GE Master Bathroom that was partly in the Light Well Structure (“Bathroom Area”), the Yard Structure at the GE Living/Dining Areas (see footnote 8 above, “Cabinet Area”), and GE Laundry Room (“Laundry Area”) (collectively, “3 Areas”); |
| (b) |
unaffected parts of Flat GE were the GE Master / Loke Jr Bedrooms, Loke Jr Bathroom, rest of the GE Living/Dining Areas, GE Kitchen, GE Guest Toilet, GE Study Room and GE Helper Toilet.[18] |
23. Flat GE was plainly water damaged. P claimed (but Ds denied) that from November 2006 to March 2012 (except for the 06/11 Incident), there were on-and-off water leakages caused by defective drainage systems of the 1E Helper Bathroom, 1E Kitchen and 1E Laundry Room above the 3 Areas.[19] P claimed such water leakages constituted nuisance that Ds knew or ought to have known but permitted to continue[20] or failed to abate, and/or were caused by Ds’ negligence.[21] P also complained D1 failed to carry out remedial works for water damage caused to Flat 1E.
24. Ds claimed such water leakages and/or resultant damage (which Ds did not admit) were wholly/partly caused or contributed to by P’s negligence as follows, and D2 added he had taken all reasonable steps to assist P to rectify the alleged water leakage problem:
| (a) |
in erecting the Yard / Light Well Structures to become inter alia the Cabinet/Bathroom Areas when P knew or ought to have known they were unauthorised building works (“UBWs”) caused by unauthorised alterations (especially openings) to the original external walls and demolition/reinstatement of part of such walls, thereby rendering them susceptible to water leakages and/or infiltration of rainwater/ dampness; |
| (b) |
in causing, permitting or suffering UBWs to encroach upon and enclose the G/F Open Spaces to become the Yard / Light Well Structures with glass skylights, thereby rendering such parts susceptible to water leakages and/or infiltration of rainwater/ dampness; |
| (c) |
in instructing for, permitting and/or suffering defective waterproofing works (or in failing to instruct for or cause proper waterproofing works), say, at the seams where the Yard / Light Well Structures met the parent structure and at metal frames of the glass skylights, thereby rendering them and the vicinity thereof vulnerable to water leakages and/or infiltration of rainwater/dampness; |
(d)
|
in failing to properly inspect the Yard / Light Well Structures for water leakage problem when water leakages and/or infiltration of rainwater/dampness occurred in the vicinity on multiple occasions; |
| (e) |
in erecting the Yard / Light Well Structures, and in causing, permitting or suffering the pipework/drainage system of Flat GE to be modified so that pipes/drains connected to Flat 1E were exposed to risk of leakage or bursting; |
(f)
|
in causing, permitting or suffering the G/F Open Spaces, including 2 manholes thereat, to be enclosed resulting in foul and moist air, water and dampness penetrating into Flat GE; |
| (g) |
in causing, permitting or suffering dampness rising from the ground and failing to maintain or to take proper care or at all of Flat GE resulting in dampness and mould growth in Flat GE; |
(h)
|
in failing to maintain and provide adequate ventilation to Flat GE resulting in condensation and dampness to replenish and persist; |
| (i) |
in causing, permitting or suffering alteration to the Building’s plumbing and pipework system thus causing a blockage in a manhole, thereby resulting in foul/waste water escaping from Flat 1E to Flat GE and feeding mould growth in Flat GE. |
25. D1 further averred the alleged water leakages between February/March 2007 and June 2011 were caused by TPs’ negligence as follows, so (if D1 were found liable to P) she would seek indemnity against D2/TP1 and/or TP2 for any loss thereby incurred:
| (a) |
in instructing for, permitting and/or suffering defective renovations at Flat 1E that (i) caused a drainpipe in the 1E Helper Bathroom to become defective which led to water leakage at the GE Master Bathroom in February/March 2007, and (ii) used sub-standard pipework in the 1E Guest Bathroom which led to the 06/11 Incident; |
| (b) |
in causing, permitting or suffering escape of water from a flush water pipe in the 1E Guest Bathroom in/about June 2011, and in failing to maintain and take proper care or at all of such pipe resulting in escape of water (ie the 06/11 Incident). |
26. D1 also contended the water leakage from a drainpipe on the external wall in late 2010 was caused by Yuen Hing Enginering Co (contractor engaged by the Manager to carry out renovation works for the Building, “Yuen Hing”), which contributed to the loss/damage at Flat GE. D1 also averred that if water leakages at Flat GE came from Flat 1E, she had taken reasonable steps to abate the nuisance by carrying out remedial works. D1 also disputed P’s claim as to quantum of damages.
27. D2 denied liability, especially for water leakages at Flat GE before he took possession of and after he vacated Flat 1E. D2 claimed he helpfully relayed P’s complaints and the Food and Environmental Hygiene Department’s (“FEHD’s”) findings to D1 for her to carry out repairs. For the 06/11 Incident, D2 claimed the renovation (including water-related) works for the Building “increased water pressure of the main pipe, causing the toilet pipe [at Flat 1E] to burst”. D2 also disputed P’s claim as to quantum of damages.
28. At first, Mr Brown, counsel for D2/TP1, wanted to argue the GE Structures (undisputedly UBWs) were ex facie illegal,[22] which argument he submitted went to the issue of damages. But when Mr Fong, counsel for P, conceded (“Concession”) P would not claim damages for (a) repairs to the structure, envelop and/or fabric of the GE Structures, (b) loss of enjoyment/use of the GE Structures and/or (c) discomfort, inconvenience and disturbance P suffered due to the condition of the GE Structures (“Conceded Loss”), Mr Fong, Mr Brown and Ms Wong, counsel for D1, all agreed there was no further need to deal with the ex facie illegality argument. The Concession was significant because water leakages and water damage at the Cabinet/Bathroom Areas did occur at the Yard / Light Well Structures, and raised nice issues as to causation[23] and/or quantum.[24] But more of this below.
VI. CONTRIBUTION PROCEEDINGS
29. D2 claimed that if (which was denied) P were entitled to any claim against him, he would seek contribution/indemnity against D1 for any loss thereby incurred, but would deny liability to contribute/indemnify for D1’s loss/damage resulting from any liability for P’s claim.[25] D1 also made vice versa claim and denial vis-à-vis D2. In denying D2’s contribution claim, D1 averred as follows:[26]
| (a) |
D2 relayed to Li P’s email complaints between March and May 2008; |
| (b) |
if water leakages at the GE Master Bathroom were caused by a defective pipe in the 1E Helper Bathroom, D1/Li voluntarily did “piping replacements and remedial works” that revealed such defective pipe was caused by renovations done by D2 and/or TP2 in January/February 2007; |
| (c) |
D1/Li fully addressed any water leakages from Flat 1E and fully remedied all resultant damage to Flat GE. |
D1’s contribution claim and D2’s defence thereto overlapped with D1’s claim against TP1 and TP1’s defence in the Third Party Proceedings discussed in Part VII below.
VII. THIRD PARTY PROCEEDINGS
30. In the Third Party Proceedings, D1 claimed (but TPs denied) that in/about January 2007 she agreed to grant to D2/TP1 (i) a tenancy of Flat 1E at a monthly rent of $35,000 and (ii) a licence of Flat 1E for D2’s/TP1’s rent-free use and occupation in January/February 2007 to carry out improvements works, including altering/rebuilding the plumbing, drainage system and pipes, that would cost about $300,000 (“Collateral Agreement”):
| (a) |
it was an implied term that D2/TP1 would (i) exercise reasonable and due diligence, care and skill in the installation, construction, repair and maintenance of such improvement works, and (ii) be liable to make good, repair and rectify any defects of such improvement works; |
| (b) |
further or alternatively, (i) D2/TP1, his servants or his agents were liable to keep and maintain such improvement works done by him, and (ii) D2/TP1 owed a duty to occupiers of adjoining premises (including P) to exercise reasonable care and skill in the installation, construction, repair and maintenance of such improvement works. |
31. It was common ground that:
| (a) |
on/about 12 February 2007, D2/TP1 for TP2 as tenant entered into a written tenancy agreement of Flat 1E with D1 as landlord (“1st TA”) for a term of 2 years from 1 March 2007 to 29 February 2009 at a monthly rent of $35,000 (“1st Tenancy”); |
| (b) |
the 1st Tenancy was renewed by another written tenancy agreement executed by D1 as landlord and D2/TP1 for TP2 as tenant on/about 1 April 2009 (“2nd TA”) for a term ending 31 March 2011 (“2nd Tenancy”); |
| (c) |
thereafter there were periodic tenancies between D1 as landlord and TP2 as tenant on monthly basis from April 2011 up to the end of June 2011. |
The successive tenancies between D1 as landlord and TP2 as tenant are collectively referred to in this judgment as “Tenancies”. D2/TP1 and his family left Flat 1E at end of June 2011 or early July 2011.
32. D1 claimed (but TPs denied) that in January/February 2007 D2/TP1 caused Flat 1E’s plumbing, drainage system and pipes to be altered/rebuilt with a new shower tray in the 1E Master Bathroom pursuant to the Collateral Agreement (“Improvement Works”).[27] TPs disagreed and claimed there was an informal understanding with D1 that D2/TP1 would be given early possession of Flat 1E to carry out certain renovation works,[28]which were significantly more limited than alleged, and which did not cause or contribute to the alleged water leakages and/or resultant damage.
33. D1 next claimed the following were express/implied terms of the Tenancies:
| (a) |
TP2 should observe/perform the covenants, terms and conditions of inter alia the Deed of Mutual Covenant (“DMC”) relating to Flat 1E (clause 10 of the 1st TA and clause 4 of the 2nd TA); |
| (b) |
during the terms of the Tenancies, TP2 shall keep the interior of Flat 1E in good and tenantable repair/condition, except fair wear and tear and damage caused by inherent defects (clause 12 of the 1st TA and clause 6 of the 2nd TA); |
| (c) |
D1 shall keep and maintain the main drains, pipes and cables in proper state of repair provided D1’s liability shall not be incurred unless and until written notice of any defect or want of repair (“Notice of Disrepair”) had been given by TP2 to D1, and D1 shall have failed to take reasonable steps to repair/remedy the same after lapse of a reasonable time from date of service of such notice (“Clause 14 Proviso”) (clause 14 of the 1st TA and clause 9 of the 2nd TA); |
| (d) |
it was an implied term of the Tenancies that D1 was not liable to keep and maintain the Improvement Works during the tenancy terms. |
D1 further claimed that by virtue of (a) above the following terms/ covenants of the DMC were incorporated into the Tenancies:
| (i) |
TP2 should keep the interior of Flat 1E in good repair and condition and to maintain the same in a manner calculated to maintain/ enhance the standard of the Building (clause 3 of the 2nd schedule); |
| (ii) |
TP2 should not make any structural alteration to Flat 1E nor cut, maim, injure, damage, alter or interfere with any part or parts of the Building or any of the sewers, drains, watercourses, conduits, pipes, cables, wiring, fixtures, equipment, apparatus or services of Flat 1E and the Building (clause 4 of the 2nd schedule); |
| (iii) |
TP2 should not use or permit or suffer Flat 1E to be or become a nuisance or annoyance to or cause damage to other owners/ occupiers of the Building (clause 6 of the 2nd schedule). |
34. D1 claimed (but TPs denied) that if she were found liable to P for water leakages from January 2007 to June 2011 as P alleged, they were caused by D2’s/TP1’s breach of the Collateral Agreement:
| (a) |
the Improvement Works at Flat 1E by TP1 (particularly the water supply/drainage pipes thereby installed) were defective and/or of poor workmanship, resulting in leakages in and/or bursting of such pipes; |
| (b) |
allowing the Improvement Works to alter and/or interfere with the plumbing and drainage system of Flat 1E, thereby increasing risk of bursting of and/or leakages from the pipes of Flat 1E; |
| (c) |
allowing the Improvement Works or any part thereof to fall into defective condition or disrepair; |
| (d) |
continuing and/or failing to abate nuisance by failing to promptly and properly rectify/repair such defective Improvement Works resulting in persistent water leakages from Flat 1E since about March 2007. |
35. Further or alternatively, D1 claimed (but TPs denied) that if D1 were found liable to P for water leakages from January 2007 to June 2011 as P alleged, such water leakages were caused by breach of the Tenancies and the 1st and 2nd TAs (collectively, “TAs”) by TP2 and/or negligence by TPs and/or their servants, agents or licensees:[29]
| (a) |
failing to keep and maintain Flat 1E (particularly the water supply and drainage pipes thereat) in good and tenantable repair and condition resulting in nuisance between January 2007 and June 2011 as P alleged; |
| (b) |
failing to inspect Flat 1E (particularly the water supply and drainage pipes thereat) regularly or at all; |
| (c) |
failing to maintain and take proper care or at all the water supply and drainage pipes of Flat 1E resulting in persistent escape of water therefrom since January 2007; |
| (d) |
failing to carry out prompt or proper repair and maintenance to Flat 1E (particularly the water supply/drainage pipes thereat) as required to be done by TP2 pursuant to the Tenancies; |
| (e) |
causing, permitting or suffering escape of water from the pipes/ drains of Flat 1E; |
| (f) |
further or alternatively, failing to give D1 written Notice of Disrepair for Flat 1E (particularly as to pipes/drains) promptly or at all; |
| (g) |
creating and/or continuing nuisance as P alleged which amounted to breach of the DMC and/or nuisance. |
36. D1 claimed (but TPs denied) that by reason of the above matters any loss/damage to P and Flat GE that might be proved at trial was caused by TPs and/or their servants, agents or licensees, and if D1 were found liable to P, TPs would have to indemnify D1 against (or contribute towards) damages/costs that might be awarded to P and D1’s costs of defending the Main Proceedings, or to pay D1 damages commensurate with such sum.
37. But TPs claimed the TAs were the only operative contracts that superseded all prior “negotiation, representation, understanding and agreement” between the parties, so D1 was the one liable/responsible for the pipes/drains at Flat 1E. TPs claimed they had taken all reasonable steps to ensure Flat 1E was kept in good and tenantable repair under the TAs. TPs also denied the alleged water leakages at Flat GE were wholly/partly caused by their acts or omissions. They adopted D2’s Amended Defence in the Main Proceedings on steps taken to investigate the alleged water leakages, remedial works done during the Tenancies, and assistance afforded to P/D1 in relation to concerns over the alleged water leakages. D2/TP1 also claimed he was not privy to the TAs and therefore not liable to indemnify D1.
VIII. FACTUAL WITNESSES
38. P herself gave evidence and called Loke Jr as her factual witness. D1 gave evidence and called Li as her factual witness. D2/TP1 gave evidence for himself and on behalf of TP2. Significant aspects of this case fell to be decided on the facts, so questions of credibility/reliability loomed large. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the pleadings, chronology of events, documentary evidence and inferences based on inherent probabilities and/or undisputed facts.[30]
39. P was plainly aggrieved by the water damage to Flat GE. She was a forceful character who convinced herself the water source was from Flat 1E, and wrote letters / made complaints from such standpoint. Her evidence was coloured by a permeating conviction that the water issue was caused by the owner/occupiers of Flat 1E, and as time went by she gave in to exaggeration and embellishment to air her grievance and to press for compensation. Although there were certain aspects of P’s evidence that might have some basis in truth, there was a degree of reconstruction in her testimony by which she deluded herself into belief in her own version of events, and she had chosen to embroider her evidence to emphasise/bolster her case. For example, P insisted that a meeting took place at Flat GE with D1, D2/TP1, D2’s/TP1’s contractor and Linda in January 2007 when she allegedly made known her water leakage complaints to Ds, but I find such evidence to be a poor/unreliable attempt to lay early blame at Ds’ door, and such meeting never took place. I also do not believe P forgot or was mistaken about her presence at Flat GE on 25 June 2014 (ie the 2nd day of the Experts’ joint inspection in June 2014) given the events and her role that day, and I find her denial (until confronted by photographs that proved her presence) was made with a view to sidestep her deliberate efforts to stall/prevent Wu from useful inspection of Flat GE. In my view, P’s partiality inevitably detracted from her objectivity/reliability as a whole, but where the probabilities favoured there being some element of truth underlying her exaggeration and/or reconstruction, I make findings accordingly.
40. Loke Jr gave evidence in a more straightforward manner, but apart from his personal experience of the 06/11 Incident and the sewage blockage incident in 2013, and his occasional visits to Flat GE after P left in early 2012, much of his evidence was hearsay information acquired from others, which evidence had to be assessed in light of the overall factual matrix. So on an overall basis Loke Jr’s evidence did not shed too much light on the source of water leakages at the 3 Areas.
41. On balance, I find D1’s evidence as to the Tenancies and TAs unreliable/improbable. In light of the overall factual matrix, there was reason to be careful with her assertions on this matter, which I find to be disguised efforts to shift blame to TPs. As for her evidence on how she dealt with the water leakage complaints, I accept (as gathered from the overall factual matrix) she did arrange for some works to be done at Flat 1E, but her evidence on this was vague/unfocused at times, and I have approached such evidence with caution and have made findings accordingly. In doing so, I have taken into account Mr Fong’s reminder that D1 did not ask Wong or her contractor Mr Poon (“Poon”) to be her factual witnesses even though Wong still worked at Villa Dorada at the time of trial and Poon accompanied Wu to inspect Flat 1E. But that said, it still remained necessary for this court to weigh and assess the available evidence.
42. Although Li gave some candid responses, much of his evidence essentially sought to argue D1’s case, and his testimony was also vague over certain events and dates. The water spray test in 2008 was one of the key features of his evidence, but as seen below I find such evidence unreliable.
43. D2/TP1 was a more reliable witness. He was not evasive, but he was not a “details man”. He struck me as an uncomfortable neighbor caught between P as complainant and D1 as landlord, who on the one hand wished to be sympathetic and helpful to P, but who on the other hand did not wish to be caught in the crosshairs in the shootout between P and D1. This was amply demonstrated by his proposing to carry out repairs to Flat 1E pipes/drains and deducting cost thereof from rent payable to D1 because he wished to be helpful to P, but at the time same time not really wanting to implement such suggestion because he believed such repairs were D1’s responsibility. I have borne this in mind in assessing D2’s/TP1’s evidence.
IX. EXPERT WITNESSES AND THEIR REPORTS
44. P’s and D1’s respective surveyor experts were Ho and Wu (collectively, “Experts”). Ho’s assistants were Sky Siu (“Sky”) and Keith Kan (“Keith”), and Wu’s assistant was Ho Wai Hang. Below is a brief summary of the Experts’ inspections/reports, but I will return to discuss their instructions/inspections in more detail in Part XXIV below, which in my view did not shed a good light on P and Ho, and adversely affected the reliability of their evidence on relevant matters.
45. Ho prepared a solo report dated 19 August 2014 (“Ho Report”) pursuant to inspections on 28 August 2013 and 13 January, 24-25 June and 10, 16-18 and 21 July 2014. Wu prepared a solo report dated 30 March 2014 pursuant to inspections on 16 September and 24 October 2013 and 13 January and 7 February 2014 (“Wu 1st Report”), and a further solo report dated 29 August 2014 pursuant to inspections on 24-26 June and 10, 16-18 and 21 July 2014 (“Wu 2nd Report”). Ho and Wu prepared a joint report dated 29 September 2014 (“Joint Report”) pursuant to joint meetings on 11, 17 and 19-24 September 2014.
46. According to the Ho Report, Ho, Sky and T Y Fung of Infrascan (Asia) Limited (“Infrascan”) inspected Flat GE on 28 August 2013. According to the Wu 1st Report, Wu inspected Flat 1E and the external condition of Block E on 16 September 2013 and inspected Flat 1E on 24 October 2013.
47. According to the Ho and Wu 1st Reports, there was joint inspection of Flat GE by Ho/Sky and Wu on 13 January 2014. The Wu 1st / Joint Reports recorded a joint inspection of Flat GE and its external condition on 7 February 2014. There was joint inspection of Flat GE on 24-25 June 2014. Although the Ho Report recorded Ho attended inspection on both days, Ho conceded it was Sky who was present on 24 June 2014 whilst he was absent due to illness. Wu complained of being excluded from Flat GE at some stage on both days, but more of this later. Wu again inspected Flat GE on 26 June 2014. There were joint inspections of Flat 1E on 10 July 2014 (by Ho/Sky and Wu) and of Flat GE on 16-18 and 21 July 2014 (by Ho/Sky and Wu).
48. The Experts were largely agreed on most relevant matters. It goes without saying that the court expects experts to discharge their overriding duty to the court with integrity through impartial, independent and thorough research, investigation and opinion,[31] and failure to strictly adhere to such standards is something the court may take into account in assessing the probative value of their evidence.[32] Having seen the Experts, I am unimpressed by Ho whose professionalism/impartiality left something to be desired. Ho’s obvious errors (eg whether he was present at the inspection on 24 June 2014), his reliance on subordinates, his tests done outside agreed protocols, his cavalier attitude to inspection and record- keeping, his failure to propose relevant tests/examinations, and his often unstudied opinion without solid analysis/finding all weighed against his reliability, and such lapses could not be brushed aside as mere inadvertence. I find Wu’s investigation and opinion generally reliable, and to the extent the Experts disagreed, I prefer Wu’s opinion evidence unless otherwise stated. Even where I disagree with Wu, I have no doubt it was his independent professional opinion bona fide put forward with a view to assist the court. In my view, Wu generally did his best to assist.
X. LEGAL PRINCIPLES
49. Nuisance: use of land “Nuisance is an act or omission which is an interference with, disturbance of or an annoyance to, a person in the exercise or enjoyment of …… his ownership or occupation of land ……”[33] Private nuisance may be and usually is caused by a person doing on his own land something which he is lawfully entitled to do, but his conduct becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbour by, say, (a) causing physical damage to his neighbour’s land/building and works upon it, or (b) unduly interfering with his neighbour’s comfortable/convenient enjoyment of his land.[34] Thus, the essence of a private nuisance is unreasonable user by a man of his land to the detriment of his neighbor.
50. The modern tendency is to move away from strict liability and “more and more to assimilate nuisance and negligence”.[35] There is no absolute standard as to what amounts to reasonable user, and what degree of interference, disturbance or annoyance amounts to a nuisance. But even reasonable user of land may involve some foreseeable harm which the court considers to be not excessive as between neighbours and which has to be tolerated under a principle of “give and take, or let and let live”. Thus, the reasonableness of user in nuisance is not solely determinable by reference to the character of the defendant’s conduct,[36] and a useful guide is what is reasonable according to ordinary usages of mankind living in a particular society by reference to all the circumstances of the particular case.[37]
51. For nuisance in paragraph 49(b) above, it must be a real interference with the comfort/convenience of living according to standards of the average man, and the discomfort must be substantial to any person occupying the claimant’s premises.[38] But such requirement is satisfied where there is actual physical damage to property,[39] and this is routinely if tacitly applied in water leakage cases.[40] Further, even a one-off nuisance incident can amount to nuisance in an appropriate case.[41] Ms Wong and Mr Brown did not dispute escape of water onto a neighbour’s land can amount to a nuisance, but they focused attention on issues as to water source and causation.
52. Nuisance: duty and proof There is no presumption that the source of water leakage necessarily comes from the flat above the affected property. Rather, the burden is on the claimant to prove on the balance of probabilities the source is from the defendant’s flat above. It is not for the defendant to find out the real source of the water leakage or to prove it did not come from his property.[42] Where there are prima facie various possible sources of water which may have caused the water leakages suffered by the claimant, the doctrine of res ipsa loquitur cannot apply, and the key question is whether the claimant has succeeded in discharging his/her burden of proof.[43] The claimant will not be able to do so if the source of water leakage cannot be determined[44] or there are other likely water sources.[45]
53. If the nuisance is created by the defendant, his liability depends on the nature of his conduct:[46]
| (a) |
if he deliberately/recklessly uses his land in a way which he knows will cause harm to his neighbour, and such harm is considered by a judge to be unreasonable infringement of his neighbour’s interest in the neighbour’s property, he is liable for foreseeable consequences of his unreasonable user of his property; |
| (b) |
if he knew or ought to have known that in consequence of his conduct harm to his neighbour is reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable. |
54. But where liability is sought against a defendant for continuing a nuisance, proof of negligence at least is essential.[47] It has been said that such defendant is not liable for nuisance if he does not know the source of nuisance originates from his property or a dangerous state of affairs exists on his land.[48] Mr Brown suggested this means the claimant has to establish the particular water source/route is from the flat above the affected property (ie which drainpipe in such flat was defective that leaked waste water by which particular route to the affected property below to emerge as water leakage) in order to satisfy the requisite “knowledge”. But in my view, the authorities do not lend support to such stringent/onerous threshold.
55. In Sedleigh-Denfield v O'Callagan & ors,[49] the House of Lords held that an occupier of land “continues” a nuisance if, with knowledge or presumed knowledge of its existence (eg a defective grating giving rise to flood damage in that case), he fails to take reasonable means to bring it to an end when he has reasonable time to do so. Megaw LJ in Leakey & ors v National Trust for Places of Historic Interest or Natural Beauty[50] referred to Lord Wright’s speech at pages 904-905 in Sedleigh- Denfield as follows:
“…… The liability for a nuisance is not, at least in modern law, a strict or absolute liability. …… But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it. This rule seems to be in accordance with good common sense and convenience.”
56. Megaw LJ at page 518 in Leakey & ors went on to say he was confident Lord Wright’s reference to “latent defect” intended to include a defect in the land itself, and so long as the defect remains “latent” there is no duty on the occupier, but once the latent becomes patent a duty will arise. But inaction does not necessarily constitute breach of duty because as Mr Brown reminded (and Stuart-Smith LJ explained in Holbeck Hall Hotel Ltd & anor v Scarborough Borough Council), the owner/occupier is not to be held liable for latent defects simply because, if he had made further investigation, he would have discovered the defect:[51]
“42. …… It is the existence of the defect coupled with the danger that constitutes the nuisance; it is knowledge or presumed knowledge of the nuisance that involves liability for continuing it when it could reasonably be abated. Mr Saw submits that the defect must be patent and not latent; that is to say a defect which can be observed; it is no answer for the landowner to say that he did not observe it, if a responsible servant did so; or if as a reasonable landowner he, or the person to whom he entrusted the responsibility of looking after the land, should have seen it. But, if the defect is latent, the landowner or occupier is not to be held liable simply because, if he had made further investigation, he would have discovered it. I accept Mr Stow’s submission; in my judgment that is what is meant by the expression “knowledge or presumed knowledge.”” (my emphasis)
57. The leading local authority is 張秀玲及吳炳漢對鄭禮莊 in which Liu JA explained the requisite actual and/or presumed knowledge as follows:[52]
“26. 漏水可能導致「滋擾」，而法律就這項目有很明確的規範。簡單地說，有以下幾種普遍情況：
(1) 若漏水是在一處地方 (包括樓宇單位) 中發生，招致鄰舍 (包括另一單位) 損失時，而事源地方的戶主 (是使用該地方的人，不一定需要是業主) 明知漏水根源，他便是有意圖滋擾而須負法律責任。法律責任包括賠償及受禁制令禁制。
(2) 若漏水不是事源地方戶主自己或自己應代為負責的人所招致，而他又不知道漏水已發生，他就不須對漏水所招致鄰舍的損失負責。
(3) 若漏水不是事源地方戶主自己或自己應代為負責的人所招致，當他知道漏水源於他單位內，他須在無合理延誤下作出補救。否則，他須為該項漏水所招致鄰舍的損失負上法律責任。
(4) 以上三項中的「知道」，是指兩種情況：(a) 是實質地知道，或 (b) 是在通常及合理謹慎下應可知道。故此，就算戶主實質上不知道漏水的存在，因為他不在事源地方，他也不能藉此推卸責任。他身為戶主，對自己使用的地方要負法律責任。若在通常的情況下戶主應可知道有關使用地方的情況，在法律上他就被當作知情。作為地方的戶主，他應對該地方作出合理謹慎的處理。故此，對該地方的情況而言，一切他應在合理謹慎下可知道的，法律也當他知道。
(5) 第 (2) 和第 (3) 項所述的「戶主應代為負責的人」，是指一切戶主准許進入或使用戶主地方的人，包括他的家人、朋友、僱員和入內工作的人，但不包括未獲他或上述的人准許而進入地方的人。” (my emphasis)
58. Next, the defendant should not be held liable for damage of a type which he cannot reasonably foresee. In The Wagon Mound (No 2),[53] Lord Reid said fault of some kind is almost always necessary for nuisance and fault generally involves foreseeability, so it was not enough that the injury suffered was the direct result of nuisance if the injury was unforeseeable.[54] The Privy Council also said at page 644 that under the rubrics of both nuisance and negligence, “[if] it is clear that the reasonable man would have realised or foreseen and prevented the risk, then it must follow that the appellant is liable in damages”. Also in Cambridge Water Co Ltd v Eastern Counties Leather Plc,[55] Lord Goff supported the view that liability in nuisance requires foreseeability.[56]
59. On duty to abate nuisance, the Privy Council in Goldman v Hargrave & ors,[57] when dealing with an occupier’s duty to take reasonable steps to prevent the spreading of a fire caused by lightning striking a tree, said at page 663 (and not really discriminating between nuisance and negligence at pages 656-657) as follows:
“So far it has been possible to consider the existence of a duty, in general terms. But the matter cannot be left there without some definition of the scope of his duty. …… One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it. …… the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances ……”
In Leakey & ors, Megaw LJ said at p 526 as follows:
“So here. The defendant’s duty is to do that which is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man – not the average man – can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger to his means. Just as, where physical effort is required to avert an immediate danger, the defendant’s age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant’s capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.” [58]
Thus, the defendant’s duty is a “measured” duty, which is determined by what is fair, just and reasonable as between two neighbours, having regard to all the circumstances, including the extent of the foreseeable risk, the available preventive measures, the cost of such measures and the resources of both parties.[59] In my view, the above observations in Goldman and Leakey & ors are directed to what a reasonable person in the shoes of the defendant would have done, so the label of nuisance or negligence has no real significance. The common law is concerned in working out the fair and just content/incidence of a neighbour’s duty rather than affixing a label and inferring the extent of the duty from it.
60. Nuisance: causation of loss It is a question of fact whether any particular kind of damage has been caused by the defendant’s nuisance. The burden is on the claimant to establish the wrongful conduct of the defendant results in the damage he claims. The claimant must lead evidence tending to establish the facts necessary to demonstrate causation of loss. Ultimately, it is a question of whether the evidence allows a reasonable finding of causation.
61. This involves (a) factual causation, ie the breach of duty is the factual cause of the damage, of which the general test is the “but for” test which asks whether the loss or damage would have occurred but for the defendant’s breach of duty,[60] and (b) legal causation, ie whether there is any novus actus interviens that may break the chain of causation between the defendant’s breach of duty and the claimant’s loss or damage, and if the intervening event constitutes an event of such impact that it obliterates the defendant’s wrongdoing[61] sufficient to break the chain, then the defendant may not be liable despite being in breach of duty.[62]
62. In respect of (a) above, the court is not concerned to identify all possible causes, but with the effective cause of the resulting damage so as to assign responsibility for such damage. The “but for” test functions as an exclusionary test (ie to exclude irrelevant causes), but it is not conclusive as to whether the defendant should be held responsible in law. In respect of (b) above, the causal inquiry in law is to search for the causa causans (effective cause) rather than the causa sine qua non (factor(s) without which damage could not have occurred), ie to find which cause(s) have significance for attaching legal responsibility.
63. Mr Brown drew my attention to Spencer v Wincanton Holdings Ltd[63] in which Aikens LJ explained at pages P175-P176 that the rationale for the principle that a novus actus interviniens breaks “the chain of causation” is “fairness” since it would not be fair to hold a tortfeasor liable, however gross his breach of duty, for damages caused to be the claimant not by the tortfeasor’s breach of duty but by some independent supervening cause (which may or may not be tortious) for which the tortfeasor was not responsible. But the courts have been unwilling to be prescriptive (at page P177):
“The line between a set of facts which results in a finding of contributory negligence and a set of facts which results in a finding that the “unreasonable conduct” of the claimant constitutes a novus actus interveniens is not, in my view, capable of precise definition. …… But, in my view, each case will depend on the facts and …… the court will have to apply a value judgment to the facts as found.”
As Lord Asquith said in Stapley v Gypsum Mines Ltd,[64] the question of the real and effective cause must be determined by taking a “broad common- sense view”.
64. In Ho Ka Yin v Express Security Ltd,[65] McWalters J (as he then was) stated that the test used to identify the factual cause of an accident is the “but for” test, but there can be a number of causes of an accident/injury. Whilst the plaintiff does not have to establish that the sequelae of the 1st accident is the one and only cause of the 2nd accident, he has to show that it is a cause in the sense of materially contributing to it. In that case, although the sequelae of the 1st accident contributed to making the plaintiff less stable within the wheelchair and more prone to losing her balance and as a consequence made her more vulnerable to wheelchair accidents, it only created the risk that her body might fall out of the wheelchair, but it was the failure of the seatbelt to restrain her that transformed that risk into reality. Thus, the failure of the seatbelt constituted a novus actus interveniens, ie the only cause of the 2nd accident that broke the chain of causation.
65. Further, where one event is tortious and the other is non- tortious, causal responsibility will be attributed to the non-tortious event, no matter in what order the events occur. “If the first event is non-tortious, the tortfeasor is responsible only for the additional damage, and if the second event is non-tortious and would have caused the same loss as to tort, then applying Carslogie SS Co Ltd v Royal Norwegian Government[66] and Jobling v Associated Diaries the non-tortious event is treated as supervening the damage caused by the tort”.[67] In Carslogie SS Co Ltd, the claimant’s ship was damaged by collision with the defendant’s, and had temporary repairs carried out on the vessel. It was then certified for sale for New York, but on the way it suffered bad damage from stormy weather at sea. At New York both sets of repairs were effected concurrently, but the period taken would have been no less had only the stormy weather repairs been carried out. The House of Lords held the claimant was not entitled to damages for loss of use or demurrage for the 10 days which would have been required to repair the tort damage separately. The original collision was a “but for” cause of the storm damage, in the sense that had the collision not occurred the ship would not have been on the particular voyage in which the storm damage occurred, but the tort was merely part of the history of events that placed the ship in that place at that time and this in itself is not a “cause” of harm that arose from some independent mechanism. The storm damage was not within the risk created by the defendants’ negligence.[68]
66. Nuisance: measure of damages In nuisance causing physical damage to the land, actual (not merely prospective) damage is essential to a cause of action. In other nuisance, no actual financial/physical damage need to be proved. But if substantial damages are claimed, the measure of damages is the same as for tort generally, ie whatever foreseeable loss results to the injured party as a natural consequence of the wrongful act of the defendant.
67. For nuisance, “[if] in case of physical damage the damages are measured by the cost of replacement, this will generally be termed, in relation to nuisance, the cost of abating it”.[69] “But where an actionable nuisance interferes with the claimant’s property and in addition damages his chattels, it seems that the claimant can recover such consequential damages ......” [70] The courts have awarded damages for repairs to damage to property caused by water leakage,[71] and for cost of damage to chattels (eg trade stock).[72]
68. As for loss of amenity to land as a result (of which discomfort, inconvenience and distress were only symptoms), the pecuniary loss is measured by the diminution in value of the land,[73] and the courts must place a value on such intangible loss (ie assess general damages for loss of amenity attributable to the nuisance) which “cannot be assessed mathematically”.[74] In practice, the English courts have adopted an amalgam of 3 approaches to assessing quantum which ultimately is a matter for the judge: (a) one approach is based on rental value, ie the difference between rental value of the unencumbered property as compared with its rental value when afflicted with the nuisance or, to put it in another way, a notional reduction in the rental value of the afflicted property, (b) another approach is to assess damages generally referring as appropriate to decided cases insofar as they are helpful or, to put it in another way, by making a global award for discomfort and inconvenience, and (c) a mixture of (a) and (b) above which approaches are alternative ways of expressing the same concept.[75]
69. On the first approach in (a) above, the starting point is the English Court of Appeal decision in Dobson v Thomas Water Utilities Ltd which involved claims in nuisance brought by occupiers of properties affected by smells and mosquitoes from the defendant’s sewage works.[76] The English Court of Appeal at pp 333-334 emphasised it was the loss to the land, rather than the loss to the occupiers, that was central to the claim in nuisance (see also observations by Lord Hoffman and Lord Lloyd in Hunter v Canary Wharf Ltd[77] cited by HHJ Mimmie Chan (as she then was) in Larbons Limited v Kuo You Weaving Factory Ltd,[78] and by Briggs J in Moorjani v Durban Estates Ltd[79]). That is so as much for the case of transitory nuisance interfering with comfort and enjoyment of the land as it is for the capital value or other pecuniary loss:
“32. That leaves open the question how damages are to be assessed where there is …… loss of amenity. This question did not arise in Canary Wharf on the decision of the majority. Lord Hoffmann …… contemplated estate agents valuing the difference between the right to occupy a house without the nuisance and the right to occupy one with it, that is to say valuing the loss of (notional) rental value. Lord Lloyd …… may have contemplated the same. Lord Hope, however, …… said that the assessment is of ‘the extent to which the nuisance has impeded on the comfortable enjoyment of the [land]’, and he appeared to regard a notional personal injuries award as ‘[a]t best … a guide’.
33. If the house in question was available to be let during the period of the nuisance, it may be that there would be direct market evidence of loss of rental value. Otherwise, it is perhaps inevitable that the assessment of damages for loss of amenity will involve a considerable degree of imprecision. But if estate agents are to assist in placing a value on the relevant intangibles, whether by calculating the reduction in letting value of the property for the period of the nuisance or in some other way, we would expect them in practice to take into account, for the purposes of their assessment, the actual experience of the persons in occupation of the property during the relevant period. It is difficult if not impossible to see any other way of proceeding. As Lord Hoffman observed, the measure of damages for loss of amenity will be affected by the size and commodiousness of the property. If the nature of the property is that of a family home and the property is occupied in practice by a family of the size for which it is suited, the experience of the members of that family is likely to be the best evidence available of how amenity has been affected in practical terms, upon which the financial assessment of diminution of amenity value must depend.” (my emphasis)
The case was remitted to the trial judge for assessment of damages which were quantified by reference to the reduced rental value of the affected premises attributable to the loss of amenity caused by the nuisance.[80] But in the subsequent case of Earle v Charalambous, whilst recognising valuation evidence may be relevant for ascertaining the underlying rental value, Carnworth LJ considered the notional judgment of resulting reduction in the rental value of the afflicted property will not be capable of precise estimation, but a matter for the judgment of the court rather than expert evidence.[81] In Earle, the English Court of Appeal applied 50% reduction to the rental value for the period when the claimant remained in occupation of the afflicted premises after taking into account the claimant’s perception of the scale of the problem, the time reasonably needed for repairs and other relevant considerations (see paragraphs 37-40 and 46). In Moorjani, the English Court of Appeal applied notional reduction of rental value by 2.5% and 10% for the different periods when the claimant was not in occupation for reasons unconnected with the disrepair, and 5% and 20% for different periods when he was in occupation (pages 45-49).
70. On the second approach in (b) above, in the first instance decision of Anslow & ors v Norton Aluminium Ltd, a nuisance case involving alleged chemical emissions, odours, noise, smoke fumes, particular matter and dust, liability was found and HHJ McKenna rejected the rental value approach as not practicable or reasonable because there was too little primary data “and in the circumstances I propose to adopt the tried and trusted method of assessing figures for general damages as would be done in personal injury claims where there is a claim for loss of amenity whilst not losing sight of the fact that these are claims concerning land and where the damages awarded tend to be modest ……”[82] It appears that where rental evidence is not available or is unreliable, it may be neither practicable nor reasonable to make use of diminution in value (market rental) figures, and resort may be made to a general damages approach.
71. It is, however, important to recognise that for an award for loss of amenity, the claimant must show he actually suffered a loss of amenity in the sense that he had to suffer the “difference between the right to occupy a house without the nuisance and the right to occupy one with it” (my emphasis). In Dobson at pp 333-334, Waller LJ said,
“34. On ordinary principles, it must also be clear that a claimant must show that he has in truth suffered a loss of amenity before substantial damages can be awarded. If the house is unoccupied throughout the time of the (transitory) nuisance, has suffered no physical injury, loss of value or other pecuniary damage, and would not in any event have been rented out, we are unable to see how there can be any damages beyond perhaps the nominal. A homeowner may be posted abroad, or working elsewhere without knowing when he will return, but may wish to keep the house available for himself at any time. He may be living elsewhere and waiting for the market to rise before selling. The house may be empty awaiting renovation. In none of those situations would there be any actual loss of amenity. So in this way also, as a matter of practicalities, the assessment of common law damages for loss of amenity to the land is likely to be affected by the actual impact of the nuisance upon the occupier, or the lack of it.
35. It follows that the actual impact upon the occupiers of the land, although not formally the measure of common law damages for loss of amenity, will in practice be relevant to the assessment of such damages in many cases, including such as the present where a family home is in question and no physical injury to the property, loss of capital value, loss of rent or other pecuniary damage, arises.” (my emphasis)
72. Where there is lack of actual impact of the nuisance upon any occupier, there is no actual loss of amenity. In Let’s Go Investments Limited v Yeung Sau Hing,[83] the defendant by counterclaim successfully established that the plaintiff was in breach of the deed of mutual covenant and was also liable in nuisance and negligence, but could not show any actual loss or damage as a result. The trial judge awarded damages to compensate the defendant for the security risk posed by the breach of covenant, but the Court of Appeal at paragraph 19 noted the relevant period was from 1998 (breach occurred) to 2003 (breach ceased), and by 1996 the affected property “had been left vacant and unoccupied”. It was held as follows:
“24. Between 1998 and 2003 the defendant’s property continued to be unoccupied. There was no evidence that despite this security risk [ie breach of covenant], it had caused any actual loss or damage to the defendant. ……
…….
26. …… This is the classic situation of awarding nominal damages to her so as to recognize her legal rights have been infringed. ……
27. …… the appropriate amount of damages in this case should be $100.” (my emphasis)
In Larbons Limited, the plaintiff’s claim for loss of amenity to land failed as it was not pleaded (see paragraph 93). In that case, the director of the plaintiff and her family remained at the afflicted property, so had the claim been properly pleaded, HHJ Mimmie Chan (as she then was) observed obiter that the defendant would only have been liable for diminution of utility value of land for the period from when the defendant learned the water leakage came from defective drainpipes in its property up to when the water seepage to the afflicted property ceased (see paragraph 91).
73. Thus, for assessing loss of amenity, a distinction must therefore be drawn between (a) where the defendant remains at the afflicted premises before abatement of the nuisance, and (b) where he vacates the afflicted premises because of the disrepair. In respect of (a) above, it is said that where the claimant suffers actual loss by remaining in the afflicted premises, his personal loss of amenity and inconvenience is equivalent (at least in value) to the impaired amenity of the flat.[84] Local authorities abound with awards made in such manner.[85] But in respect of (b) above, ie where the claimant moves out of the afflicted premises because of the nuisance, this is mitigation of loss on his part. The compensatable loss recoverable is his cost of alternative accommodation,[86] and perhaps general damages (if proved) for the trouble, inconvenience, annoyance and discomfort of having to move out from the afflicted premises (eg additional transport problems).[87]
74. Nuisance: landlord’s/tenant’s liability The person to be sued for nuisance is the one who has possession and control of the land from which the nuisance emanated. Lord Wright said at page 903 in Sedleigh- Denfield that: “…… “Property” here means land and should be amplified to include rights over or in connection with it. “Occupier” may in certain cases be used with a special connotation. The ground of responsibility is the possession and control of the land from which the nuisance proceeds …… [But an] occupier may make in many ways a use of his land which causes damage to the neighbouring landowners and yet be free from liability”.
75. If a nuisance arises prior to a letting, the owner/landlord does not cease to be liable by virtue of parting with possession. If he knew of the potentially harmful condition of the property before letting, or ought to have known of it, he remains liable for harm accruing after the letting (even though he may have his remedy over against the tenant if there is an effective covenant to repair by the tenant).[88] This knowledge includes presumed knowledge, ie the case where the landlord should have known but did not.[89]
76. If the nuisance arises after the tenancy is granted, Lord Neuberger PSC in Lawrence & anor v Fen Tigers Ltd & ors (No 2) said as follows:[90]
“11. Lord Millett explained in Southwark London Borough Council v Mills [2001] 1 AC 1, 22, that, where activities constitute a nuisance, the general principle is that ‘the … persons directly responsible for the activities in question are liable; but so too is anyone who authorised them’. As he then said, when it comes to the specific issue of landlords’ liability for their tenant’s nuisance, ‘it is not enough for them to be aware of the nuisance and take no steps to prevent it’. In order to be liable for authorising a nuisance, the landlords ‘must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property.[91]’”
77. The test of the landlord’s duty to his neighbour depends on the degree of control exercised by the owner in law and in fact for the purpose of repairs.[92] In general, “[the] landlord is not liable where the condition giving rise to the nuisance occurs only after he has parted with possession to a tenant, and when he is under no obligation to repair and has retained no right or power to control. Here, the tenant as occupier is exclusively liable”.[93] In the absence of an express duty to repair (and at common law there is no implied covenant to repair unfurnished premises demised by the landlord[94]), a landlord cannot be liable in nuisance on the basis of authorisation of the tenant’s ordinary use of the demised premises, ie activities that are incapable in law of constituting an actionable nuisance. This is so even if the interference is a consequence of defects in the structure of the premises which existed prior to the letting, provided the landlord is not himself responsible for those defects. It was said there is no law against letting a tumble-down house.[95]
78. But the landlord may be liable for conditions giving rise to nuisance during the tenancy if he has retained a measure of control over the premises “either because he has duty to repair, or a power. If the landlord himself undertakes to repair he is liable to a person injured through disrepair whether he knew or ought to have known of the disrepair or not ……”[96] Where the landlord covenants to repair the demised premises or part thereof, there may be an express term requiring notice of disrepair. But even if there is no such express term, notice of the defect to the landlord is normally necessary for the triggering of the duty to repair.[97] If there is no covenant to repair on the part of the landlord, the landlord is still liable if he has reserved the right to enter and do any necessary repairs.[98]
79. On the other hand, the tenant is liable as occupier, either on the basis of creating or continuing the nuisance. He does not escape liability because his landlord may be liable, even if the landlord has positively covenanted with him to repair.[99] Occupiers of land generally come under a duty to abate any nuisance hazard on or emanating from the land of which they have knowledge or presumed knowledge because “occupation generally gives such immediate and practical control over the property that the occupier is justifiably made liable on the basis of omission”.[100] In L E Jones (Insurance Brokers) Ltd v Portsmouth City Council,[101] Dyson LJ explained the criterion for liability of an occupier for nuisance as follows:
“11. In my view, the basis for the liability of an occupier for a nuisance on his land is not his occupation as such. Rather, it is that, by virtue of his occupation, an occupier usually has it in his power to take the measures that are necessary to prevent or eliminate the nuisance. He has sufficient control over the hazard which constitutes the nuisance for it to be reasonable to make him liable for the foreseeable consequences of his failure to exercise that control so as to remove the hazard. ……”
In short, the court looks to see whether the occupier has sufficient control, both in fact and in law, to prevent any nuisance from occurring, and to eliminate any nuisance that did occur.[102]
80. But even if duty on the part of the tenant is established, the next question is what reasonable steps should be taken to abate the nuisance. Mr Brown drew my attention to Leung Tsang Hung v Incorporated Owners of Kwok Wing House,[103] which is a case on public nuisance in which the Court of Final Appeal gave some useful guidance at page 500 on the duty of the tenant occupier:
“36. Another subcategory within this class involves land, not occupied by the owner but by a tenant (by which term I include any subtenant or licensee who may be in actual occupation). It is clear that the tenant, as occupier and therefore presumptively in immediate control of the premises, is in principle subject to liability by way of omission ……
37. However, it may be quite unrealistic to expect the tenant, who may merely be a weekly or monthly tenant with modest resources to have the means to eliminate and to be required to assume sole responsibility for eliminating a nuisance hazard of which he knows or ought to know. The courts have therefore been ready to hold that the owner or landlord remains liable even though he has parted with possession to the tenant. Thus, in Wilchick v Marks and Silverstone, a passer-by was injured by a shutter falling from a building and sued both the owners and the tenant. The landlords were found to have known of the hazard posed by the shutter and to have reserved to themselves the right to enter and do repairs if they thought fit. That was enough for the court to hold them liable along with the tenants. ……”
This brings into consideration what is reasonable for the tenant/occupier to do as discussed in paragraph 59 above.
81. Contract: implied terms I turn to the recent guidance by the Court of Appeal in Lo Yuk Sui v Fubon Bank (Hong Kong) Limited formerly known as International Bank of Asia Limited[104] for the proper test for implication of contractual term. The Court of Appeal agreed with the requirements identified in BP Refinery v Shire of Hastings,[105] adopted in Kensland Realty Ltd v Whale View Investment Ltd,[106] commented on in Marks & Spencer plc v BNP Paribas Securities Services,[107] and summarised in Nazir Ali v Petroleum Company of Trinidad and Tobago[108] as follows:
“It is enough to reiterate that the process of implying a term into the contract must not become the re-writing of the contract in a way which the court believes to be reasonable, or which the court prefers to the agreement which the parties have negotiated. A term is to be implied only if it is necessary to make the contract work, and this it may be if (i) it is so obvious that it goes without saying (and the parties, although they did not, ex hypothesi, apply their minds to the point, would have rounded on the notional officious bystander to say, and with one voice, ‘Oh, of course’) and/or (ii) it is necessary to give the contract business efficacy. Usually the outcome of either approach will be the same. The concept of necessity must not be watered down. Necessity is not established by showing that the contract would be improved by the addition. The fairness or equity of a suggested implied term is an essential but not a sufficient pre-condition for inclusion. And if there is an express term in the contract which is inconsistent with the proposed implied term, the latter cannot, by definition, meet these tests, since the parties have demonstrated that it is not their agreement.”
82. Contract: right to indemnity Judge Lok (as he then was) in Grandregal Enterprises Ltd v Sitwell Estates Ltd set out the law of implied general indemnity as follows:[109]
“6. …… The rule relating to such kind of claim was explained by Fletcher Moulton LJ in Re Richardson, ex p St Thomas’s Hospital (Governors) [1911] 2 KB 705, 712 (cited in p 567 of Telfair Shipping Corp v Inersea SA, The Caroline P [1985] 1 WLR 553):
If, for instance, B. was bound to pay a sum to A. and C. was bound to indemnify B., ... then B. could not sue C. unless he could aver payment to A. …… No better example of this could be given than the case of Collinge v Heywood (1839) 9 A & E 633. ... the rule in Chancery was somewhat different, and yet, for my mind, it emphasizes the fundamental principle that you must have paid before you have a right to indemnity, because the remedy which equity gave was a declaration of a right. You could file a bill against the principal debtor to make him pay the debt so that you would not be called upon to pay it, and then you obtained a declaration that you were entitled to an indemnity. You could in certain cases have a fund set aside in order that you might be indemnified, to avoid the necessity of your having to pay and then to sue for the money you had paid, which perhaps would not repair your loss and credit even if it discharged the debt. But I do not think that equity ever compelled a surety to pay money to the person to whom he was surety before the latter had actually paid. He might be ordered to set a fund aside, but I do not think that he could be ordered to pay.”
XI. MISCELLANEOUS MATTERS
83. By the time of closing submissions, the parties’ respective stance was more clearly elicited. Save for the 06/11 Incident and the Laundry Area (which Ds claimed suffered from water attacks due to various possible causes other than Flat 1E), it was clear the Cabinet/ Bathroom Areas were localised under spots at/near the Yard / Light Well Structures (particularly at the seams where such structures met the parent structure). Ds claimed it was not foreseeable that water leaking from any drainpipe onto the Yard / Light Well Rooftops (which should properly function as impermeable and weatherproof outdoor rooftops) would result in water damage inside Flat 1E (including the Yard / Light Well Structures), so the operative/effective cause of P’s alleged loss/damage was the defective Yard / Light Well Rooftops for which there was no actionable nuisance.
84. D1 further claimed as soon as she had knowledge of the alleged water leakages she cooperatively took steps to abate the alleged nuisance by rectifying/replacing the drainpipes at Flat 1E, and she also put P to proof of any alleged negligence. Turning to D2/TP1 and TP2, they claimed that as occupants of Flat 1E they were not liable for any sudden one-off water leakage incident[110] unless it was shown (but P had not done so) they were was negligent or had put Flat 1E to unreasonable use.[111] D2/TP1 and TP2 as occupants also claimed they did not have control in fact and in law of any allegedly leaking pipe/drain at Flat 1E to abate continuation of such nuisance, and it was D1 who had the right/power to maintain/repair the pipes/drains of Flat 1E and who had assumed responsibility by repairing and replacing such pipes/drains herself. Further, notwithstanding P’s complaints, D2/TP1 and TP2 claimed they did not have actual or presumed knowledge that Flat 1E was the water source of the leakages at Flat GE when D2/TP1 was not able to find any patent defect at Flat 1E and not obliged to investigate any latent defect. In any event, it was said they had taken reasonable steps to abate the alleged nuisance.
85. With these matters in mind, I turn to the facts in this case. The Experts confirmed (and I accept) water leakages from the pressurised water supply pipes/system could be excluded as there was only on-and-off and not continuous water leakages, so I focus on the drainage pipework/system. For convenience, pages in the trial bundle are referred to in this judgment as “[bundle number] / [page number]”.
XII. BEFORE MID-NOVEMBER 2006
86. Pre-existing condition of Flat GE Loke Sr spent a year to renovate/refurbish Flat GE and another year to buy furniture/carpets at a cost that exceeded $3,000,000.[112]
87. Alleged water leakages P’s pleadings averred water leakages “[started] from around November 2006”, [113] and her witness statement referred to “1st Occurrence” of water leakage in November 2006. There was no plea of any water leakage before 13 November 2006 that came from Flat 1E. D2/TP1 did not occupy Flat 1E at that time, and so could not be liable.
88. But P testified there were water leakages at Flat GE even before 13 November 2006 which she claimed to have told Wong (but not the BMO) as follows:
| (a) |
A row of full-height built-in wooden cabinet (wardrobe and drawers) was installed along the Cabinet Wall within the Yard Structure (“Old Cabinet”) with its west end against the brickwork wall of the Loke Jr Bedroom and its east end against another brickwork wall (B3/471) that separated (i) the GE Dining Area (next to the GE Kitchen) and (ii) the GE Living Area (outside the Loke Jr / GE Master Bedrooms). P initially claimed there were water leakages before 13 November 2006 from the false ceiling above the east end of the Old Cabinet marked “X” in Exhibit P2 (“Location X”),[114] but later said she first noticed water seepage there “…… on 13 November [2006], on the same day when [she] made the first formal complaint …. to the [BMO]”. |
| (b) |
P claimed water leakages at the false ceiling above Locations B in the Original BRm Area were sighted before 13 November 2006, and she thought they started around early 2006. |
| (c) |
P thought water leakages at the ceiling at Location Y and also at the ceiling above the Helper Bed marked “Z” in Exhibit P2 (“Location Z”) in the GE Laundry Room “started in …… year 2006”. |
89. In August 2002 Loke Jr went abroad for further studies, but he returned “[after] a year or two” during school break for short stays at Flat GE when he began to suffer allergies/irritations said to be triggered by such short stays, which condition worsened as time went by. Loke Jr claimed it was only in November 2006 that “[his] parents found out that there was water leaking into [Flat GE] from [Flat 1E]”, and told him Flat GE’s damp/mouldy condition was due to such water leakages. But there was no medical evidence to establish the medical causation for Loke Jr’s condition (or for P’s similar/other complaints of sore throats, allergies/irritations and other ailments that allegedly required medical attention), and Loke Jr’s suspicion about his condition that surfaced “a year or two” after he went abroad (ie latest by August 2004) did not sit well with absence of water leakage complaint by P before 2006. In any event, there was no claim for Loke Jr’s (and/or indeed Loke Sr’s) alleged sufferings. As for P, whilst I accept she was discomfited by the water leakages experienced in Flat GE, I am not satisfied her various allergies, irritations and/or ailments that required medical attention were caused by water leakages from Flat 1E.
90. I am not satisfied water leakages occurred at Locations X and B (ie Cabinet/Bathroom Areas) before 13 November 2006 and/or D1 had actual/presumed knowledge of water leakages from Flat 1E to Flat GE (even though I accept there had been moisture attack at Locations Y and Z and at the ceiling of the GE Helper Toilet):
| (a) |
P’s pleadings and statement evidence were silent on any water leakage before 13 November 2006. Loke Jr suspected his allergies/ irritations were caused by (as his parents told him) water leakages at Flat GE in November 2006, but before then the cause was unknown. P’s correspondence with D2/TP1 and the Manager in/after 2007 referred to water leakages starting in November 2006. Further, Ho was instructed that water leakages at Flat GE were “first noticed” in November 2006.[115] |
| (b) |
P took photographs and reported water leakages to the BMO on 13 November 2006. P had never been shy in making subsequent complaints to the BMO, so there was no credible reason for her not to take photographs and/or make complaints to the BMO if water leakages did occur before 13 November 2006. |
| (c) |
Since any water leakage at the 3 Areas before 13 November 2006 would materially inform the water source/route of subsequent leakages at the same spots, there was again no credible reason for P to be reticent about these prior water leakages until her testimony at trial. |
| (d) |
In any event, P’s evidence about the prior water leakages, especially the leakages at Location X, was quite vague, and it wavered uncertainly over whether they did or did not occur before 13 November 2006. |
| (e) |
D1 and her family moved out of Flat 1E in mid-2006, so there was no waste water going into any floor slab and/or drain hole, hence water leakages at Flat GE from mid-2006 to 13 November 2006 necessarily came from water source(s) other than Flat 1E. |
91. In my view, P exaggerated/embellished her case by asserting earlier water leakages at Flat GE to bolster her claim of active water leakages at Locations X, U and Z in November 2006. That said, I accept for reasons explained below that there had been previous water/moisture attack at Locations Y and Z and at the ceiling of the GE Helper Toilet, but there was no claim and no sufficient evidence to show the water/moisture came from Flat 1E, and in any event they had dried up by November 2006.
XIII. 2006
92. Flat 1E was unoccupied from mid-2006 until D2/TP1 took possession in late January 2007, so D2/TP1 could not be liable for any water leakage at Flat GE before that time, and no waste water would originate from Flat 1E since D1/Li lived in Mainland China and only visited Villa Dorada occasionally to collect mail from Wong.
93. P’s claim But P claimed that since about November 2006 water escaped from Flat 1E and leaked to Flat GE to dampen the 3 Areas[116] at Locations X,[117] U[118] and Z,[119] and that she saw water coming from the ceilings with possible water sources being (a) drainage system / Kitchen Sink of the 1E Kitchen right above Location X, (b) drainage system of the 1E Helper Bathroom right above Location U, and (c) drainage system of Flat 1E right above the GE Laundry Room. P also claimed D1 was notified of her water leakage complaints but took no remedial action.
94. Complaint to BMO On 13 November 2006, P complained to Selex Properties. On the following day, Selex Properties’ staff inspected Flat GE and took photographs of Locations X, U and Z with the following observations:
“Part of the [Old Cabinet] was wetted at [Flat GE].
Water was leaking from the ceiling and floor near the [GE Kitchen]. …… After investigation, it was suspected that water leakage might originate from the [1/F Kitchen].” (C1/41-44)
“Watermarks were also found at the ceiling of the [GE Master Bathroom]. After investigation, it was suspected that it might originate from the defective fresh water supply pipe of [Flat 1E] few days ago. The repair work was completed on 11 November 2006. The situation now is normal.” (C1/46)
“Dried watermarks were found at the ceiling of [the GE Laundry Room]. It was suspected that water leaking was happened before.” (C1/45)
On 23 November 2006, Selex Properties wrote to P (D/1) inter alia as follows:
“…… Water leakage was found at the ceiling and floor of the [Old Cabinet] next to the [GE Kitchen]. Part of [the Old Cabinet] was dampen. It was suspected that water leakage might be originated from [the 1E Kitchen]. Besides watermarks were also found at the ceiling of [the GE Laundry Room] and [GE Master Bathroom]. …… The occupier of [Flat 1E] was informed of this matter on the same day and requested to conduct necessary inspection and repair as soon as possible.” (my emphasis)
There was no evidence of what investigations were done by Selex Properties that led to suspicion that water leakages at Location X originated from the 1E Kitchen. I am unable to place weight on such assertion.
95. Location X / Cabinet Area I accept there was active water leakages seen at/under the false ceiling at Location X on 13-14 November 2006 (see footnote 117 above), but P/Ho did not identify the water source or seepage route. I note the false ceiling at Location X within the Yard Structure was localised underneath the corner at/near where (a) the waste water drainpipes of the 1E Kitchen exited the external Kitchen Wall, (b) the Yard Rooftop met the parent structure, and (c) the Internalised Drainpipes passed through the Yard Rooftop and were concealed by the Yard Structure inside Flat GE (C1/80 and see paragraph 16(b) above, “Kitchen/Yard Corner”).[120]
96. The Experts by the Joint Report agreed the Internalised Drainpipes of Flats 2E/1E were masked by the Yard Structure, and water could have leaked into Flat GE from (a) a defective Yard Structure that was not impervious to water and/or (b) a blockage in the drainage system concealed by the Yard Structure that was not inspected, maintained or repaired since 2000. Also, I disagree D1’s sister occupied Flat 1E from mid-November 2006 to late January 2007 (see paragraphs 125-126 below), so during such period Flat 1E was unoccupied with no waste water going into the Sink / Kitchen FD Drainpipes and/or waste water drainpipe of the washing machine, which meant water source(s) for leakages at Location X / Cabinet Area could not have come from the drainage system of the 1E Kitchen as alleged.
97. But on the Yard Rooftop there were (a) other drainpipes that served Flat 2E and other flat units in Block A (eg the waste water drainpipes from the kitchen of Flat 2E – see paragraph 16(b)(ii) above), (b) communal drainpipes (eg the rainwater drainpipe and Common Vertical Drainpipe – paragraph 16(b)(i)-(ii) above), and (c) Rooftop Lines (see paragraph 16(b)(iv) above, Exhibit P5 and paragraph 195 below), all of which passed into Flat GE at the Kitchen/Yard Corner to become Internalised Drainpipes and/or to become connected with the internal ACV System. Given the confinement of water leakages to Location X (and not other parts of the Old Cabinet),[121] absence of waste water from Flat 1E, and lack of evidence of blockage in the concealed drainage system in November 2006, I find that the water leakages at Location X could only have come from leakages from any pipe/drain/conduit in (a)-(c) above and/or rainwater falling onto the Yard Structure (and it did rain on 13-14 November 2006) that could not be drained away (see paragraphs 98(a) and 359(b) below). Plainly, (i) water from (a)-(c) above would not have entered Flat GE unless the Yard Rooftop/Structure (particularly at the Kitchen/Yard Corner) were defective/leaking, and/or (ii) the Rooftop Lines were defective/dilapidated such that they became water vessels that carried rainwater and/or leaked water inside the Yard Structure in Flat GE. This was unsurprising as there was no proper access to the Yard Rooftop for inspection, cleaning, maintenance and/or repair although such structure/pipes/drains/conduits would age and deteriorate as time went by.
98. The fact that the Yard Rooftop/Structure were not impervious to water was supported by the condition of the Yard Structure. In 2014, Wu went onto the Yard Rooftop to view its layout/condition, and he viewed the Yard Structure from within Flat GE after removal of the false ceiling. He could see a square metal framework supporting a heat insulation layer (made of fiberglass and aluminum steel foil sheet) and a waterproofing layer that appeared to sit on metal brackets at the walls of the parent structure, and despite some rustiness the Yard Structure appeared quite strong. The water spray test on the Yard Structure in 2014[122] showed (a) there was flooding around the drain hole on the Surface Channel, (b) colour-dye water dripped inside via joints at the skylights, (c) insulation materials were soaked with colour-dye water, (d) colour-dye water was collected in the Yard Structure, but (e) leakage diminished upon removal of the colour-dye water, all of which suggested the waterproofing feature of the Yard Rooftop/Structure was defective.
99. Mr Fong submitted such observations in 2014 did not speak of the Yard Structure’s condition in 2006-2012. In my view, at the very least, such observations lent weight to my view that all along the Yard Rooftop/Structure was not impervious to water:
| (a) |
The analysis in paragraphs 95-97 above clearly showed the Yard Rooftop/Structure were not impervious to water. |
| (b) |
Holes/openings were made on the Yard Rooftop (and any waterproofing feature thereon) for the Internalised Drainpipes and Rooftop Lines to enter Flat GE (see paragraph 17(i)-(ii) above). |
| (c) |
In early 2008, Loke Sr’s contractor saw water seepage at the Kitchen/Yard Corner (see the Bottom Photo) despite repairs done for the Rooftops in late 2007 (C2/189 and see paragraphs 227 and 228(a) below). |
In my view, the above matters were at least consistent with and supportive of my finding that the Yard Rooftop was defective and not impervious to water in November 2006, and P obviously failed to exclude the water sources in paragraph 97(a)-(c) above and/or rainwater as relevant water sources for leakages at the Cabinet Area in November 2006.
100. Location U / Bathroom Area P only saw watermarks and no active dripping, but she disagreed water leakages at Location U had ceased by 13 November 2006. I find D1 was in Mainland China when Wong telephoned her on/before 11 November 2006 (see paragraph 94 above) about water leaking from a pipe on the external wall outside Flat 1E, and this was the 1st time she received any water leakage complaint. D1 arranged for her contractor to inspect and (if found necessary) to repair such pipe, and her contractor reported later that day that the necessary works (which turned out to be quite expensive) had been completed. On 14 November 2006, Selex Properties’ staff photographed the replacement pipe (which was a freshwater supply pipe that belonged to Flat 1E) with remark that “[replacement] work of defective freshwater pipe was completed on 11 November 2006” (C1/47). Selex Properties gave such annotated photograph to P, so I find P knew the defective external freshwater supply pipe had been replaced.
101. Wu actually went onto the Light Well Rooftop in 2014 to check its layout, so he could recognise the horizontal replacement freshwater supply pipe depicted in C1/47 was installed on the external wall underneath the windows of the 1E Master Bedroom and was connected to 1 of 4 vertical freshwater supply pipes on the adjoining external wall of the 1E Guest Bathroom, all of which pipes were on/above the Light Well Rooftop.[123] Ho also agreed the horizontal freshwater supply pipe was installed above the Light Well Structure. In my view (and Ho agreed), the only possible water sources in that Bathroom Area were (a) leakages from such horizontal freshwater supply pipe (before it was replaced), any of the 4 vertical water supply pipes, the rainwater drain and/or other pipes/drains on/above the Light Well Rooftop and/or (b) rainwater falling onto the Light Well Rooftop since Flat 1E was unoccupied at the time without any generation of waste water. For (b) above, Ho agreed the 6-7 drain holes on the Light Well Rooftop were blocked by leaves/debris at the time of his inspection in 2014 (B4/684, see paragraph 359(a) below). The situation would likely be similar in November 2006 since there was no proper access to such rooftop for cleaning, maintenance and/or repair. Further, as Ho opined, whilst the drain holes on such rooftop would be sufficient for light rain, they would not be adequate if there was heavy rain, thus rainwater would also be a concurrent source. But water from the sources in (a)-(b) above could seep inside the GE Master Bathroom in Flat GE only if the Light Well Rooftop was defective/leaking. I agree with Ho that any leakage and/or rainfall in (a)-(b) above and corresponding leakage inside the GE Master Bathroom would show quite obviously the waterproofing feature of the Light Well Rooftop was defective otherwise “no water should be able to pass through, be it rainwater or otherwise”. Indeed, the Experts by the Joint Report agreed (and I accept) the external freshwater supply pipe belonging to Flat 1E that was defective/leaking and water that accumulated on the Light Well Rooftop could seep through the defective Light Well Structure to cause water leakage from the false ceiling at Location U.
102. I bear in mind Location U where the watermarks were seen (or even Locations B as P in evidence would have it) was under the seam where the Light Well Rooftop met the parent structure (which as explained in paragraphs 103-104 below was likely to be a weak point of the Yard Rooftop susceptible to water leakage particularly as there was no proper access to such rooftop for inspection, maintenance and repair since 2000). But in any event, the open doorway between Locations U and TB physically merged the Original and New BRm Areas into an enlarged GE Master Bathroom with common framework, ceiling plenum and false ceiling,[124] so any leaked water that seeped through any part of the Light Well Rooftop could flow across such false ceiling to leak out at Location U (or even Locations B).
103. Wu said the Light Well Structure (a grid-form metal frame purlin with metal sheet and rooftop with a pale white cover) had smaller steel members than those of the Yard Structure, and so such structure was not as strong as the Yard Structure. He said (and I accept) the Light Well Structure was affixed to the parent structure by wall angles (which would be straight) on the structural walls (which would have some curvature), so gasket had to be applied to the inevitable gaps even when the metal angles were screwed tightly, but the gasket would be subjected to heat, structural vibration and deterioration with passage of time, and weeds might grow on it. I accept by the time of Wu’s inspection in 2014 the Light Well Structure was deteriorated, rusty and corroded. Further, the water spray test at the Light Well Rooftop that Wu carried out in 2014 revealed (a) colour-dye water rushed down the seam between the Light Well Structure and parent structure, (b) colour-dye water dripped from the Rooftop Lines which were dilapidated so the electrical and mechanical facilities on the Light Well Rooftop could convey water inside Flat GE, and (c) large amount of colour-dye water collected in the GE Master Bathroom which suggested defective waterproofing integrity of the Light Well Rooftop.
104. Mr Fong submitted there were limitations to Wu’s observations in 2014 since Flat GE was left unattended without ventilation after early 2012 with consequent deterioration. But lack of ventilation related to Flat GE’s internal rather than external condition. Mr Fong also argued the Rooftops would have deteriorated as time went by,[125] but deterioration of the Light Well Rooftop would not detract from the above finding that the only means for any of the water sources in paragraph 101(a)-(b) above to seep inside the GE Master Bathroom and leak out at Location U (or even Locations B) would be a deteriorated and/ or defective Light Well Rooftop that was not impervious to water. The results of the water spray test and Wu’s observations in 2014 were consistent with and supportive of such findings, and as seen in paragraphs 227 and 228(a) below, the repairs to the Light Well Rooftop by Loke Sr’s contractor in late 2007 were, in my view, reflective of P’s recognition that such rooftop was defective and leaking.
105. I therefore find the water leakages at Location U in November 2006 were not from the drainage system of the IE Helper Bathroom as P alleged, and P failed to exclude the water sources in paragraph 101(a)-(b) above, particularly leakages from the horizontal external freshwater supply pipe as explained above. In my view, the replacement of such external freshwater supply pipe by D1’s contractor on 11 November 2006 quite probably explained why watermarks and not active dripping were seen at Location U on 14 November 2006.
106. Location Z / Laundry Area Paintwork was seen peeling off the plaster at Location Z with white paint powder falling onto objects stored on the Helper Bed (C1/37 and C1/45), which in my view showed the ceiling thereat had suffered previous water/moisture attack but had dried up by then, and which in turn was consistent with Selex Properties’ observations (see paragraph 94 above) that there was no active water leakage at Location Z in/about November 2006. Indeed, when P wrote to Selex Properties on 23 March 2007 to reiterate her 1st complaint to the BMO 4-5 months ago (ie on 13 November 2006), she did not mention water leakage at Location Z. I find this was because P realised there was no active water leakage at the ceiling at Location Z in November 2006. It was telling that P did not even try to touch/examine the objects (eg paper cardboard box) stored on the Helper Bed because they appeared to her to be dry upon visual inspection.
107. The Experts by the Joint Report agreed the available photographs showed peeling paintwork and loose plastering (ie dried watermarks). Ho testified the peeling/powderised paintwork was the result of a process of expansion and contraction over a month or two after cessation of water leakage, but he later tried to back-paddle by saying he could not visualise whether the ceiling was dry or not. On balance I reject any notion that the ceiling at Location Z was still wet in November 2006. For the avoidance of doubt, I also find that in November 2006 no active water leakage travelled across the ceiling surface towards/down the Glazed Wall at Location A, otherwise P would have complained to Selex Properties whose staff would have taken photographs on 14 November 2006 of the active water leakages at Location A rather than the dried watermarks at Location Z.
108. P/Ho did not give information as to the water source/route for the dried watermarks on the ceiling at Location Z. But the Experts by the Joint Report agreed the condition at Location Z could have been caused by condensation, seepage through the Glazed Wall, and water source from Flat 1C or above. Ho suggested water leakage from Flat 1E was another possible cause, but I find this improbable since Flat 1E was unoccupied in November 2006 with no waste water going into any drainpipe or floor slab in the 1E Kitchen and/or 1E Laundry Room.
109. Ho at first accepted natural condensation might take place at the GE Laundry Room, but he later changed to say the main cause of the ceiling condition at Location Z (and/or even Location Y) was “water seeping from upstairs” (but condensation would accelerate the damage) because “maybe some decoration work was being carried out”. Ho by the Joint Report also suggested that absence of watermarks on the ceiling/ walls was not conclusive “as some simple repairs might have been carried out at that time and this could not be ascertained today”. But in fact Ho confessed he had no idea at all what “decoration work” or “simple repairs” were done by D1 “at the time”.
110. I disagree. In November 2006, D1 was unaware of P’s water leakage complaint about Location Z so she would not have carried out repairs at the 1E Laundry Room. Any subsequent repairs would not have altered the fact that no waste water was generated at Flat 1E in November 2006. Ho was therefore constrained to concede it was unlikely the water/ moisture attack at Location Z came from Flat 1E, but he claimed (a) “…… [the Building] was 37 years old and leakage could have happened before 2006 and caused an effect similar to this” and/or (b) “…… the water source might be Flat 2E or the [Glazed Wall]”. I reject (a) above as P never complained of water leakage from Flat 1E before 2006. On balance, I find the ceiling condition at Location Z (and/or even Location Y) in November 2006 was not caused by any leakage from Flat 1E’s drainage system as P alleged, and prefer Wu’s view that there were other probable water sources for the dried watermarks on the ceiling at Location Z (and/or even at Location Y) as discussed below and which P/Ho failed to rule out.
111. (a) Floor slab Ho did not check whether there was any water supply inlet (eg water tap) or water discharge outlet (eg floor drain) in the 1E Laundry Room. Although Ho noted “VR” (vertical grating for draining water externally) in the original verandah next to the rainwater drain in the approved drainage plan, he did not look for it at Flat 1E. I prefer Wu’s evidence that there was no water supply inlet and/or water drainage outlet at the 1E Laundry Room, but there was a floor drain in the 1E Helper Toilet. Further, the floor slabs of the original kitchen, toilet/bathrooms and verandah of Flat 1E were by original design impermeable.
112. The Experts agreed a water ponding test would have been an appropriate test for checking the waterproofing integrity of a floor slab against floor infiltration.[126] Wu understandably did not propose such test as P/Ho did not identify the water route. But Ho himself did not propose such test purportedly because he (i) already “…… notice signs of water leakage and the causes or cause of the water leakage” at Flat GE, (ii) believed Ds only allowed visual inspection of Flat 1E, and (iii) was unaware of P’s allegation of water spillage from the washing machine at Flat 1E in mid-2007. I reject Ho’s reasons, and find Ho did not propose any water ponding test because he realised floor infiltration was not a relevant cause:
| (a) |
I cannot see how mere observation of dried watermarks on the ceilings at Location Z (and/or even at Location Y) would enlighten the water source/route from Flat 1E. |
| (b) |
Ho knew expert site investigation was not limited to visual inspection because (i) he himself carried out moisture content (“MC”) survey by using a protimeter and he engaged Infrascan to carry out infrared thermographic scanning survey in 2013 (ie before he proposed his test plan for joint inspection in May 2014), and (b) he knew Wu proposed to and did carry out a water ponding test (which was a non-destructive test) at the Courtyard Rooftop and he himself went further to carry out destructive test by taking plaster samples from Flat GE in 2014. |
| (c) |
I note it was P’s solicitors who first put forward Ho’s test plan for joint inspection of inter alia Flat 1E to D1’s solicitors on 24 May 2014, so Ho was not constrained by any restriction when he came up with his test plan, but he did not suggest any water ponding test. Further, when D1’s solicitors enquired with P’s solicitors on 5 July 2014 (ie shortly before the joint inspection of Flat 1E on 10 July 2014) as to whether Ho had any change for his initial test plan (including the nature/scope of tests to be done), they were informed by P’s solicitors on 7 July 2014 that Ho’s test plan of 24 May 2014 would suffice. |
| (d) |
Ho as expert had no sensible explanation for failing to even suggest a water ponding test to P and/or her solicitors, and to leave them to work out the practical arrangements with D1 and her solicitors for carrying out such test. |
| (e) |
For reasons explained in paragraph 173 below, I reject P’s claim of spillage from the washing machine at Flat 1E in mid-2007. |
113. (b) Flats 1C or above At first Ho opined that the possibility of the kitchen drainage systems of Flat 1C and/or the flat unit on the 2nd floor at Block C (“Flat 2C”) causing water attack at the 1E Laundry Room was small as such systems were away from the dividing wall that separated Blocks C and E, but he later said it was a possibility and added that water from Flat 2C could pass to the 1/F before reaching the G/F. In my view, P/Ho had not excluded such possible causes of water damage seen at the ceiling of the 1E Laundry Room in November 2006.
114. (c) Seepage through Glazed Wall There was a rainwater drain outside the original verandahs of Flats GE, 1E and 2E which parts were later enclosed as internal areas (eg GE and 1E Laundry Rooms). Ho thought the chance of seepage from such rainwater drain through defects in the Glazed Wall to be small because (a) the 4-inch cast iron rainwater drain was positioned 1-2 inches away from the Glazed Wall, and (b) the dried watermarks on the ceiling at Locations Y and Z were some distance from the Glazed Wall. But Ho testified that (i) rainwater could flow down the external wall at the 2/F to the 1/F and then down the external Glazed Wall to seep into the ceiling of Flat GE, or (ii) rainwater could seep into Flat 2E and through the floor slab into Flat 1E and then to the ceiling of Flat GE. In my view, P/Ho failed to exclude the possibility of rainwater seeping through the external wall and following an unpredictable route to emerge at weak points at the ceiling slab. But I agree condensation was a more likely water source for the damage to the ceiling of the GE Laundry Room.
115. (d) Condensation Ho explained condensation would occur on cold surface when there was abundant moisture in vapourised state in the environment, but he claimed Flat GE was unlikely to be in such condition in November/December 2006 as the ACV System was in operation to extract exhaust air and moisture from Flat GE and to maintain indoor air temperature at certain level, and there would be air movements generated by, say, opening/closing of doors. Ho agreed the sliding door between the GE Laundry Room and GE Kitchen (B1/162) had to be kept open for effective ventilation in the GE Laundry Room and/or GE Helper Toilet, but he guessed the sliding door was not often closed. When Ho realised there was no such evidence from P, he turned to say closing the sliding door would not make the GE Laundry Room airtight, but this, in my view, would be a far cry from having good ventilation.
116. Whilst I find washed clothes were probably dried by the clothes dryer so that condensation from manual drying was unlikely, I am unable to accept Ho’s opinion that Flat GE was so well ventilated that it was unlikely for condensation to cause water/moisture attack at the ceiling of the GE Laundry Room. In my view, even though there was mechanical ventilation at other parts of Flat GE (see paragraph 14 above), the GE Laundry Room and GE Helper Toilet were not intended to be and were not mechanically ventilated:
| (a) |
there was no false ceiling and hence no ceiling plenum at the GE Laundry Room and GE Helper Toilet for fresh/exhaust air to circulate for intake/discharge via the Ducts (see paragraph 14(a) above); |
| (b) |
there was no fancoil unit and/or A/C outlet at the GE Laundry Room or GE Helper Toilet for supply of chilled air; |
| (c) |
the sliding door was meant to be closed at least at times since the GE Laundry Room and GE Helper Toilet were by design the sleeping area and toilet for use by a live-in helper (if any); |
| (d) |
the only openable window in Flat GE was in the GE Laundry Room. |
I also find it probable that the sliding door was closed at least some of the time, thus rendering the air inside the GE Laundry Room and GE Helper Toilet quite warm and humid, especially when:
| (i) |
the GE Window was likely to be closed when the Helper Bed was used for storage purpose (see paragraph 13 above); |
| (ii) |
ambient light (and warmth) would filter into the GE Laundry Room through the glazed glass block tiles on the Glazed Wall and into the GE Helper Toilet through glass panes next to the Exhaust Fan (B5/894) at the external wall that divided the GE Helper Toilet and the Staircase landing area outside (“Toilet Wall”); |
| (iii) |
gas water heater would be switched on occasionally when hot water was needed from the GE Helper Toilet, which meant it was likely that the Exhaust Fan was switched on only occasionally; |
| (iv) |
warm and humid air created in the kitchen and bathrooms would be discharged to the ceiling plenum before discharging externally via the Discharge Duct that passed through the GE Laundry Room at the ceiling level. |
In my view, the inefficient fresh/exhaust air exchange in Flat GE explained above and in paragraph 14 above would encourage condensation in Flat GE. Even if the sliding door was kept open, the GE Laundry Room was a small enclosed area with single air entrainment/passage from the GE Kitchen via such doorway for the supply of chilled air when the ACV System was turned on, and in my view condensation would readily occur on the cooler surface in line with such air entrainment/passage, ie the affected ceiling areas at Locations Y and Z, in the warm and humid environment of the GE Laundry Room.
117. Thus, I accept there would be natural condensation in the GE Laundry Room, which Ho explained would be exacerbated when Flat 1E was occupied (eg before D1 and her family moved out in mid-2006) with use of A/C units leading to cooler structural ceilings at the GE Laundry Room and GE Helper Toilet. I find the paintwork peeling off the plaster on the ceiling at Locations Y and Z was largely the result of condensation that had dried up by November 2006 when Flat 1E had been unoccupied and without A/C for 4-5 months. Actually, Ho agreed condensation would produce similar result as seen on the ceiling at Locations Y and Z in November 2006 as it normally took a month or two after cessation of water leakage for the ceiling to dry up if there was no artificial ventilation to accelerate the drying up process. In my view, P/Ho failed to exclude the real probability that damage to the ceiling at Locations Y and Z were caused by condensation.
118. Here, it would also be useful to consider the GE Helper Toilet where similar (or more dilapidated) spalling with exposure of reinforcing bars was seen at the ceiling marked “D” in Exhibit P1 (“Location D”).[127] Interestingly, although P / Loke Sr saw need to renovate the GE Helper Toilet (see “Floor Plan 4” of the 2nd FBP referred to in footnote 18 above and footnote 163 below), P never alleged the ceiling condition at the GE Helper Toilet was caused by water leakages from Flat 1E, and offered no reason as to what caused such similar ceiling condition at the GE Helper Toilet.
119. The Wu 1st Report stated “[a] prolong and persistent condensation might be the cause for spalled concrete occurred on the ceiling” of the GE Helper Toilet, and the Wu 2nd Report stated it could be from the nearby Staircase but further study might be required upon enquiries with P. Ho did not think water intrusion from the external Staircase landing area (which was open to natural elements via windows and holes) into the GE Helper Toilet through the Toilet Wall was likely, but I do not believe him when he claimed to have checked the Toilet Wall and found nothing remarkable. After all, he took no photograph and did not mention such inspection in the Ho/Joint Reports. Ho also considered it unlikely for condensation to have taken place due to difference in temperature between the outdoor Staircase landing area and the indoor GE Helper Toilet, but eventually agreed there was possible use of hot water by the gas heater (with consequent warm and humid air) in the GE Helper Toilet.
120. In my view, given the absence of mechanical ventilation in the GE Helper Toilet (which was even smaller in size and even further recessed than the GE Laundry Room from A/C service at other parts of Flat GE), the difference in temperature between outdoor and indoor areas separated by the Toilet Wall, and for the reasons in paragraph 116 above, there was warm and humid air in the GE Helper Toilet for natural condensation to result in concrete spalling that had dried up by November 2006. I find this was why P never complained that the water/moisture damage at the GE Helper Toilet was caused by Flat 1E. I accept lack of natural ventilation and reduced air exchange efficiency encouraged condensation at the GE Laundry Room and GE Helper Toilet in the presence of warm and humid environment as explained above.
121. Summary I have found that in November/December 2006:
| (a) |
there were active water leakages at Location X from water sources at/above the Yard Rooftop (see paragraph 97 above) that seeped inside Flat GE via the Yard Rooftop, and P failed to show the water came from Flat 1E; |
| (b) |
the watermarks (without active water dripping) at Location U (or at Locations B as P in her evidence would have it) were caused by leakages from the horizontal external freshwater pipe (replaced on 11 November 2006) that seeped inside Flat GE via the Light Well Rooftop, and P failed to exclude other possible water sources on/above such rooftop (see paragraph 101 above) or to show the water came from Flat 1E; |
| (c) |
there were no active water leakages at Locations Z and Y, and the previous water/moisture attack did not come from that 1E. |
122. Notification to D1 In April 2009, P commenced SCTC19974/2009 (“SCT Action”) against Ds in the Small Claims Tribunal (“Tribunal”) claiming for various repair costs and other expenses as a result of water leakages from Flat 1E since November 2006. D1 claimed (and I accept) that she/Li first learned that water leakages occurred in November 2006 at Flat GE by the SCT Action, and that Wong merely told D1 in November 2006 about leakages from an external pipe without mention of any other water complaints.
123. P suggested that in November 2006 Selex Properties notified D1 of P’s water leakage complaint because (a) Selex Properties reported to P by letter dated 23 November 2006 (see paragraph 94 above) that the occupier of Flat E was informed on the same day and asked to carry out necessary inspection/repairs, and (b) the caretaker (presumably Wong) told P that Selex Properties would write to tell the owner of Flat 1E about P’s water leakage complaints and to enclose photographs taken on 14 November 2006. I am unconvinced by P assertions.
124. For (a) above, Selex Properties well knew by 14 November 2006 D1 had already replaced the external freshwater supply pipe on 11 November 2006. It also transpired P merely assumed Selex Properties told D1 about her complaints, but there was uncertainty as to who Selex Properties informed when its letter dated 23 November 2006 did not say the owner of Flat 1E was informed and Flat 1E had no occupier at that time. For (b) above, I find it improbable for Selex Properties to have written to D1 otherwise it would have copied such letter to P.[128] Further, no copy of Selex Properties’ letter to D1 was available even though on 2 October 2007 Selex Properties gave Loke Sr “a full set of the previous correspondence and photos taken regarding the water leakage incident at [Flat GE] for [his] retention” (D/12). In the end, P confessed she did not know exactly what information was given by Selex Properties. I find D1 first received notice from Selex Properties of P’s water leakage complaint by Selex Properties’ letter to her dated 12 April 2007 (see paragraph 184 below).
125. December 2006 P claimed that in December 2006 Wong came to Flat GE with a lady and introduced her as D1’s sister who sometimes stayed at Flat 1E and who wanted to have a look at Flat GE. P claimed this lady only stayed for a short while near the front door of Flat 1E, and she gave this lady a brief account of the water leakage problem at the 3 Areas. On 23 March 2007, P wrote to Selex Properties (D/4-5) stating inter alia that in December 2006 D1 sent her sister to Flat GE “to take a look at the damage”.
126. D1 agreed she had a younger sister who lived in Mainland China, but such sister did not visit Hong Kong and she did not ask her sister to visit Flat GE in December 2006. Given my findings that (a) Flat 1E was unoccupied in November/December 2006, (b) there were no active water leakages at Locations Z, Y and U (and/or Locations B), (c) the water attack at Location U (and/or Locations B) was due to leakages from an external freshwater supply pipe that had been repaired (and/or from water sources other than from Flat 1E), and (d) D1 was not notified by Selex Properties and/or by Wong of P’s complaints of water leakages in November 2006, I reject P’s evidence in the above paragraph. Further, if the express purpose of such lady’s visit to Flat GE was to have a look at the water damage as P alleged, it was quite implausible for her to remain at the front door without checking out the 3 Areas. In all, I find P’s evidence in this respect (including similar assertion in her letter dated 23 March 2007) to be a poor but exaggerated attempt to pin early knowledge of her water leakage complaints onto D1. This early embellishment set the tone for P’s propensity to exaggerate in subsequent correspondence, which must therefore be viewed with care.
XIV. 1ST TENANCY
127. Background A few days after D1 and her family moved out of Flat 1E in mid-2006, she decided to let Flat 1E, and arranged to place Flat 1E with 5-6 estate agencies (one of which was Broadview) for letting. D1’s asking monthly rent was $50,000. Some prospective tenants viewed Flat 1E, but there was no offer to rent. D1 did not reduce the asking rent. In December 2006, D2’s/TP1’s wife contacted Linda about Flat 1E. At/about end of 2006 or early 2007, D2/TP1 via Linda offered to rent Flat 1E at a monthly rent of $35,000 and to renovate Flat 1E before moving in.[129]
128. It was common ground between D1 and TPs that negotiations/ agreement for the Tenancies were between D1 and D2/TP1 for and on behalf of TP2. D1 (who did not understand English) negotiated the 1st Tenancy with D2/TP1 through Linda at 2 meetings at Broadview’s offices. At the 1st meeting, D1 (through Linda) and D2/TP1 for TP2 discussed the terms for the 1st Tenancy. At the 2nd meeting, they further discussed and eventually agreed on the tenancy terms whereupon Linda typed/prepared the 1st TA and Addendum (referred to the paragraph below) and explained their contents to D1. Then D1 as landlord and D2/TP1 for TP2 as tenant signed the 1st TA and Addendum.
129. The 1st TA dated 12 February 2007 provided for lease of Flat 1E at a monthly rent of $35,000 for 2 years from 1 March 2007 to 29 February 2009 with option to renew and rent-free period from 4 February to 30 April 2007. The relevant printed express terms of the 1st TA are set out in paragraph 33(a)-(c) above. D1 as landlord and D2/TP1 for TP2 as tenant also signed further written provision annexed to the 1st TA (“Addendum”):
“Tenancy Agreement
The Landlord agreed to provide the following items, in its current condition. To Tenant :-
1.) 6 nos. Existing air-conditioners
2.) 2 nos. Existing water heater in the bath room
3.) Existing light fixtures
4.) Washing machine [“Addendum Top”]
The Landlord and the Tenant both agreed to following terms:-
A) The Tenant shall be responsible for the maintenance, repair and or replacement of any of the electrical appliance furniture and fixtures in the premises. The Landlord shall keep and maintain the structural parts of the Premises including the main drains, pipes and cables in proper state or repair. [“Addendum Bottom”]”
130. D1’s stance D1 claimed:
| (a) |
she (i) asked D2/TP1 to replace all water supply/drainage pipes at Flat 1E because they had been installed for a long time, and (ii) told D2/TP1 she would only agree to a monthly rent of $35,000 on the basis of (i) above; |
| (b) |
D2/TP1 agreed to (a)(i) above (ie the Collateral Agreement), and upon such condition she accepted TPs’ offer to rent Flat 1E at $35,000/month; |
| (c) |
as the agreed rent was less than her asking rent, she required D2/TP1 to carry out his renovation/improvement works and to replace all water supply/drainage pipes at Flat 1E up to a value of about $300,000[130] to ensure the works would be comprehensive and up to standard, and she allowed an extensive rent-free period up to 30 April 2007 for such renovation/plumbing works to be done. |
D1 understood from the express terms of the 1st TA (including clause 14 – see paragraph 33(c) above) and Addendum that TP2 as tenant was also responsible for maintaining/repairing the pipes/drains to be laid/installed by D2/TP1 according to the Collateral Agreement, and she would only be responsible for external sections of such pipes/drains outside Flat 1E.
131. TPs’ stance D2/TP1 claimed the asking monthly rent for similar properties in the vicinity of Villa Dorada was $35,000-$36,000, so the monthly rent for Flat 1E offered/agreed at $35,000 was commensurate with the market rate, and TP2 would not have considered any monthly rent of $50,000. D2/TP1 told Linda his intention to renovate Flat 1E to make it more tenantable before moving in (see footnote 129 above), and was eventually given a rent-free period from February to April 2007 (ie almost 3 months) for such purpose. D2/TP1 agreed (a) the express terms of the 1st TA and Addendum were binding on TP2 as tenant, (b) he as TP2’s licensee owed a duty to TP2 to keep the interior of Flat 1E in a tenantable condition and to not breach the express terms of the 1st TA, and (c) by virtue of clause 10 of the 1st TA the relevant terms of the DMC (see paragraph 33(i)-(iii) above) were also binding on TP2 as tenant. But D2’s/TP1’s understanding of the 1st TA and Addendum was that D1 was responsible for all water supply/drainage pipes of Flat 1E, and he denied (i) D1 mentioned or discussed with him/TP2 about replacement of Flat 1E’s pipes/drains, (ii) he ever agreed to the Collateral Agreement and/or (iii) D1 was only responsible for repair and maintenance of the external sections of Flat 1E’s pipes/drains.
132. Discussion A key element in P’s case for establishing liability against D2/TP1 was his being a party to the Collateral Agreement. But given that D2/TP1 as TP2’s director/employee negotiated the 1st TA for and on behalf of TP2, I find it strange that at the very same 2 meetings at Broadview’s offices for negotiating the tenancy terms on behalf of TP2 he would also personally enter into the Collateral Agreement to carry out substantial works of pulling out and replacing all pipes/drains at Flat 1E at no small cost. It made no sense for D2/TP1 to do so personally when (a) TP2 would provide him with Flat 1E as his staff residence and pay the rent therefor, and (b) certain renovation works to render Flat 1E suitable for his needs were to be done at TP2’s cost. Even if one were to view the matter from D1’s perspective, she was then unaware of any leaking pipe/drain that required remedial action. In my view, there was little reason for the Collateral Agreement, which (if it existed) could easily have been drawn up together with the Addendum for signature at Broadview’s offices (but it was not reduced into writing at all). I reject the Collateral Agreement which I find to be D1’s belated/unconvincing attempt to pin liability on D2/TP1, and in my view D2/TP1 at all times only acted for TP2 in dealing with D1/Linda vis-a-vis the 1st TA and Addendum. Such finding also puts an end to P’s claim for contribution/indemnity against D2/TP1 based on the Collateral Agreement.
133. But I go further to reject the Collateral Agreement on the basis that it was inherently improbable. It was quite remarkable that D2/TP1 (as licensee) of TP2 (as tenant) under the 2-year 1st Tenancy would take on such costly/onerous task of replacing all pipes/drains of Flat 1E:
| (a) |
I disagree the monthly market rent of Flat 1E in the latter half of 2006 was $50,000. Although there were viewings of Flat 1E, there was no offer to rent for almost 6 months until TP2’s offer at $35,000/month came along. This, in my view, was clear indication that the asking rent was above market rate, and I find D1/TP2 would not have agreed to renovate Flat 1E and replace all pipes/drains to a tune of $300,000 when the agreed rent of $35,000/month was commensurate with the market rate. |
| (b) |
D1 knew there were 4 bathrooms/toilets and a kitchen in Flat 1E with substantial water supply/drainage systems. I find it strange even on D1’s own case that she would blithely accept D2’s/TP1’s suggestion of $300,000 as estimated cost of the proposed renovation/plumbing works without sight of any quotation and without segregating the value for plumbing works for Flat 1E in contra-distinction to the value for renovation works to suit D2’s/TP1’s needs. |
| (c) |
Since Linda had to fill out the 1st TA and prepare/type the Addendum at the 2nd meeting at Broadview’s offices (when the Collateral Agreement was allegedly made), there was no sensible reason why she was not also tasked to reduce the Collateral Agreement into writing for D1 and D2/TP1 to sign/confirm given the significant commitment of $300,000 for the renovation/plumbing works. |
| (d) |
D1’s subsequent conduct was inconsistent with the existence of the Collateral Agreement. D1 never (i) asked D2/TP1 to confirm all pipes/drains at Flat 1E had been replaced and/or to produce invoice/receipt to verify $300,000 had been spent so as to assure herself of the quality/scope of such works (and she could not satisfactorily explain why she would trust a near stranger like D2/TP1 especially when water leakage complaints were received shortly afterwards), (ii) raised with D2/TP1 about poor quality/ workmanship of the supposedly replaced pipes/drains when she received water leakage complaints from P (and instead went ahead on her own to carry out repair/remedial works), and (iii) asked TPs to maintain/repair the pipes/drains supposedly replaced pursuant to the Collateral Agreement and/or to reimburse her for the repair/remedial works she had done. |
| (e) |
The rent-free period of almost 3 months would not give commercial justification for D2/TP1 to incur the significant effort and cost of $300,000 to replace all pipes/drains and to renovate Flat 1E. I find the rent-free period was the result of commercial negotiations. After all, D2/TP1 for TP2 was bargaining from a position of strength as Flat 1E was on the market for almost half a year without a single offer to rent until D2/TP1 came along. |
134. As for responsibility to keep, maintain and repair pipes/drains under the 1st TA, the relevant provisions were clause 14 of the 1st TA and Addendum Bottom. D1 agreed (and I accept) that by the Addendum Bottom TP2 as tenant was responsible for “the maintenance, repair and or replacement of any of the electrical appliance furniture and fixtures in [Flat 1E]” being those items listed in the Addendum Top, but I disagree with D1’s suggestion that TP2 as tenant was also liable to maintain/repair all pipes/drains of Flat 1E except “the main drains, pipes” being external sections of the pipes/drains outside Flat 1E which were her responsibility. In my view, the express terms of clause 14 of the 1st TA and the Addendum Bottom did not support division of responsibility over the pipes/drains of Flat 1E on the basis of whether they were inside or outside Flat 1E. D1 did not explain why the very same pipe/drain would not be “main” inside Flat 1E but would become “main” after it exited the building envelop/fabric, especially when D1 and TP2 could have expressly spelled out such division between “outside” or “inside” Flat 1E in writing had they so agreed.
135. The wording of the 2nd sentence of the Addendum Bottom and the clause 14 of the 1st TA (less the Clause 14 Proviso) were quite similar. Given D1’s concession that she was responsible for external sections of the pipes/drains of Flat 1E after exiting the building envelop/fabric, I need say no more on this. As for the pipes/drains in the interior part of Flat 1E, insofar as they were concealed in the floor slabs and walls, I consider them to be structural parts for which D1 as landlord was responsible, and TP2 as tenant would not dig open and later patch up rented premises that he did not own to carry out plumbing maintenance/repairs. As for the internal parts of the pipes/drains of Flat 1E that were not embedded, D1 did not properly explain why such internal sections being the very same pipes/drains (a) with sections embedded in the structural parts of Flat 1E and/or (b) with external sections outside Flat 1E would not be regarded as main drains/pipes when they served the very same purpose of providing necessary water supply/evacuation for Flat 1E (ie water supply/drainage for the Kitchen Sink and other essential sanitary fitments such as washbasin, bathtub, shower cubicle and toilet bowl).
136. So what pipes/drains would not be regarded as “main” pipes/ drains? In my view, they would be the pipes/drains of appliances that required use of water but were installed by TP2 as tenant in the unfurnished Flat 1E (eg any washing machine, clothes dryer or dishwasher installed by the tenant). But this was precisely where the Addendum came into the picture. In my view, the Addendum Bottom came about because of the need for D1 as landlord and TP2 as tenant to demarcate duties/ responsibilities upon D1’s provision of appliances/fixtures listed in the Addendum Top for TP2’s use during the 1st Tenancy. I find the agreed sharing of duties/responsibilities was on the basis that (a) TP2 as tenant had to take the landlord’s appliances/fixtures in their “current condition” and be responsible for maintaining, repairing and/or even replacing such landlord’s appliances/fixtures, but (b) D1 had duty/responsibility to keep and maintain inter alia their drains, pipes and cables in proper state of repair. In drawing up the Addendum Bottom, Linda took the easy way by copying from clause 14 of the 1st TA (less the Clause 14 Proviso). Whilst such provision could have been more elegantly worded, I find the aforesaid intention was clear and agreed to by D1 and D2/TP1 for TP2. Thus, the drains/pipes/cables of the appliances/fixtures provided by D1 pursuant to the Addendum Top (eg air-conditioners, water heater and washing machine) fell within D1’s responsibility.
137. But I can envisage some pipes/drains that would fall outside D1’s duty/responsibility, eg had TP2 installed a dishwasher or fish tank, TP2 itself would have to be responsible for keeping, maintaining and repairing the associated drains, pipes and cables even though they would have been connected to Flat 1E’s water supply/drainage and electricity systems. But as (a) there was no dishwasher (as I find below) or fish tank at Flat 1E, (b) there was no leakage or irregularity visualised by D2/TP1 for non-concealed pipes/drains at Flat 1E, and (c) paucity of evidence to show leakage from the internal sections of Flat 1E’s waste water drainpipes before they exited outside Flat 1E via the external walls, I find TP2 was not in breach of the Addendum Bottom and/or TAs. There was also insufficient evidence to show the condition of Flat 1E’s drainpipes was due to unreasonable user and/or reasons other than fair wear and tear. In the circumstances, quite irrespective of the Clause 14 Proviso (which went to the matter of discharge of D1’s duty/responsibility by actually carrying out repairs in contra-distinction to the incidence of D1’s contractual duty/responsibility to maintain and repair Flat 1E’s pipes/ drains), TPs had no responsibility vis-à-vis D1 for the maintenance and repair of the waste water drainpipes (whether inside or outside) of Flat 1E.
XV. RENOVATIONS AT FLAT 1E
138. Parties’ stance Even though the rent-free period was from February to April 2007, D1 believed D2/TP1 had possession/use of Flat 1E since January 2007. But D2/TP1 thought it was in early February 2007 that he got the keys to Flat 1E for his contractor called Richard (“Richard”) to begin renovation works, which works were completed before expiry of the rent-free period, so he and his family moved into Flat 1E in early March 2007. D2/TP1 denied carrying out any plumbing works (save perhaps to change a water tap).
139. Discussion I find Richard commenced renovation works at Flat 1E in early February 2007,[131] so he probably had access to Flat 1E shortly before then to plan his work schedule. In my view, D2/TP1 probably took possession and had the keys to Flat 1E (which he passed to Richard) in late January 2007. Richard’s renovation works were completed in March 2007.
140. On 28 May 2007, D2/TP1 wrote to Linda inter alia as follows (D/10-11):
“- During the renovation work we have conducted at our own expenses last February 2007 before moving in, our contractor had informed you that there was some severe infiltration on [Flat GE]. You answered him at the time that the water leakage was very minor and that the owner of [Flat 1E] knew the situation and had solved the matter. It appears that you have made a false statement hence misleading us in our assessment of the flat condition.
- We have spent over 120 000 HKD to renovate [Flat 1E] from floor to ceiling. In spite of doing those renovation work with a qualified professional, we are experiencing already some water leakage in our own flat ([the 1E Master Bedroom] and maid quarter bathroom.) We cannot imagine that these problems were not known by [D1] 3 months before and we hereby reserve our right to claim later on from the owner any expenses incurred for any repair work if proven necessary.”
Richard was the “qualified professional” TPs engaged to renovate Flat 1E. TPs disclosed Richard’s work schedule (C2/167-168) together with 7 invoices (C2/169-181)[132] in the total sum of $106,620 that was eventually paid by TP2 (some by reimbursement to D2/TP1 for his advance payments in cash). D2/TP1 frankly confessed he rounded up the renovation costs by about $10,000 or so to arrive at $120,000 as adopted in the above letter so as to underline his point and to give Linda a rough idea of what was spent.
141. Richard’s schedule referred to inter alia the following materials and works, and on balance I accept D2’s/TP1’s evidence in relation thereto:
| (a) |
bath tiles ($200 and C2/167) – pursuant to Richard’s recommendation tiles were bought to decorate the shower cubicle of the 1E Helper Bathroom as it was visually unpleasant with multi-layer render/wood, but the tiles were not for re-tiling the floor/base of the shower cubicle upon replacement of the branch waste water drainpipe connected to the drain hole of the shower cubicle of the 1E Helper Bathroom (“Shower Cubicle Drainpipe”); |
| (b) |
plumbing ($100 and C2/167) – the “material” bought could have been a water tap, small pipe or collar as nothing much else could have been bought for $100; |
| (c) |
laminated wood flooring ($2,375 and C2/169) – the wood flooring, skirting and woodwork were for the living room and bedrooms, and not for the bathrooms; |
| (d) |
plumbing tile works for 1 day (C2/167) – such works were probably for change of tiles in (a) above and change of water tap in the kitchen/bathroom (that Richard being a Frenchman might describe in English as “plumbing tile works”), but such works did not concern building a shower cubicle in the 1E Master Bathroom, especially when Richard was a woodwork, painting and decoration specialist and not a qualified electrician/plumber. |
There were no separate invoices for (a)-(b) above because there was one for supply for miscellaneous and small/inexpensive items.
142. In my view, and also taking in account the discussion below about bathtub / shower cubicle, TPs/Richard did not carry out any plumbing works at the 1E Helper, 1E Master and/or 1E Guest Bathrooms, so D1’s allegations concerning the Improvement Works[133] and implied term of the Collateral Agreement[134] and her plea against TPs premised on D2/TP1 having actually completed the Improvement Works[135] all fell away.
143. In the Third Party Proceedings, D1 pleaded installation of a new shower tray in the 1E Master Bathroom in January/February 2007 as part of the Improvement Works. But D1 in evidence did not recall having asked D2/TP1 to change the bathtub in the 1E Master Bathroom to a shower cubicle with shower tray, and confessed such change might have been made by her at the request of the new tenant after D2/TP1 and his family moved out of Flat 1E in 2011. But D1 later testified she might not be the one who installed the shower cubicles in the 1E Master / Loke Jr Bathrooms. When pressed, D1 could not remember whether it was D2/TP1 or the new tenant who requested her to effect such changes (although at one point D1 claimed the new tenant did not ask for any renovations except to change the air-conditioner and to replace a small water heater in the 1E Kitchen, which works were done by the new tenant with cost deducted from the rent payable), and/or whether D2/TP1 carried out such replacement works. But since the FEHD carried out colour-dye water test (“Colour Test”) for a bathtub at the 1E Master Bathroom in October 2010 (C2/291) but did a Colour Test for a shower tray in the 1E Master Bathroom in 2013 (C2/299), D1’s allegation that a new shower tray was installed in the 1E Master Bathroom in 2007 was plainly wrong. I find the bathtubs in the 1E Master / 1E Guest Bathrooms were changed to shower cubicles at the request of the new tenant after determination of the Tenancies in mid-2011.
144. All along the 1E Helper Bathroom had a shower cubicle and no bathtub. D1 said such shower cubicle was not replaced when Flat 1E was let to TP2, but D2’s/TP1’s workmen installed new doors for the shower cubicle and moved the position of the showerhead. D1 then went on to give other accounts: (a) she said she did not pay attention to whether or not the shower tray was replaced, (b) she later said the shower cubicle (not a prefabricated unit) had a tiled base/floor that her contractor had to dig up in March/April 2007 for replacing the Shower Cubicle Drainpipe and to re-tile after such replacement, and (c) still later she said the shower cubicle (a prefabricated unit with built-in shower tray) was replaced by one with a tiled base/floor after her contractor carried out repairs at Flat 1E in March/April 2007. I find D1’s wavering evidence unreliable and inherently contradictory, and did not sit well with D2’s/TP1’s evidence that he did not notice any digging at Flat 1E by D1’s contractor. I prefer D2’s/TP1’s evidence that he (i) merely arranged for some cosmetic tiling around the base of the existing shower cubicle in the 1E Helper Bathroom, which accounted for the small sum spent on tiles and plumbing work in Richard’s work schedule, and (ii) carried out the Works and not the Improvement Works. Such finding was consistent with TPs’ subsequent conduct upon receipt of P’s water leakage complaints in 2007/2008 in urging D1 to take remedial action instead of carrying out repairs themselves, and also with D1’s assertion that “…… when there was a complaint, …… I was the landlord and I was under an obligation to fix it and repair it ……”
XVI. 2007
145. P’s claim P claimed that water leakages continued to damage the ceiling, floor and marble panels of the GE Master Bathroom, Old Cabinet (thus damaging suits/clothing inside) and GE Laundry Room.[136] According to “Floor Plan 2” in footnote 136 below, the affected Cabinet and Laundry Areas were the same as before (ie Locations X and Z), but the affected Bathroom Area expanded from Location U to Locations B. P (a) claimed to have observed water coming from the ceilings of the 3 Areas, (b) alleged the possible sources were the same as set out in paragraph 93(a)-(c) above, and (c) complained that Ds did not attempt to rectify the water leakage problem, so (i) her washing machine was water damaged, (ii) she had to wash towels used for soaking up leaked water every evening, (iii) short-circuit occurred on many evenings, and (iv) the GE Master Bathroom became so damaged she had to use the GE Guest Toilet instead.
146. Ds’ defence D1 did not admit P’s claim. D2/TP1 disagreed he caused any water leakage which problem allegedly began in November 2006 before he occupied Flat 1E, and he averred he helped P to contact D1 for repairs, but D1 did not take action or appropriate action.
147. Visit to Flat GE? P claimed that in January 2007 D2/TP1 was notified of water leakages from Flat 1E to Flat GE and was asked to resolve the water leakage problem, but even though D1, D2/TP1 and their estate agent (ie Linda) visited Flat GE to inspect the water damage, D2/TP1 did not take remedial action when he renovated Flat 1E. P elaborated as follows:
“…… one day when I walked past …… the outside of [Flat 1E] after work I saw that there was someone who was starting to do some works to the [1E Kitchen] and I went in to talk to that person carrying out the works[137] and I asked that person to check for water leakage because I said there should be water leakage somewhere. And on the following day that person [ie the worker P saw the day before at Flat 1E] bringing along someone I believe to be the tenant and the tenant bringing along an estate agent and someone who introduced herself to be Ms Wong together came into my place for an inspection.”
148. Ds disagreed they/Linda went to Flat GE in January 2007. I find when renovation works were being carried out at Flat 1E in early February 2007 P complained to Richard who went to Flat GE to have a look. Richard then told Linda (as D2/TP1 was abroad for the 1st 2 weeks of February 2007) to contact the owner of Flat 1E to deal with P’s complaint. Richard reported to D2/TP1 on his return to Hong Kong, so D2/TP1 (who did not have D1’s contact details then) reminded Linda to get D1 to fix the problem. There was no feedback from Linda whose attitude, I find, was to minimise/ignore the matter and to tell D2/TP1 not to worry (see D2/TP1’s letter dated 28 May 2007 to Linda in paragraph 151 below). I further find D2/TP1 did not ask Richard (whose scope of works did not include dealing with any water leakage problem) to check the pipes/drains of Flat 1E for irregularity/defect, but Richard took the initiative to report he did not notice any.
149. P by her letter dated 23 March 2007 to Selex Properties (D/4-5) complained (a) against mismanagement/negligence by the BMO in allowing D1 to let Flat 1E without telling the tenant (whom the BMO knew would carry out renovations at Flat 1E) “to repair the water pipe”, and (b) against D1 who sent her sister to Flat GE in December 2006 to look at the water damage but did not (i) remedy the water leakage or repair the damage to Flat GE and/or (ii) notify the tenant (who would renovate Flat 1E) to take action. But I find it strange for P to criticise Selex Properties and/or D1/Li for failing to tell D2/TP1 about the water leakages at Flat GE when on P’s own case she personally explained the water leakages to Ds, Linda and Richard when they visited Flat GE in January 2007. In my view, P’s letter dated 23 March 2007 served to undermine the alleged visit to Flat GE in January 2007 (and also the alleged visit to Flat GE by D1’s sister in December 2006), which showed P was quite ready even at an early stage to trivalise facts and embellish complaints to bolster her case that the water leakages at Flat GE came from Flat 1E.
150. I note P’s email dated 27 May 2008 to D2/TP1 (D/41) stated inter alia “you have taken part of the repairment before moving in and in addition, I have informed your worker of the leaking when he was working on the house before you moved in” (my emphasis). In my view, this could only have happened in February 2007 (and not January 2007 as P alleged) when Richard and his workers commenced renovation works at Flat 1E (see paragraph 139 above). Further, if P were to impress upon D2/TP1 his duty to stop the water leakages, P (on her case) would have emphasised she had personally told him about the water leakage problem in January 2007 and not that she had merely spoken to his “worker”. I am unable to see how P’s use of the word “repairment” suggested D2/TP1 caused some works to be done to the pipes/drains at Flat 1E before he moved in. This was just speculation, especially when P confessed she was unaware of D1’s allegations that D2/ TP1 was to replace all pipes/drains of Flat 1E before moving in and/or that such works were actually carried out by D2/TP1.
151. In D2’s/TP1’s letter to Linda on 28 May 2007 (D/10-11), he claimed that during the renovation works in February 2007 “our contractor had informed you that there was some severe infiltration on [Flat GE]. You answered him at the time that the water leakage was very minor and that the owner of [Flat 1E] knew the situation and had solved the matter. ……” (see paragraph 140 above). In my view, had there been a meeting at Flat GE in January 2007 as P alleged, D2/TP1 would have directly referred to such meeting personally attended by Linda who saw for herself Flat 1E’s condition, and would not have merely referred to what D2’s/TP1’s contractor (presumably Richard) told her.
152. There were no other documents to support P’s case that D1, D2/TP1, Linda and Richard together inspected Flat GE in January 2007. P’s evidence turned quite vague when pressed: whilst she maintained “there was a meeting, some people came to my place”, she confessed she could not tell who actually came apart from a foreigner (but she could not even say he was D2/TP1), and she could not even be sure the contractor who came along was the person with whom she spoke to the day before.
153. I disagree (a) P asked D2’s/TP1’s “worker” (presumably Richard) to check for water leakage from Flat 1E and/or (b) such “worker” (presumably Richard) came with D1, D2/TP1 and Linda to inspect Flat GE on the following day. Rather, I find it was in February 2007 that P walked past Flat 1E and saw workers there, so she went inside to tell Richard about water leakages at Flat GE, and Richard told Linda since D2/TP1 was out of town, but Linda made light of the matter and brushed it aside as seen in D2’s/TP1’s email dated 28 May 2007. In my view, Linda tried to minimise or even ignore the matter, and did not tell D1. After all, her role in effecting the tenancy transaction between D1 and TP2 was spent. I find P did not directly speak to Ds on water leakages in January 2007.
154. January/February 2007 D2/TP1 and his family moved into Flat 1E after the renovation works were completed in early March 2007, so there was no waste water from Flat 1E in January/February 2007.
155. March 2007 In March 2007, P took photographs of the false ceiling at Locations B (C1/54-55),[138] false ceiling at Location X,[139] ceiling above the Helper Bed at Location Z,[140] and ceiling above the Air Ducts at Location Y.[141] P also took photographs of (a) the Utility Cabinet at Location C (C1/52-53), and (b) the ceiling of the GE Helper Toilet at Location D (C1/58),[142] but they were not affected areas shown in “Floor Plan 2” in footnote 136 above and “Floor Plan 3” in footnote 145 below.
156. D2/TP1 claimed that soon after he and his family moved into Flat 1E, he started to receive water leakage complaints from P. He gave his telephone number and email address to P so they could liaise with each other on the water leakage problem.
157. Bathroom Area: Locations B P claimed in March 2007 water dripped from the ceiling between Locations TB and U near to the doorway between the Original and New BRm Areas, and she had to put towels/basin underneath to collect the leaked water. P wrote to inform D2/TP1 and his wife (D/2) she would be away on overseas business trip during 18-20 March 2007, to ask them not to use the 1E Helper Bathroom on those days, and to complain the water leakages had increased. D2/TP1 acceded to P’s request not to use the 1E Helper Bathroom on the specified days as he did not know whether the alleged water leakages were caused by use of the 1E Helper Bathroom or not.
158. Plainly, P held a firm conviction that the water leakages at the Bathroom Area came from the 1E Helper Bathroom, so she complained to the FEHD whose staff visited Flat 1E in/about March 2007. P was present and saw red colour-dye water being poured into the drain hole of the shower cubicle in the 1E Helper Bathroom (which P said was the only drain hole that received colour-dye water), and she collected red colour- dye water with a basin at the GE Master Bathroom. FEHD’s staff also checked the pipes/drains in the Sink Cabinet under the Kitchen Sink, but did not carry out any Colour Test there.
159. On 20 March 2007, the FEHD wrote to the owner/occupier of Flat 1E saying inter alia that “defective water pipe of [Flat 1E] was detected” without identifying its location. P conceded under cross- examination she did not know from where in Flat 1E the leaked water came from (except it should be directly above the GE Master Bathroom) and which pipe/drain of Flat 1E was defective. D2/TP1 said the defective water pipe referred to in the FEHD’s letter was not visible to him, and he saw no irregularity at Flat 1E. But given P’s evidence that red colour-dye water was only poured into the drain hole of the shower cubicle at the 1E Helper Bathroom and she collected red colour-dye water downstairs, Ho opined the defective drainpipe that the FEHD referred to was the Shower Cubicle Drainpipe. I agree with Ms Wong the defective drainpipe identified by the FEHD was probably the external section (ie outside the external wall of the 1E Helper Bathroom and on/above the Light Well Rooftop) of the Shower Cubicle Drainpipe (“External Shower Cubicle Drainpipe”). This was borne out by the Joint Report in which the Experts agreed that in early 2007 no drainpipes of the 1E Helper Bathroom ran inside Flat GE, and instead they passed through the external wall of such bathroom to above the Light Well Rooftop, so water that leaked from any defect in such drainpipe would discharge to the drain point on the Light Well Rooftop, and it “could also seep into the interior of the [Light Well Structure] via defective waterproofing system of the [Light Well Structure] in the [GE Master Bathroom]”. And I have already found the Light Well Rooftop was not impervious to water, and would allow infiltration from water sources on/above the Light Well Rooftop (see paragraphs 101-105 above).
160. In my view, the dilapidation/defect in the Shower Cubicle Drainpipe could not have been in its internal section. There was no plea/ evidence from P/Ho of floor infiltration due to leakage into the floor slab from the internal section of the Shower Cubicle Drainpipe within the 1E Helper Bathroom before it exited the external wall. No water ponding test was done by the FEHD in 2007, 2010 and 2013 when they carried out tests at 1E Helper Bathroom to ascertain the water source(s), and Ho did not even suggest such test (despite agreeing it was a common/appropriate test to check for possible floor infiltration). In my view, P did not even begin to show there was floor infiltration in the floor slab of the 1E Helper Bathroom, which by design was impermeable.
161. I pause to note that under the 1st TA and/or Addendum (and as Ms Wong conceded) TPs had no duty to repair the External Shower Cubicle Drainpipe (which duty rested with D1), and that D2/TP1 made prompt effort via Linda to notify D1 about P’s complaints. Anyway, on D1’s own case (but see my findings below), she assumed responsibility to replace the pipes/drains in the 1/E Helper Bathroom: (a) she claimed that shortly after D2/TP1 moved into Flat 1E Wong told her P complained of water leakages in the GE Master Bathroom so she asked her contractor to carry out inspection, and (b) D1’s contractor reported possible leakage of the Shower Cubicle Drainpipe and suggested to have it replaced so D1 instructed her contractor to do so. D1 said she only had particular recollection of her contractor digging up 2 areas of Flat 1E to deal with pipes/drains embedded in floor slabs / walls (because her contractor told her he might not be able to find tiles of the same colour for re-tiling after the plumbing works), one of which was the removal of the tiled floor/base of the shower cubicle in the 1E Helper Bathroom to replace the embedded internal section of the Shower Cubicle Drainpipe and then to re-tile the floor/base of the shower cubicle after such replacement.
162. I do not accept D1 instructed her contractor to replace the Shower Cubicle Drainpipe, and even if D1 did and some works were done by her contractor, I am not satisfied they resolved the defects in the External Shower Cubicle Drainpipe and/or the leakage problem at the Bathroom Area:
| (a) |
I have rejected the Collateral Agreement and Improvement Works, so D2/TP1 did not replace the Shower Cubicle Drainpipe in February/ March 2007. I have also found D1’s wavering evidence about what works were done in March 2007 concerning the shower cubicle at the 1E Helper Bathroom unreliable (see paragraph 144 above). I disagree that D1’s contractor replaced the internal section of the Shower Cubicle Drainpipe, especially as D2/TP1 did not notice any digging that would have been essential for such replacement. |
| (b) |
Even if some works were done in relation to the Shower Cubicle Drainpipe, D1 did not know exactly what was done and/or what part of such drainpipe was replaced. In particular, there was no evidence the External Shower Cubicle Drainpipe (upon exit from the external wall of the 1E Helper Bathroom onto the Light Well Rooftop) was repaired or replaced. |
| (c) |
D1 did not produce any invoice/receipt from her contractor who did not take any photograph to show what works were done. Although Li claimed he would not ask for invoice/receipt in a personal/familial setting, surely D1 would have asked for some document to evidence the works in face of P’s complaints and later when she learned about the results of the FEHD’s Colour Test. |
163. On 23 March 2007, P wrote to Selex Properties (D/4-5) to reiterate her earlier complaints, and to further complain against the BMO’s inaction and the estate agent’s (presumably Linda’s) failure to recognise the importance of her complaints. D1 claimed that in late March or early April 2007 she learned from Wong about the FEHD’s investigation of the water leakage problem at the GE Master Bathroom (ie D1 knew the FEHD found a defective pipe/drain but she did not know which one it was), so she had her contractor (a) replace all pipes/drains at the 1E Helper Bathroom (which works were completed latest by July 2007) and (b) contact P via Wong to ensure all P’s water leakage complaints were addressed. On 3 April 2007, D2/TP1 faxed to Linda (D/7) a copy of the FEHD’s letter dated 20 March 2007 to forward to D1. D1 was aware of the FEHD’s letter, but claimed that by the time she collected such letter from Wong she had already instructed her contractor to take action.
164. P wrote to tell D2/TP1 and his wife (D/6) she would be overseas during 5-9 April 2007 and to ask their “maid not to use her bathroom”. By such letter, P further complained as follows:
“Please note that there are INCREASINGLY amount and Dripping Points of water leakage. The ceiling is now severely damaged, with brown stain on the marble wall!
The amount of water is enough to soak at least five bath towels and 2 full buckets of water every day. I have to mop the floor, empty the two buckets and squeeze out five large bath towels and put them in the dryer every evening when I come home every evening after long day’s work.”
D1 had no recollection of receiving copy of such letter, but D2/TP1 did refrain from using the 1E Helper Bathroom when P was away.
165. For like reasons in paragraph 162 above applied mutatis mutandis, I do not accept D1’s assertion in paragraph 163(a) above about alleged remedial action taken. With various pipes/drains inside the 1E Helper Bathroom,[143] I find it quite improbable D1 would have instructed her contractor to remove/replace all visible/embedded parts of all pipes/drains at the 1E Helper Bathroom when (a) she did not even know which pipe(s)/drain(s) were defective, (b) such works would severely inconvenience D2/TP1 and his helper, and (c) D2/TP1 had no impression of being so inconvenienced and/or of D1’s contractor digging up at Flat 1E.
166. More importantly, there was no evidence that D1’s contractor had gone onto the Light Well Rooftop to repair/replace the external sections of the waste water drainpipes after they exited the external wall of the 1E Helper Bathroom onto such rooftop (including the External Shower Cubicle Drainpipe). The Experts agreed there was no proper access to the Rooftops (including the Light Well Rooftop) for routine cleaning, inspection, maintenance and/or repair since 2000 (which probably accounted for the dilapidation/defect in the External Shower Cubicle Drainpipe), and there was clear evidence of just 1 occasion when repairs were done for leakages (執漏) at the 3 Rooftops (天面(三個)) (including the Light Well Rooftop) by Loke Sr’s contractor in November/December 2007 (see paragraphs 227 and 228(a) below). In my view, leakages from the dilapidated/defective External Shower Cubicle Drainpipe were not remedied in March/April 2007, and waste water therefrom would seep through the defective Light Well Rooftop into the GE Master Bathroom. I note the Shower Cubicle Drainpipe exited the external wall of the 1E Helper Bathroom above the seam where the Light Well Rooftop met the parent structure (which was a weak point for water infiltration – see paragraph 103 above), which was close to the ceiling area between Locations TB and U below.
167. In my view, water leakages from the dilapidated/defective External Shower Cubicle Drainpipe would drip onto the Light Well Rooftop at/near such seam and the leaked water if not drained away would seep inside Flat GE via defects in such rooftop to appear as leakages at Locations B. But since the Light Well Rooftop was not impervious to water, other outdoor water sources in paragraph 101(a)-(b) above (except the replaced external freshwater supply pipe) that were not drained away could also seep inside Flat GE via such rooftop defects. In my view, P had not been able to exclude these other water sources in March/April 2007, especially when they probably played a role (albeit less significant than the defective external freshwater supply pipe that had since been replaced) in the watermarks observed in the Bathroom Area in mid-November 2006. Further, different timing as to use of water that went into the External Shower Cubicle Drainpipe and other waste water drainpipes on/above the Light Well Structure, the unpredictable timing of rainfall, and the extent/ size/location of defects/openings on the Light Well Rooftop would interact and account for variation in the timing/degree/volume of water leakages seen inside Flat GE. I also bear in mind that even though some leaked water or rainwater falling onto the Light Well Rooftop might be discharged via the drain point (if not covered by leaves/debris) and/or over the Light Well Kerb, water could also pond/accumulate on such rooftop due to poor drainage and leak into the GE Master Bathroom below (see paragraphs 358-360 below).
168. There was suggestion that waste water might also be sourced from the 1E Master Bathroom. I disagree, and find the water leakages seen at Locations B did not come from waste water drainpipes that served the 1E Master Bathroom:
| (a) |
This was not pleaded, and there was no record of any water leakage problem at the 1E Master Bathroom. |
| (b) |
Even though the 1E Helper Bathroom was the closest point for water supply to the 1E Master Bathroom, Ho accepted the water leakages at Flat GE did not come from any pressurised water supply pipe. |
| (c) |
Wu said (and I accept) the waste water drainpipe of the 1E Master Bathroom (which was part of the 1E Enclosed Area above a slope and not Flat GE) did not pass through the 1E Helper Bathroom, but rather it was concealed until it emerged as 1 out of 2 drainpipes at the west external wall of the 1E Helper Room (see photograph 7426 7c at B4/869) at the location marked “X” in Exhibit D1-1 and ran vertically down to a horizontal drainpipe (same as the one shown in Exhibit D1-6 – see paragraph 16(b)(iv) above) that eventually led to a manhole. I reject Ho’s bare assumption that a lot of new drainpipes went to “the nearest place” being the 1E Helper Bathroom when Ho did not even check how the pipes/drains ran. |
| (d) |
When the FEHD carried out Colour Test at Flat 1E in 2010, colour-dye water was poured into all drain outlets in the 1E Master Bathroom with no positive result. |
169. Laundry Area: Locations Z and Y P claimed the ceiling area between Locations Y and Z suffered from serious peeling of paintwork. In my view, there was no active water seepage there, and the concrete spalling and paint peeling indicated that previous water/moisture attack had dried up. Indeed, the photograph taken in July 2007 (B3/545) showed a lot of objects were still stored on the Helper Bed, which P never touched/ examined to see if they were wet. In my view, had there been active water leakages at Locations Y and Z, P would not have continued to store objects on the Helper Bed, especially when Ho said condensation droplets would fall down by gravity rather than flow across the ceiling surface. Further, P’s letter dated 23 March 2007 to Selex Properties (D/4) only complained of failure to deal with her water leakage complaints at Locations X and B without mention of Locations Z and Y (or even Location A) in the GE Laundry Room.
170. In my view, the damage seen at Locations Z and Y was continuation of the same damage seen in November 2006 (which cause(s) were unrelated to Flat 1E and which damage had not been repaired). By March 2007 the condensation damage was exacerbated by the passage of time and human occupation of Flat 1E with use of A/C. In my view, P/Ho failed to exclude other probable causes of the previous water/moisture attack discussed in paragraphs 113-117 above. There was some suggestion that D1 arranged for drainpipes at the 1E Laundry Room to be replaced, but I reject such evidence (see paragraphs 205(b) and 211 below). In any event, even if D1 did some works at the 1E Laundry Room, it did not mean previous water/moisture attack at Locations Z and Y came from drainpipes at the 1E Laundry Room. The starting point was the absence of water inlet/outlet there, so even if some pipes/drains in the 1E Laundry Room (although none was visualised) had been or were connected to the washing machine in the 1E Kitchen, they must have been defunct because the washing machine would not be able to draw/drain water from/to the 1E Laundry Room for operation. Anyway, as seen in paragraphs 172 and 188 below, the waste water drainpipe for the washing machine ran to the Sink Cabinet to exit the 1E Kitchen via the Kitchen Wall rather than to the 1E Laundry Room which had no water inlet/outlet. In my view, there was no relevant water source from Flat 1E to get to the ceiling of the GE Laundry Room (and/or to Location A).
171. P then tried to tie the ceiling condition at Locations Y and Z to Flat 1E by alleging a flooding incident at Flat 1E in 2007. But I start first with the location of the washing machine of Flat 1E, which I find to be in the 1E Kitchen.
172. Washing machine at Flat 1E D1 and D2/TP1 both said the washing machine was in the 1E Kitchen when they stayed at Flat 1E. Since D1 left the washing machine for TPs’ use during the Tenancies (see Addendum Top) and the washing machine was custom-fitted under the kitchen countertop between the kitchen cabinet on one side and tall utility cabinet on the other side, there was no reason for D2/TP1 to remove the washing machine to the 1E Laundry Room where there was no water inlet/ outlet. I find the freshwater supply pipe and waste water drainpipe of the washing machine ran at floor level inside the skirting of the kitchen cabinet to the drainage inside the Sink Cabinet, and the waste water drainpipe of the washing machine then exited the Kitchen Wall as the External Washing Machine Drainpipe as explained in paragraphs 16(b)(iv) and 170 above. D2/TP1 confirmed (and I accept) no washing was done in the 1E Laundry Room, which was in contra-distinction to the washing machine placed in the GE Laundry Room near Location A in Flat GE.
173. Alleged flooding incident P volunteered in evidence that there was an occasion in April 2007 or perhaps in mid-2007[144] when “…… all of a sudden the water came flowing down quickly and in quite large amount, making [her GE Laundry Room] floor full of water. [P] called [D2/TP1] …… and he told [her] he was scooping up water himself near the washing machine”. P claimed she went to Flat 1E and saw that for herself. In my view, P made this up to bolster her case in face of evidential difficulties in attaching liability to Ds over the ceiling condition at Locations Y and Z:
| (a) |
If the flooding was so serious/extensive that D2/TP1 himself had to scoop up water, P would have mentioned it in her correspondence, pleadings and/or witness statement. |
| (b) |
D2/TP1 denied this alleged incident, especially as (i) the washing machine was in the 1E Kitchen so water would not have spilled onto the floor of the 1E Laundry Room, and (ii) it was his wife and not him who would use the washing machine so he would hardly be mopping the floor and dealing with any spillage. |
| (c) |
In my view, it was improbable for the floor of the GE Laundry Room to be full of water as a result of spillage from the washing machine in Flat 1E. The washing machine was in the 1E Kitchen which floor was designed to be impermeable, and the Kitchen FD was near the Kitchen Sink and away from the 1E Laundry Room. In the absence of (i) water spillage in the 1E Laundry Room, (ii) evidence of defect in the waterproofing membrane of the 1E Kitchen and original verandah, and (iii) any water ponding test to establish ineffective waterproofing integrity of the floor slab of the 1E Laundry Room, I cannot see how water would leak from the floor slab of the 1E Kitchen to the ceiling of the GE Laundry Room and then drip down to the floor of the 1E Laundry Room to render it “full of water”. |
| (d) |
Wu and D2/TP1 confirmed no water supply inlet and/or water discharge outlet could be found in the 1E Laundry Room. I also accept that throughout the Tenancies D2/TP1 did not notice any irregularities that might have caused water leakages to Flat GE, and one would have expected spillage or flooding from the washing machine to be quite noticeable. |
174. I find on balance P failed to exclude the probable continuation in 2007 of other causes for damage to the ceilings of the GE Laundry Room in November 2006 as discussed above. I find P “failed to [prove] the water leakage happened in [the GE Helper Toilet and GE Laundry Room] were caused by Flat 1E” (see B8/1425).
175. Laundry Area: Location A P claimed that from time to time water leaked onto the rooftop (which P clarified in evidence to mean the ceiling) of the GE Laundry Room, dripped towards/down the Glazed Wall at Location A to the Wooden Shelf (that joined the Glazed Wall) leaving dark-stained water trails (C1-40), then flowed horizontally along the Wooden Shelf to drip onto and damage the control panel of the washing machine (which machine was positioned 2-3 inches away the Glazed Wall to allow space for its pipe/drain and protruded a little from under the Wooden Shelf).[145] On balance I accept water could drip from the Glazed Wall onto the washing machine in the manner alleged, but the key question was how the water/wetness came to be on the Glazed Wall. I also note P’s assertion that water leakages in the GE Laundry Room in early 2007 appeared to have ceased in November 2007.
176. P said water came from Flat 1E, which Ho explained was due to (a) overflow from the waste water drainpipe of the washing machine or (b) leakage from drainpipes onto the floor to seep through the floor finish and concrete floor slab to the ceiling of the GE Laundry Room and then to the Glazed Wall. I have considered and rejected (a) above as a possible water source (see paragraph 173 above). As for (b) above, Ho alleged it would not be difficult to obtain/drain water from/to the nearby 1E Helper Toilet, but this was mere speculation since Ho did not even check the position of the washing machine in Flat 1E and the location of its pipe/ drain when he inspected Flat 1E.
177. In my view, as (a) there was no water supply inlet or drain point at the 1E Laundry Room, (b) there was insufficient evidence of poor waterproofing integrity of the floor slab there, (c) the nearest appliance that regularly used water was the washing machine in the 1E Kitchen, and (d) the kitchen floor was by design impermeable, water leakages at Location A could not have come from Flat 1E. There was some suggestion that D1 arranged for the drainpipes at the 1E Laundry Room to be replaced, but I reject such evidence (see paragraphs 205(b) and 211 below).
178. Both Experts by the Joint Report opined the possible causes of water damage to the GE Laundry Room (including Location A at the Glazed Wall) were condensation, defective Glazed Wall and/or water intrusion from Flats 1C or above. Ho claimed it was unlikely for condensation to have caused the water damage at Location A as water droplets formed by condensation would fall down by gravity and not flow across the ceiling surface to drip down the Glazed Wall.
179. Interestingly, the photographs revealed the ceiling paintwork at Locations Z and Y was flaky and peeling (ie dried watermarks, C1/50-51) as was the ceiling of the 1E Helper Toilet (C1/58). Further, there was no suggestion that objects stored on the Helper Bed were wetted by water droplets that fell from the ceiling. But there were active water leakages at Location A. P suggested the photograph at C1/59 taken in March 2007 showed substantial water damage with active dripping and water stains on the Glazed Wall, but the same photograph annexed to the Ho Report was said to have been taken in July 2007 (B3/547). In my view, the latter was more likely in light of other photographs annexed to the Ho Report that showed similar condition at Location A of the Glazed Wall in July 2007. So whilst I accept there was active water dripping/stains at Location A of the Glazed Wall in March 2007, it should be less severe than shown in C1/59 or B3/547. In the end, Ho agreed there was spalled paintwork coming off the plaster at the ceiling that had dried, but there were no similar dried watermarks on the Glazed Wall.
180. In my view, the absence of significant wetness at the ceiling did not sit well with the suggested water route that the water from “upstairs” seeped through the floor slab to emerge at the ceiling of the GE Laundry Room (which showed dried watermarks) and flowed along the ceiling surface (which was said to be slanted at a gradient) towards the Glazed Wall (which showed active water stains). In my view, the likely cause for water damage at Location A was not from the ceiling but seepage through the defective Glazed Wall (which served as an external wall) made of brickwork / glazed glass block tiles and not reinforced concrete (see Renovation Plan).
181. In fact, this was not inconsistent with Ho’s evidence. As explained above, the ceiling at Location Z showed only dried watermarks, and Ho agreed the condition shown in the bottom photograph at C1/75 taken in August 2007 was similar to that shown in the photograph in C1/45 taken in November 2006, which if it was a bit worse might be due to passage of time and/or increased condensation upon human occupation of Flat 1E with use of A/C in/after March 2007. But Ho acknowledged the active water leakages seen at Location A in/about July/August 2007 made the water damage at the Laundry Area worse than it was 8-9 months ago, so he thought there was another water source apart from condensation, which in my view sat well with my conclusion that it was due to seepage through defects/cracks in the Glazed Wall (which P/Ho failed to exclude).
182. The letter dated 12 April 2007 by Selex Properties to D1 (see paragraph 184 below) did not record any complaint of water leakage at the Laundry Area. Photographs taken by Selex Properties on 4 April, 24 April and 14 June 2007 (C1/60-74) were of the Bathroom and Cabinet Areas but not of the Laundry Area. In my view, Selex Properties did not take any photograph of the Laundry Area in April-June 2007 because P had no complaint against Flat 1E in respect of water dripping on the Glazed Wall, and this also explained why there was no mention of such dripping in Selex Properties’ letters dated 12 and 26 April 2007 to D1 (see paragraphs 184 and 186 below). All along P had not been shy about her complaints and was even prone to exaggerate, so I find such reticence reflective of P’s understanding that the water damage at the 1E Laundry Room (whether active or dried) could not be laid at Flat 1E’s door. Further, as seen below, I find it probable the water leakages at Location A ceased upon repairs caused by Loke Sr in November/December 2007. But more of this below.
183. Before I turn to discuss the Cabinet Area, I find it useful to set the scene by referring to some correspondence in April 2007.
184. April 2007 It rained on 4 April 2007 (B1/55). Selex Properties’ staff inspected Flat GE on 4 April 2007 and took photographs (C1/60-62) of the Bathroom/Cabinet Areas[146] which were annotated with the following observations:
“Water was leaking from the ceiling of [the GE Master Bathroom].
Water was leaking from the ceiling of [the GE Master Bathroom].
Water was leaking from the ceiling and floor near the [1E Kitchen]. Part of the [Old Cabinet] was wetted.”
On 12 April 2007, Selex Properties wrote to D1 (D/8) inter alia as follows, and urged D1 to “arrange for immediate repair without further delay”:
“We would like to inform you that the owner of [Flat GE] reported that water leakage was found at the ceiling of [the GE Master Bathroom], ceiling and floor of the [Old Cabinet] next to the kitchen. The flat owner concerned has reported this case to the [FEHD]. After investigation by the [FEHD], it was suspected that water leakage might be originated from your flat.
Further to our site inspection at [Flat GE] on 4 April 2007, water leakage was still found. As we have observed, the situation is getting worse and the leaking area becomes more extensive. Photos were attached herewith for your easy reference.”
185. P suggested there were other earlier letters to D1 by Selex Properties that she discovered/disclosed for the Main Proceedings. But in fact there was none even though Selex Properties provided to Loke Sr “a full set of the previous correspondence …… regarding the water leakage incident at [Flat GE] for [his] retention”. In my view, this again underlined P’s tendency to exaggerate. On the other hand, D1 believed but was not sure she received Selex Properties’ letter dated 12 April 2007. She did not ask Li about it, and claimed by then Wong had already told her that the FEHD found some problem/defect and she had already asked her contractor to carry out repair/replacement works. I have already explained why I have reservations about D1’s assertions (see paragraphs 162 and 165-166 above).
186. It also rained on 24 April 2007 (B1/57). Selex Properties’ staff inspected Flat GE, took photographs (C1/63-68) and annotated them with the following observations:
“Water was leaking at the ceiling of [the GE Master Bathroom].[147]
The marble wall at [the GE Master Bathroom] was dampened.[148]
The cabinet at [the GE Master Bathroom] was dampened.[149]”
Selex Properties wrote to D1 on 26 April 2007 (D/9) inter alia as follows, and urged D1 to arrange for immediate repair without further delay:
“We refer to our previous letter dated 12 April 2007 in respect of water leakage found at [Flat GE]. Site inspection at [Flat GE] was conducted again on 25 April 2007. We found that water seepage still exists and becomes more extensive. False ceiling, marble wall and cabinet inside the [GE Master Bathroom] of [Flat GE] were dampened and damaged. Despite out previous reminder, the leaking problem has not been resolved and the condition became even worse. The nuisance that caused has become intolerable to the flat owner of [Flat GE]. Photos are attached for your easy reference.”
D1 thought she probably received such letter but without the photographs. She did not ask Li about such letter as she claimed to have already replaced the defective drainpipe in the 1E Helper Bathroom (which allegation I have rejected and I have further found that even if D1 did arrange some works to be done they were insufficient to resolve the leakages in the Bathroom Area).
187. Cabinet Area: Location X and Extension X P claimed (and I accept) there were water leakages at the ceiling area of Location X with some extension to the nearby ceiling area of the GE Dining Area (“Extension X”).[150] P also complained she had to (a) wash towels for soaking up leaked water every evening, and (b) work in the dark as short circuit occurred many evenings. The question was whether such water leakages came from the 1E Kitchen as alleged.
188. (a) Cabinet Area: inside at 1E Kitchen Wu said when he inspected Flat 1E, D1 and her contractor Poon were there. Wu opened the kitchen cabinet between the washing machine and Sink Cabinet and saw a bundle of pipes/drains at the floor skirting, but D1/Poon could not say clearly which pipes/drains had been replaced. Wu relied on his own inspection, but after checking such bundle of pipes/drains he could not differentiate them and/or work out their routes except to note (a) some had been disused (as it was a common but lazy practice amongst plumbers to disuse old pipes and connect new ones), and (b) the freshwater supply pipe and waste water drainpipe of the washing machine ran along such bundle of pipes/drains to the drainage under the Kitchen Sink in the Sink Cabinet.
189. But Ho did not even open such kitchen cabinet (including the Sink Cabinet) for inspection even though he knew the Sink Drainpipe and the waste water drainpipe for the washing machine[151] were there, and he did not touch/check the Sink Drainpipe or indeed any pipe/drain at all (except to note the Kitchen Sink did not display any irregularity). Ho only checked the layout of Flat 1E and took photographs/measurements, but was eventually constrained to acknowledge that as expert he should have investigated and identified any abnormality/problem with the drainpipes in the 1E Kitchen in light of P’s complaints that water leakages at the Cabinet Area came from the drainage system at the 1E Kitchen. Ho tried to brush away the paucity of his investigation (which in my view undermined the reliability/weight of his opinion) by saying he thought no tests were allowed, and “…… the pipe had already been replaced and repaired, so I wouldn’t be able to see its previous condition when it was still leaking …… So only visual inspection was done and …… no abnormality found in the kitchen on that day”. I reject Ho’s explanation. As explained in paragraph 112 above, there was no basis for Ho to think no test was allowed. But that said, inspection of the internal sections of the pipes/ drains inside the 1E Kitchen (not concealed in the floor slabs / walls) would not have revealed any irregularity (as confirmed by D2/TP1) or any defect in the external sections of the waste water drainpipes of the 1E Kitchen after they exited the Kitchen Wall.
190. I now turn to the Kitchen FD particularly mentioned by Ho. The Ho Report claimed Ho was not allowed to do any test on the Kitchen FD, but his visual inspection during the joint inspection on 10 July 2014 showed it “appeared to be filled with dust and debris”. Ho gave evidence that he lied face down to look into the Kitchen FD, and noticed “a little foreign object inside, not that the drain was clogged” which was “a little bit abnormal”, but he “couldn’t lift up anything to check the inside or to put something inside to try to see what was inside”. I find myself unable to place weight on such assertions by Ho, who did not explain why he inspected the floor drain in the Kitchen but not, say, the floor drain in the 1E Helper Bathroom, and/or why he did not at least shine a torch/light down the grating of the Kitchen FD to figure out what the “foreign object” was and its size (when the Ho Report suggested it was just dust and debris). I prefer Wu’s evidence that he found no irregularity (see Wu 1st Report at B5/741), and that he observed but did not impede Ho’s inspection of the 1E Kitchen, but noted Ho did not carry out any test and only turned on the water tap at the Kitchen Sink to check the sink drain holes. Wu said (and I agree) there was no dialogue between the Experts on any alleged defective/clogged Kitchen FD.
191. Ho went on to opine in the Ho Report that water from the clogged Kitchen FD Drainpipe might leak into the ceiling plenum inside the access panel at the false ceiling above Location X during wet cleaning / washing of the kitchen floor. But when pressed under cross-examination, Ho agreed that if the Kitchen FD Drainpipe had no defect, water poured down a clogged/blocked 1E Kitchen FD would not seep into the floor slab and instead would cause backflow and flooding of the 1E Kitchen. But there was no evidence of such backflow/flooding or of any defect in the waterproofing effectiveness of the 1E Kitchen floor slab (which by design was impermeable). Indeed, the Experts noted that when the false ceilings were removed during joint inspections of Flat GE in June 2014, there were no watermarks at the ceiling soffit, which suggested water did not seep through the 1E Kitchen floor slab. Further, no water ponding test and/or Colour Test were done by the FEHD or even proposed by Ho (whether in his initial test plan of 24 May 2014 or otherwise) for the 1E Kitchen floor, Kitchen Sink and/or Kitchen FD even though they were usual non- destructive tests. Ho again tried to say he thought he was only allowed visual inspection, but for reasons explained in paragraph 112 above I reject such allegation.
192. When pressed, Ho admitted that by 5 July 2014 he came around to think that a Colour Test would be useful, and during the Experts’ joint inspection of Flat 1E on 10 July 2014 he verbally suggested to Wu to have a Colour Test for the Kitchen FD. Wu denied this, and said Ho did not ask to perform any test. In considering such conflict in evidence, I note Ho did not even propose such test when D1’s solicitors enquired with P’s solicitors on 5 July 2014 about Ho’s test plan for the Experts’ joint inspection of Flat 1E, and D1’s solicitors even replied on 7 July 2014 to confirm Ho would abide by his earlier test plan of 24 May 2014 without any fresh proposal for any Colour Test. In the end, Ho was constrained to confess he did not tell P’s solicitors or ask them to make arrangements with D1 for a Colour Test for the Kitchen FD, and he again resorted to say (which I again reject for reasons I have explained) he thought he was prohibited from carrying out any test at Flat 1E. This, of course, did not sit well with his claim (which I reject) that at the Experts’ joint inspection on 10 July 2014 he proposed to Wu to have a Colour Test, and it also undermined his suggestion that the Kitchen FD was clogged.
193. Ho further relied on his MC survey[152] results to support his contention that the Kitchen FD was clogged/blocked. It was said the spot above the access panel at the false ceiling at Location X was particularly wet, which might be due to the defective/clogged Kitchen FD, but the surrounding areas near the GE Structures had no significant deviation from normal temperature. But Ho eventually agreed under cross-examination that the MC survey would not be accurate/reliable evidence of water leakages that happened years ago when Flat GE suffered from serious condensation after P left in early 2012. Further, when the false ceiling at Flat GE was partly removed on 24 June 2014, Wu noted “at least four (4) active leaking points …… could be detected at the area where was the place that [P] considered the leak was caused by a leaking draining pipe of [Flat 1E]” (ie where the Old Cabinet used to be in the Yard Structure) (B7/1202-1204), which in my view showed that moisture was allowed to replenish and persist in that area, and contributed to the high MC in Ho’s MC survey at/near that area. Indeed, Ho by the Joint Report accepted there was serious condensation at Flat GE when he carried out the MC survey, and he conceded in evidence the MC survey was not “100% reliable” after “a long time gap”, and could not prove the water source was from Flat 1E. Actually, during the Experts’ joint meetings for compilation of the Joint Report, Ho by his own hand/signature “agree not to include this evidence in my report [ie the MC survey recordings] for serious condensation exist on [Flat GE]” (B8/1525). I am not persuaded the MC survey had any probative value in proving that water leakages at Flat GE came from internal sections of the waste water drainpipes at Flat 1E. There was no need for me to go on to consider Infrascan’s scanning results as P abandoned reliance on the same.
194. On balance, I am not satisfied there was any clogging/ blockage of the Kitchen FD or anything abnormal about the Kitchen FD and/or the internal section of Kitchen FD Drainpipe inside the 1E Kitchen. I go further and find there was no sufficient evidence of defects in the internal sections of other waste water drainpipes (whether concealed or non-concealed) within the 1E Kitchen. The Sink Drainpipe was inside the Sink Cabinet and the waste water drainpipe of the washing machine ran along the floor skirting of the kitchen cabinet to the drainage inside the Sink Cabinet. To the extent the internal sections of these drainpipes were not embedded, say, in the Kitchen Wall as they exited the 1E Kitchen, D2/TP1 confirmed (and I accept) he checked them whenever he received complaints from P but did not visualise any irregularity. To the extent the internal sections of these drainpipes were embedded in the Kitchen Wall just as they passed outside onto the Yard Rooftop, I am not satisfied there was any leakage into/at the Kitchen Wall itself. After all, there was no evidence of dampness or water attack at the back of the Sink Cabinet and/or Kitchen Wall around the area where such drainpipes exited the 1E Kitchen. On the contrary, D2/TP1 said (and I accept) there was no irregularity.
195. (b) Cabinet Area: outside at Yard Structure I now turn to the Yard Structure and the external sections of the waste water drainpipes of the 1E Kitchen. Taking a bird’s eye view of the Yard Rooftop (see photographs 0644 9e (B5/874) and 0618 9j (B5/875 and Exhibit P5)), the glass skylights were erected close to the bedrooms at the rear of Flat 1E on a portion of the Yard Rooftop at a higher level (“High Level”) than the rest of the Yard Rooftop up to the Atrium and/or boundary with Block A (“Low Level”) (B4/630). Laid across the Yard Rooftop on the Low Level were (a) a row of 3 A/C outdoor units, (b) cables/conduits (presumably connecting the A/C outdoor units to indoor A/C equipment) and other pipes/drains (collectively, “Rooftop Lines”)[153] (B/874-875), and (c) a surface channel (“Surface Channel”) with a drain hole in the middle (see Renovation Plan). Other drainpipes and the Common Vertical Drainpipe passed through the Yard Rooftop at the Kitchen/Yard Corner to become the Internalised Drainpipes that were concealed and masked up by the Yard Structure. There were also some cut/disconnected vertical pipes/drains on the Yard Rooftop abandoned by the upper floor flat units.
196. Although Ho claimed to have visually inspected the area shown in Exhibit P5 (ie where pipes/drains exited the external Kitchen Wall at the Kitchen/Yard Corner and where the Rooftop Lines on the Low Level entered/exited the building structure/fabric at the spot close to the Kitchen Wall where the High and Low Levels met, “P5 Area”[154]) from 3 vantage points, I am not satisfied he could properly visualise the P5 Area:
| (a) |
viewed from Flat GE underneath the glass skylights – given the configuration of the skylights with metal frames, I find it improbable the P5 Area could be sighted with any clarity from within Flat GE; |
| (b) |
viewed from a window of a bedroom at the rear of Flat 1E – Ho at first claimed he could visualise/trace the Rooftop Lines from such vantage point but eventually confessed he could not do so, and I further doubt whether he could see the P5 Area with any clarity given the presence of the planter box at such window (“Planter Box”), the A/C outdoor unit affixed to the external wall below such window, and the skylights installed on the High Level; |
| (c) |
viewed from the Kitchen Window – Ho stood in front of the Kitchen Sink placed directly against such window, so he could hardly observe the P5 Area at the external Kitchen Wall directly underneath such window close to floor level. |
But Wu actually went onto the Yard Rooftop to view the Surface Channel, Rooftop Lines and P5 Area, and to correlate the external sections of the pipes/drains to the drainage arrangements inside the 1E Kitchen, and he reviewed the photographs “to differentiate all the pipes”, so I prefer Wu’s evidence over Ho’s in this respect (see paragraph 16(b) above).
197. As to the external sections of Flat 1E’s pipes/drains on/above the Yard Structure, I start with 2 photographs which P claimed were taken in February 2008 by Loke Sr’s contractor who made some written annotations. I will deal with how P came to receive such annotated photographs below, but for the present purpose I will focus on the contents of such photographs.
198. The top photograph on C1/79-80 (“Top Photo”) showed the ceiling soffit inside the vertical access panel of the false ceiling above the New Cabinet Extension referred to in paragraph 229 below at Location X, which (as Ho confirmed) was formerly part of the open Yard with external walls but had since been enclosed as part of the Yard Structure within Flat GE. Some pipes/drains were seen inside such ceiling soffit,[155] and Loke Sr’s contractor told P they served the upper floor(s) without clarifying which floor(s) (but which in my view included the Internalised Drainpipes). In the Top Photo, Loke Sr’s contractor pointed to a part at the seam of such ceiling soffit with an arrow, and described it as “簷蓬邊滲漏位(室內)” (ie leakage area by the edge of the canopy (indoor)). P claimed she did not ask Loke Sr’s contractor to repair such leakage, but she did not know whether Loke Sr did so or not.
199. As for the Bottom Photo in C1/79-80, both Experts agreed the pipes/drains shown therein (including pipes “A” and “B” marked in C1/80 as “懷疑滲漏水喉 [A/B]”) were at the external Kitchen Wall above the Yard Rooftop (which was also evident from the annotation for such photograph of “簷篷邊滲漏位(室外天面)” with arrow pointing to the seam of the Yard Rooftop below pipes “A” and “B”) (“Bottom Photo Area”). I refer to footnotes 13, 120 and 154 above, and note the Bottom Photo Area was the same as the P5 Area at the Kitchen/Yard Corner that was above the ceiling soffit shown in the Top Photo. In the Bottom Photo, an arrow pointed to a pipe marked “A” as “去水喉 …… (地台入牆喉)”, and an arrow pointed to another pipe marked “B” as “接駁星盤至洗衣機小喉 …… (入牆位)”.
200. Ho conjectured that (a) “去水喉 …… (地台入牆喉)” marked “A” in the Bottom Photo should be the External Kitchen FD Drainpipe on/above the Yard Rooftop after exiting the Kitchen Wall, and (b) “接駁星盤至洗衣機小喉 …… (入牆位)” marked “B” in the Bottom Photo was a water supply pipe for the Kitchen Sink and washing machine in Flat 1E. I note with interest that whilst Loke Sr’s contractor gave unqualified observations in the Top/Bottom Photos in respect of leakages at the seams where the Yard Structure on the outside (ie the Yard Rooftop) and the inside (ie the ceiling soffit) met the parent structure (which meant water leaked through the Yard Rooftop at the Kitchen/Yard Corner into the Yard Structure inside Flat GE), he was less firm in his other observations as he only “suspected” there might be leakages from “去水喉 …… (地台入牆喉)” and “接駁星盤至洗衣機小喉 …… (入牆位)”. This was unsurprising since the Bottom Photo showed Loke Sr’s contractor (unlike Wu who went directly onto the Yard Rooftop) only had a limited view of the Bottom Photo Area, and there was also no evidence Loke Sr’s contractor had the benefit (as Wu had) of inspecting the drainage under the Sink Cabinet to correlate such arrangements with the pipes/drains at the external Kitchen Wall (ie P’s contractor only visited Flat 1E in May 2008 – see paragraph 248 below). It is therefore useful to now turn to the Experts’ evidence in relation to Exhibit P5 to evaluate the “suspicion” by Loke Sr’s contractor about pipes “A” and “B” in the Bottom Photo:
| (a) |
Pipe “A”
The Experts were uncertain whether pipe “A” in the Bottom Photo was the same as horizontal pipe “A” in Exhibit P5 although Ho conjectured it might be. But as explained in paragraphs 16(b)(iii) and 196 above, I find myself unable to place weight on Ho’s conjecture. Rather, I prefer Wu’s evidence that pipe “A” in Exhibit P5 was the External Sink Drainpipe (see paragraph 16(b)(iii) above). This would mean either (i) pipe “A” in Exhibit P5 (External Sink Drainpipe) did not correlate to pipe “A” of the Bottom Photo (suspected by Ho to be the External Kitchen FD Drainpipe), or (ii) if they did correlate then the suspicion by Loke Sr’s contractor and/or Ho that pipe “A” of the Bottom Photo was the External Kitchen FD Drainpipe would be mistaken. In my view, (i) above was unlikely given the correlation of the Bottom Photo Area to the P5 Area and the distinct similarity of the vertical part of pipe “A” in the Bottom Photo and pipe “A” in Exhibit P5. On balance, I accept (ii) above and further find it was the dilapidated/defective External Sink Drainpipe that leaked and caused “簷篷邊滲漏位(室外天面)” at the Kitchen/Yard Corner that seeped down to emerge as “簷蓬邊滲漏位(室內)”, which was also borne out and supported by (1) the Prune Juice Incident referred to in paragraph 249(a) below, and (2) P’s allegations that the water leakages correlated to dishwashing at the 1E Kitchen and that soapy water seeped through and was collected downstairs at the Cabinet Area (see paragraph 221(d) below) (but I will deal with other possible water sources in paragraph 202 below). |
| (b) |
Pipe “B”
Ho guessed the small horizontal pipe marked “B” in Exhibit P5 was a galvanised steel water supply pipe that was the same as the horizontal pipe “B” shown in the Bottom Photo. Ho said water pressure in such water supply pipe might cause minor burst and hence leakage at a joint. But as explained in paragraph 196 above, I find myself unable to place weight on Ho’s guess when Wu (who did more detailed investigation) was unable to identity what pipe “B” was or where it was connected. Moreover, I doubt whether pipe “B” in the Bottom Photo was leaking (as Loke Jr’s contractor surmised) and/or whether it had any relevance to water leakages at the Cabinet Area given that (i) the Experts agreed that water leakages at Flat GE did not come from pressurised water supply pipes, and (ii) leakage from a freshwater supply pipe could not explain the Prune Juice Incident and the collection of soapy water at the Cabinet Area. |
201. For completeness, I find there was no or no sufficient evidence of leakages of the external sections of pipes “C” to “G” shown in Exhibit P5:
| (a) |
Pipe “C” – I have explained in paragraph 16(b)(v) above that pipe “C” was the Kitchen FD Drainpipe. I am not satisfied there was any defect or leakage from such drainpipe, which defect or leakage (if any) would not sit well with the Prune Juice Incident and P’s allegation that the water leakages at the Cabinet Area correlated to dishwashing at the 1E Kitchen. |
| (b) |
Pipe “D” – Ho said the horizontal pipe “D” was a steel water supply pipe covered by sprayed cement material. But I am unable to see the relevance of such pipe given that (i) the Experts agreed the water leakages at Flat GE were not sourced from pressurised water supply pipes, (ii) Ho could not see where pipe “D” went after passing through the Yard Rooftop, and (iii) Wu said pipe “D” was in fact a pipe for supply of town gas. |
| (c) |
Pipe “E” – Ho had no idea what pipe “E” was, where it went or what flat unit it served, and I prefer Wu’s evidence it was part of the drainage system for collecting condensation water from A/C window units of, say, Blocks B and E, and any leakage/defect of such pipe would not sit well with the Prune Juice Incident and P’s allegation that the water leakages at the Cabinet Area correlated to dishwashing at the 1E Kitchen. |
| (d) |
Pipe “F” – I have also explained in paragraph 16(b)(iv) above that pipe “F” was the External Washing Machine Drainpipe. Pipe “F” did not exist in 2007 and was installed between February 2008 (Bottom Photo) and September 2013 (Exhibit P5), and there was paucity of evidence to show where the External Washing Machine Drainpipe was in 2007, and whether or not it was defective and/or leaking. |
| (e) |
Pipe “G” – Wu had no idea what the rusty horizontal open-ended pipe “G” was except it was probably an abandoned drainpipe on the Yard Rooftop. |
202. The Experts also agreed a possible cause of water leakages at the Cabinet Area was the alteration of pipes/drains due to erection of the Yard Structure: (a) Ho agreed any leakage from any of the pipes/drains in the P5 Area would fall onto the Yard Rooftop which if defective would allow water to seep through into the Yard Structure inside Flat GE, and (b) Wu also agreed any leakage from any drainpipe (whichever flat unit it served) onto the Yard Rooftop would contribute to leakage into Flat GE if such rooftop was not impervious to water. In this respect, I refer to my earlier findings in paragraphs 17 and 95-99 above that the Yard Rooftop had defects and was not impervious to water, and in paragraph 200(a) above that the dilapidated/defective External Sink Drainpipe leaked waste water onto and through defects / weak points of the Yard Rooftop (particularly at the seam where it met the parent structure at the Kitchen/Yard Corner, ie the Bottom Photo Area / P5 Area) into the Cabinet Area at Location X / Extension X. Further, I refer to paragraphs 97-99 above in which I have also found the water leakages in November 2006 at the Cabinet Area came from rainwater and/or other water sources in paragraph 97(a)-(c) above. With no evidence to show abatement of these water sources, I find P failed to exclude their continuation as contributing water sources even as at March/April 2007. After all, as seen in paragraph 228(a) below, Loke Sr caused repairs to be made to the Yard Rooftop in November/December 2007, but the Top/Bottom Photos taken in February 2008 showed such works at the Yard Rooftop were neither sufficient nor satisfactory, and there were still defects that allowed leakages from the External Sink Drainpipe, other water sources in paragraph 97(a)-(c) above and rainwater to penetrate into Flat GE.
203. D1’s alleged works But Mr Fong submitted the waste water drainpipe of the washing machine at Flat 1E was also defective and leaking otherwise D1 would not have to carry out substantial repairs to such drainpipe or to install pipe “F” in Exhibit P5 between February 2008 and September 2003 and the White Pipe between 16 September 2013 and 10 July 2014 (see paragraph 16(b)(iv) above). In support, Mr Fong referred to an email dated 30 August 2013 from “Rainbow” (who appeared to be staff of P’s former expert) to P’s former solicitors following site inspections which stated that “from the AP’s point of view and common building structure, the causes of the damp patches at [Flat GE] were most likely due to the leakage of drain pipes at [Flat 1E]”. Mr Fong reminded that the White Pipe was installed after such email, and suggested D1 had not been candid about the full extent of repairs done for the pipes/drains of Flat 1E. But the installation of the White Pipe in 2013-2014 was outside P’s claim period, and I see no basis to criticise D1 for not dealing with the White Pipe in her evidence. Further, there was no evidence before this court as to who installed the White Pipe and why it was installed, especially when the original route of the External Washing Machine Drainpipe was modified not to benefit Flat 1E (as more pipe bends/joints were created by such modification) but to accommodate Flat GE upon erection of the Yard Structure that expanded Flat GE’s floor area. Further, the aforesaid email of 30 August 2013 was not inconsistent with defect/leakage of the External Sink Drainpipe as I have found.
204. D1 gave evidence that at the time she just went ahead to “fix those problems …… because I was living upstairs and they were downstairs …… but, in fact, I really don’t know the real cause of the problem”, so whenever Wong told her there was a problem/defect, she “would ask the contractor to fix it or replace it” or to replace all pipes/ drains to ensure there would be no further leakage, but “whether actually that part or those parts was or were defective, I have no idea”. D1 claimed sometimes no irregularity or leakage was found with no works done, and sometimes works were done to fix or forestall a problem.
205. D1 claimed that in 2007 Wong told her about another water leakage complaint in relation to the 1E Kitchen, so she asked her contractor to replace and re-install the pipes/drains at the 1E Kitchen and 1E Laundry Room to ensure no water leakage would occur by cutting off the concealed pipes and installing new ones to pass through cupboards/ cabinets for easy detection of any future leakage, and her contractor repaired and replaced the pipes/drains from the Kitchen Sink to the washing machine and also the pipework connecting the washing machine to the 1E Laundry Room, which works were carried out on 2 separate occasions:
| (a) |
The 1st works were carried out in the 1E Kitchen in early 2007 when D1’s contractor replaced the drainpipe from the washing machine (laid behind the floor skirting of the kitchen cabinet) to the drainage system under the Kitchen Sink with a new drainpipe along the same route. D2/TP1 had clear memory of Li’s contractor pulling out such skirting and replacing the drainpipe of the washing machine there, but he could not recall when this was done. |
| (b) |
The 2nd works were carried out in the 1E Kitchen and 1E Laundry Room to replace drainpipes which (according to D1’s contractor) ran from the washing machine in the 1E Kitchen through the tall utility cabinet next to it to the 1E Laundry Room, but D1 was not sure of the exact route, eg whether any section of such drainpipe was concealed by wall finishes. D1 said such works were completed by July 2007. |
| (c) |
D1 claimed there were further works in early 2008 of which she had no clear memory, but more of this later in paragraph 241 below. |
206. D1 further claimed that after the drainpipes in the 1E Kitchen and 1E Laundry Room were replaced, in August/September 2007 she/Li instructed their contractor to carry out remedial works to all areas in Flat GE allegedly damaged by water leakages from Flat 1E (see paragraphs 222-225 below), and it was discovered that:
| (a) |
if any water leakage to the Bathroom Area was caused or contributed by Flat 1E, it was due to a defective pipe in the 1E Guest Bathroom that in turn was caused by renovations done by TPs in February 2007; |
| (b) |
if there were water leakages at the Cabinet/Bathroom Areas, they were not caused by any defective pipe of Flat 1E but by defective waterproofing of the Yard / Light Well Structures which were UBWs; |
| (c) |
in any event D1/Li fully addressed the alleged water leakages from Flat 1E, and fully remedied all damage to Flat GE as a result. |
207. For (a) above, I disagree the water leakages in the Bathroom Area was caused by a defective pipe in the 1E Guest Bathroom. If D1 was referring to the 06/11 Incident, I refer to the discussion in paragraphs 293-307 below. I have found D1/TP2 did not enter into the Collateral Agreement and/or carry out the Improvement Works / plumbing works in February/March 2007, so D2/TP1 and/or his contractor could not have damaged and rendered defective any pipe in the 1E Guest Bathroom during such works.
208. Further, as seen in paragraphs 222-225 below, D1’s contractor did not carry out remedial works for Flat GE because P / Loke Sr were skeptical of his workmanship and declined to have him re-paint the affected ceilings/walls of Flat GE for them. Given this refusal and further given P / Loke Sr rebuffed D1’s/Li’s willingness to replace the Old Cabinet for them (see paragraph 224 below), I am unconvinced all water leakages from Flat 1E had been resolved and/or all damage to Flat GE had been remedied as alleged in (c) above.
209. For (b) above, whilst I accept D1 probably sent her contractor to Flat 1E in face of mounting water leakage complaints, I am not satisfied D1 instructed her contractor to carry out and/or her contractor carried out all of the works as alleged, and I am unconvinced D1 had ever asked her contractor to check and/or her contractor ever checked the external waste water drainpipes on/above the Yard Rooftop that served Flat 1E. Indeed, D1’s overall credibility was weakened by her insistence that all along she believed D2/TP1 had already replaced the pipes/drains in the 1E Kitchen pursuant to the Collateral Agreement, which allegation I have rejected.
210. As regards the 1st works, I find D1’s contractor did replace the drainpipe behind the skirting of the kitchen cabinet that connected the washing machine to the drainage under the Kitchen Sink:
| (a) |
This was corroborated by D2/TP1 who had clear memory of this and whose evidence I accept. |
| (b) |
The fact such replacement drainpipe was laid behind the skirting of the kitchen cabinet and not embedded in any wall finish or floor slab was consistent with (i) D2’s/TP1’s evidence that no digging was done at Flat 1E, and (ii) D1’s evidence that contractor only charged modest labour cost of $500 and overall cost of $1,000 to $3,000. |
| (c) |
I accept D1 as a layman did not think too much about her legal liability (if any) vis-à-vis P except she wished to be relieved of the tedium of having to deal with P’s water leakage complaints, so she was prepared to have her contractor carry out minor works to the non-concealed drainpipes (cutting off old drainpipe and connecting new drainpipe of the washing machine) to forestall argument and to pacify P. |
| (d) |
The finding that the replaced drainpipe for the washing machine ran behind the floor skirting of the kitchen cabinet also sat well with Wu’s testimony that there was a bundle of pipes/drains at the base of the kitchen cabinet some of which were old/disused. Wu said it was a lazy but common practice amongst plumbers to simply cut off an old drainpipe and connect a new one. |
| (e) |
Given D1’s attitude as found in (c) above, it did not follow repairs were done only when a drainpipe was actually leaking. I find on balance D1 responded to P’s further complaint by simply replacing the internal section of the waste water drainpipe of the washing machine (which was easily accessible) without bothering whether there was actual leakage. This was why D2/TP1 said such replacement did not make sense to him. Had the original drainpipe of the washing machine behind the skirting of the kitchen cabinet been leaking, there would have been flooding in the 1E Kitchen, the cabinet skirting would have been dampened, and there would have been water on the kitchen floor whenever the washing machine was in use (all of which did not happen). |
211. But I am not satisfied D1 caused her contractor to carry out the 2nd works to replace all other pipes/drains in the 1E Kitchen and 1E Laundry Room:
| (a) |
D1 was quite unable to articulate what pipes/drains were actually replaced. Although there were embedded pipes/drains, eg the Sink Drainpipe that had to pass through the Kitchen Wall and/or the Kitchen FD Drainpipe that was concealed in the floor slab, they were not replaced since D2/TP1 confirmed (and I accept) D1’s contractor did not dig up any part of Flat 1E. |
| (b) |
Save for the internal section of the drainpipe for the washing machine, D1 did not explain what other “concealed pipe” was cut off. Since no water inlet/outlet and no pipe/drain were visualised in the 1E Laundry Room, and no washing was done there, any “concealed pipe” in the 1E Laundry Room would have been disused/defunct. The washing machine (which was in the 1E Kitchen all along) could not have obtained freshwater supply and/or drained away waste water by pipes/ drains from/to the 1E Laundry Room. There was no sensible or practical reason to replace defunct pipes/drains (if any) which would not have leaked water. |
| (c) |
Even if there were active “concealed pipes” in the 1E Laundry Room (which I disagree), I find they were not replaced. D1 claimed her instructions to her contractor were to cut off the “concealed pipes” and install new ones to pass through the cupboards/cabinets for easy detection of future water leakage. If there was such alleged replacement drainpipe connecting the washing machine in the 1E Kitchen as an appliance that required use of water to the 1E Laundry Room, it would have to pass through the tall utility cabinet in the 1E Kitchen and wooden partition that separated the 1E Kitchen and 1E Laundry Room. No such drainpipe (which was supposed to be installed for easy detection) was visualised by D2/TP1 and/or the Experts. |
| (d) |
The suggested exercise of replacing all pipes/drains in the 1E Kitchen and 1E Laundry Room would have been a substantial exercise, which was inconsistent with the modest charges by D1’s contractor. In my view, D2/TP1 would not have forgotten the significant inconvenience of being unable to use the 1E Kitchen when such works were carried out, but he had no such recollection, and in fact he only recalled the replacement of the waste water drainpipe of the washing machine. |
212. Mr Fong submitted it would have been too much of a coincidence for cessation of the water leakages at the GE Laundry Room to have nothing to do with D1’s repair works. I disagree in view of my findings above. In any event, the water issue at Location A of the GE Laundry Room was not resolved even by July 2007 when D1 claimed the 2nd works were completed. The photographs at C1/59 and B3/547 (taken in July 2007) showed there were still active water dripping/stains at Location A on the Glazed Wall, which condition worsened in August 2007 (ie it was still damp/wet with dark patches of mould growth) as seen in photographs taken by Selex Properties on 22 August 2007 (C1/75-76). Anyway, the 1st works done and the 2nd works allegedly done (which I have rejected) at the 1E Kitchen could/did not cure the dilapidated/defective External Sink Drainpipe. I also disagree further extensive pipe replacement works were done at Flat 1E in early 2008 (see paragraph 241 below).
213. May 2007 According to D2’s/TP1’s fax dated 28 May 2007 to Linda (D/10-11), P informed D2/TP1 that electricity went off on 18 May 2007, and “last Sunday morning” Loke Sr told him the ceiling of the GE Master Bathroom collapsed because of months of water leaking to Flat GE. D2/TP1 went on to say in such fax that “the damages caused by the water obviously coming from [Flat 1E] and leaking to [Flat GE] has worsened in the recent weeks”, and it was critical for Linda to inform (and forward his letter to) D1 for immediate necessary action. D2/TP1 claimed he was then “seeking legal advice to solve this matter at the expenses of the landlord of [Flat 1E]”. D1 said Linda did not pass such letter to her, which I find was consistent with her stance of minimising/ignoring the matter.
214. June-August 2007 Between June and August 2007, P made several complaints to Selex Properties who again sent staff to Flat GE to take photographs on 14 June 2007 (C1/69-74) and 22 August 2007 (C1/75-78). Selex Properties made the following observations on the photographs taken on 14 June 2007:
“Water was leaking from the ceiling of [the GE Master Bathroom]. The gypsum board at the toilet was damaged and the electricity system at the toilet was dampened and malfunction.[156]
Water was leaking from the ceiling of [the GE Master Bathroom].[157]
The cabinet at [the GE Master Bathroom] was dampened.[158]
The marble wall at [the GE Master Bathroom] was dampened.[159]
The marble floor at [the GE Master Bathroom] was dampened.[160]”
and on photographs taken on 22 August 2007:
“Watermarks were found at the ceiling of [GE Laundry Room][161]
Water was leaking from the ceiling near the [GE Kitchen]. After investigation by [FEHD], it was suspected that water leakage was originated from [1E Kitchen].[162]
Water test was conducted by [FEHD] on 22 August 2007. It was suspected that water leakage was originated from the [1E Kitchen].”
As noted above, Selex Properties only noticed watermarks and not active water leakages in the 1E Laundry Room.
215. By this time, P had dismantled/removed the Old Cabinet (C1/77-78). I refer to footnote 121 above and note that as at November 2007 (B3/549) the wall/floor of the Cabinet Wall at Location X was water damaged but the rest of the Cabinet Wall remained undamaged, which suggested that water seeped down via the Yard Rooftop at the Kitchen/ Yard Corner where the Internalised Drainpipes were concealed by the Yard Structure (ie near the Bottom Photo Area / P5 Area) into the ceiling soffit at Location X, then down the back of the Old Cabinet to the floor, which was consistent with my conclusion that the External Sink Drainpipe was dilapidated/defective and leaking waste water onto/through the Yard Rooftop to the Cabinet Area below. But this, of course, would not exclude other water sources, eg rainwater and/or other water sources in paragraph 97(a)-(c) above.
216. Selex Properties’ annotation of the photograph taken on 22 August 2007 (C1/78) suggested the FEHD conducted water test that very day with suspicion of water leakage originating from the 1E Kitchen. But there was no mention of this in P’s witness statement and/or other supporting document. P eventually conceded the FEHD did not carry out further water test in 2007 after it issued its letter dated 20 March 2007.
217. D2/TP1 testified (and on balance I accept) he could not see any irregularity/defect or visible water leakage at Flat 1E. I have dealt with Locations Z, Y and A, and concluded there was no active water leakage and/or P had not shown any active water issue that originated from Flat 1E. As regards Locations B, I am unsurprised by the persistence or even worsening of the water leakages there as I have found there were leakages from the defective External Shower Cubicle Drainpipe (but other water sources on/above the Light Well Rooftop had not been excluded) that seeped through the Yard Rooftop (which was not impervious to water) into the Bathroom Area. I also find such defective External Shower Cubicle Drainpipe had not been repaired, so with regular use of the shower cubicle by D2’s/TP1’s live-in helper, the passage of time and/or the lack of maintenance/repair to the External Shower Cubicle Drainpipe and the Light Well Rooftop, the water damage at the Bathroom Area worsened. As regards the Cabinet Area, I have found the defects in the External Sink Drainpipe and in the Yard Rooftop had not been repaired, so waste water from the External Sink Drainpipe (and other water sources on/above the Yard Rooftop which had not been excluded) seeped inside the Yard Structure to emerge at Location X with expansion to Extension X.
218. Taking showers, doing laundry and washing dishes Ds argued that since the Yard and Light Well Rooftops were not impervious to water P was unable to exclude rainwater as a relevant water source. I agree, but this did not detract from my finding that leakages from the External Sink and Shower Cubicle Drainpipes were also relevant water sources.
219. P claimed the water leakages experienced in Flat GE did not correlate to rainfall, and alleged the leaked water collected at Flat GE were soapy water (ie waste water) and not rainwater. It is therefore useful to first turn to P’s assertions in this respect:
| (a) |
Washing dishes – P claimed leaked water at Location X (which she collected with a bucket) was from Flat 1E “…… because every time when I saw …… water leakage, it was at a time when they were doing the washing up of dishes”. P went further to say “[actually], after the removal of the [Old Cabinet], I could see water coming down from upstairs when they washing the dishes, soapy water coming down. When they stop washing the dishes, the water would stop. It had nothing to do with rain or other weather conditions”. |
| (b) |
Washing machine – P further claimed that since about 2007 she began to know when the occupants of Flat 1E would do their laundry behind the 1E Kitchen, and “[every] time when I saw water coming out, I would call [D2/TP1] and he would tell me that he was using the washing machine, doing the laundry”, and the water leakage would stop when D2/TP1 finished washing clothes. |
| (c) |
Taking showers – Even though P was not sure of the cause of water leakages at the Bathroom Area, she claimed water would leak into the GE Master Bathroom whenever she “heard people taking shower upstairs” at the 1E Helper Bathroom. |
220. Ms Wong submitted P’s allegations suggested a high velocity of water seepage between Flat 1E and Flat GE such that water activity upstairs quickly presented as water leakage downstairs, but in reality it should take a while for water to seep through cracks/defects in the floor slabs of the 1E Kitchen and 1E Helper Bathroom (which by design were impermeable) before it would reach the structural ceiling and then become noticeable at the false ceilings. Ms Wong reminded that when Wu carried out the water spray test on the Light Well Rooftop in 2014 it took half an hour for water to seep through to the ceiling of the GE Master Bathroom even though the materials of the Light Well Rooftop were less strong/dense when compared with the reinforced concrete floor slab.
221. I find there were certain elements of truth in P’s contentions although she resorted to embroidery by suggesting immediacy between water activity upstairs and water leakage downstairs:
| (a) |
Given my finding there was no leakage from the internal section of the waste water drainpipe of the washing machine in Flat 1E, my rejection of P’s allegation of spillage from such washing machine in mid-2007 or at any other time, and D2’s/TP1’s clear evidence that he (not being the one who would use such washing machine) could not correlate/link particular use of such washing machine to P’s specific water leakage complaints, I do not accept (i) D2/TP1 told P the washing machine was in use when she complained to him about water leakages and/or (ii) there was any connection between operation of the washing machine and water leakages in the Cabinet Area. |
| (b) |
I have found water leakages from the External Sink / Shower Cubicle Drainpipes entered Flat GE via the Yard / Light Well Rooftops that were not impervious to water (although seepage of rainwater and other water sources on/above the Yard Rooftop could not be excluded), so I accept there would be water leakages at the Cabinet/ Bathroom Areas even when it was not raining. But I am unconvinced by P’s over-zealous attempts to blame Flat 1E by saying there was no water leakage at all even when there was rainfall or even typhoons. After all, subject to discussions in (c) below, common sense suggested inert defects in the Yard / Light Well Rooftop would not distinguish between waste water that leaked from external sections of waste water drainpipe(s) and rainwater by admitting the former and not the latter into Flat GE. In my view, the timing, degree, amount and velocity of water penetration would be affected by, say, (i) timing as to use of water by the flat unit(s) that would drain into defective external section(s) of the waste water drainpipe(s), (ii) location of the leakage defect(s) of the external section of the waste water drainpipe(s) vis-à-vis the location/size of the defects/openings of the Yard / Light Well Rooftops that would admit water inside Flat GE, (iii) the effectiveness of drain points for discharge of water (be it rainwater or leaked water) that fell on the Yard / Light Well Rooftops, (iv) the amount of water from leakages/rainfall, and/or (v) any accumulation of water on the Yard / Light Well Rooftops (see also paragraph 167 above). |
| (c) |
As seen in paragraphs 358-360 below, drainage on the Yard / Light Well Rooftops (which did not have proper access for cleaning, maintenance and repair) was inefficient, and might lead to accumulation of water (be it rainwater or leakages) to seep inside Flat GE through defects in such rooftops. But that said, rainwater would fall evenly on such rooftops and would be more amenable to being drained away at the drain points (unless blocked by debris/leaves), by the Surface Channel and/or over the Light Well Kerb, but leakages from the External Sink / Shower Cubicle Drainpipes that dripped on/near the relevant defects and/or weak points of the Yard / Light Well Rooftops (eg the seams where such rooftops met the parent structure above Locations X and B) would likely seep inside Flat GE rather than drain away. This might account for P’s impression that the water leakages might not correlate to rainfall. |
| (d) |
D2/TP1 testified he could not correlate/link taking showers and/or dishwashing to P’s specific water leakage complaints, and I agree water leakages at Flat GE might not have the immediacy P suggested vis-à-vis water activities at Flat 1E even though seepage was via the Yard / Light Well Rooftops rather than through floor slabs. In my view, the alleged immediacy reflected P’s exaggerated efforts to underline her conviction that Flat 1E was a relevant water source. But the available photographs showed P did use buckets/basins and bath towels to collect leaked water at the Cabinet/Bathroom Areas, and she collected bucketfuls rather than mere drops. In such circumstances, I am persuaded P would know whether the collected water was clear rainwater or soapy waste water. So whilst I accept P “over-egged the pudding” in her allegations in paragraph 219 above, I find she did collect soapy water at the Cabinet/Bathroom Areas which was consistent with my findings of defective External Sink / Shower Cubicle Drainpipes. |
222. September/October 2007 In October 2007, Chief RE succeeded Selex Properties as the Manager. P claimed that in the latter part of 2007 (ie about September/October 2007) D1/Li visited Flat GE to inspect the water damage, and Li agreed to pay for rectification of the water damage and replacement of the damaged Old Cabinet, but Loke Sr told Li they would replace the Old Cabinet themselves and then tell Li the cost for his settlement.
223. On the other hand, D1 said in/about September/October 2007 an appointment was made for her, Li and their contractor to go to Flat GE to meet P “to have a look of the cabinet and wall or walls that were claimed to be damaged.” D1/Li said Loke Sr was not present at such meeting, and they acceded to P’s request to carry out some minor repairs to Flat GE, eg to re-paint the ceilings/walls of the GE Master Bathroom and to replace the Old Cabinet. D1 claimed it was agreed (a) D1/Li would arrange for a replacement cabinet to be made for P, and (b) D1’s contractor would re-paint the affected ceilings/walls, but D1’s contractor later reported P refused to let him to carry out the works in (b) above because workmanship of “contractors from Kowloon” was not good enough. D1/Li claimed to have placed an order with a shop in Taipo for a custom-built replacement cabinet to be manufactured in Mainland China at $800/foot or $15,000 in total, but when it was ready and paid for by D1 (but she did not keep the invoice) P refused to accept it, so D1 had it delivered to her factory in Mainland China and later disposed of it.
224. I note P was very insistent that D1 should compensate her / Loke Sr for water damage to Flat GE, and D1’s attitude was “…… when I went [to Flat GE] and saw the air bubbles on the wall and the damaged cabinet, I thought that those problems were our problems and so I just promised to fix those problems”. Li also said whilst he did not think he/D1 should be responsible for the water damage to Flat GE he wished to resolve the issue with P, and volunteering to carry out repairs for her was “just …… a possible way of doing things”. In my view, by that time D1/Li had replaced the internal section of the waste water drainpipe of the washing machine in the 1E Kitchen, but they had no thought of checking/fixing the External Sink / Shower Cubicle Drainpipes (especially when there was no proper access to the Yard / Light Well Rooftops for cleaning, maintenance and repair), so D1/Li thought to wrap up the matter with P by meeting her insistent demands for rectification/compensation with promise to carry out minor works at Flat GE for P and to replace the Old Cabinet. I also find P accepted D1’s/Li’s offer and came to agreement with them as per the arrangement in paragraph 223(a)-(b) above, but P later changed her mind because (a) Loke Sr had a new idea/design for the replacement cabinet that would also house his new hi-fi speakers, (b) Loke Sr, who had high standards for home décor, was very particular about workmanship, and (c) P / Loke Sr recognised that simply re-painting ceilings/walls would not be enough (and as seen in paragraph 227 below they actually caused more substantial repairs to be done). But, I further find, D1/Li regarded P’s decision to resile from their neighbourly agreement snobbish and unreasonable, which lessened room for future cooperation.
225. That said, I do not accept D1’s/Li’s evidence that they had ordered a new cabinet and/or it was ready when P refused it:
| (a) |
D1 claimed she did not keep the invoice/receipt and there was no photograph of the new cabinet, but if P refused the new cabinet soon after it was made, D1 would have kept a record against what she regarded as P’s unreasonable stance. |
| (b) |
D1/Li did not explain why the new cabinet was allegedly in dark brown colour with a brown-coloured sliding glass panel in the middle which was quite different from the Old Cabinet in respect of which Li allegedly drew a sketch. |
| (c) |
D1/Li did not explain why they did not reply to P’s demand letter dated 1 March 2008 (D/13-14) that was emailed to them via D2/TP1 on 13 March 2008 (D15-17) by asserting the new cabinet was ready but it was P who refused it. In fact, D1/Li was silent on this until they made their witness statements in September 2014. |
| (d) |
D1 did not check whether the shop in Tai Po was still in business in 2012 to look for relevant evidence even after P commenced the Main Proceedings. |
226. November/December 2007 P claimed she was told by Chief RE the water leakages at Flat 1E had been fixed, and “it did appear to P that the leakage problem in the Living Room has stopped momentarily in November 2007 and therefore [Loke Sr] did the renovation work to [Flat GE] and also replaced the damaged cabinet”[163] in November/December 2007. D1 said she and her family stayed in 2 hotels when such repairs were carried out. But D1 denied (whilst D2 did not admit) such alleged renovations were caused by alleged water leakages from Flat 1E.
227. On 17 December 2007, Loke Sr’s contractor Kong’s Decoration & Furniture (“Kong’s”) issued an invoice to Loke Sr (“Kong’s Invoice”, C2/189) for the following works at Flat GE, and also a receipt for $62,900 for such works (C2/190):
| “1 |
天面(三個)執漏 |
(1) 項計, 連工包料: |
HK$9,700.00 |
2 |
室內天花及牆身油漆翻新: |
(2) 項計, 連工包料: |
HK$24,500.00 |
3 |
原有英坭地台油地台漆: |
(3) 項計, 連工包料: |
HK$7,700.00 |
4 |
清拆玻璃一件, 換不銹鋼門連框一套: |
(4) 項計, 連工包料: |
HK$7,900.00 |
5 |
室外原有圍身夾板噴手機掃漆: |
(5) 項計, 連工包料: |
HK$4,300.00 |
6 |
搬傢俬、封好雜物及一般清潔: |
(6) 項計, 連工包料: |
HK$4,300.00 |
|
|
(1)-(6) 項計, Total: |
HK$65,400.00 |
7 |
檢查冷氣機、換控制板一個及換機頭(客廳位) 一部。 |
(7) 項計, 連工包料: |
HK$5,400.00 |
|
|
(1)-(7) 項計, Total: |
HK$5,400.00 |
|
「附註: |
1. 上述第(4) 項不銹鋼門及門框, 正在訂做中;
2. 除了第(4) 項外, 工程總額: HK$62,900.00
3. ……
4. ……」” |
228. P said it was Loke Sr who liaised with and gave instructions to Kong’s for the works listed in Kong’s Invoice:
| (a) |
Item 1 - P claimed not to know what remedial/rectification works at “天面(三個)” referred to except she believed they concerned the 3 Areas. But as Ms Wong submitted, it was uncontroversial there were only 3 Rooftops at Flat GE. The Bottom Photo annotated by Loke Sr’s contractor (whom I find to be Kong’s) showed “天面” (ie rooftop) referred to “室外” (see paragraph 199 above) in contra- distinction to “天花” (ie ceiling) in the interior part of Flat GE in item 2. In my view, this amply demonstrated Loke Sr knew all 3 Rooftops were defective and required repairs. I find on balance P / Loke Sr knew or seviously suspected the defects of the Yard / Light Well Rooftops were the water routes for the water leakages at the Cabinet/Bathroom Areas. |
| (b) |
Item 2 - P claimed she knew the ceilings/walls in the GE Laundry Room and GE Helper Toilet were re-painted, but had no idea whether other parts of Flat GE were re-painted. Mr Fong submitted this did not mean the Glazed Wall was repaired. I disagree. In my view, item 2 did not merely refer to re-painting the ceilings/walls (“天花及牆身油漆”) but also “翻新”. There was little point in just re-painting the ceilings of the GE Laundry Room and GE Helper Toilet without repairs to deal with the spalling concrete and loose plaster. Likewise, the contractor had to “翻新” the brickwork Glazed Wall to improve its waterproofing effectiveness before any re-painting would be meaningful. In fairness, I accept the works in item 2 included re-installation of the false ceiling and related paintwork in the Bathroom Area. |
| (c) |
Items 3, 4, 5 and 7 - These items had no relevance to the water leakages at Flat GE. P thought (but was unsure) that item 4 should be the glass panel (not a door) next to the Utility Cabinet at Location C, but she did not know why it was described as a door. But these items supported my finding in paragraph 224(c) above that P resiled from the agreement with D1/Li because P / Loke Sr contemplated more extensive works than just re-painting the ceilings/walls of the affected areas and replacing the Old Cabinet. |
229. As alluded to above, Loke Sr designed and caused to install a new wooden cabinet in place of the Old Cabinet (“New Cabinet”). The New Cabinet was a row of built-in cabinet (somewhat more recessed than the Old Cabinet) with open shelves on top and cupboards at bottom (C1/81-83). An extension of the New Cabinet was installed underneath the false ceiling at Location X (“New Cabinet Extension”, C1/35) to house Loke Sr’s new hi-fi speakers (“Speakers”). It was mounted with acoustic cloth.[164] P produced an invoice by Kong’s dated 16 December 2007 that was addressed to Loke Sr as follows (C2/188):
| “1 走廊通道, 新做木紋夾板面層架櫃一組。 |
連工包料: HK$5,200 |
2 走廊通道, 新做音箱一座連活動門板一幅, 亞面廣立捫布面。 |
連工包料: HK$7,600 |
3 走廊通道, 新做木紋夾板面企身側板一件。 |
連工包料: HK$1,900 |
|
Total: HK$14,700” |
230. On balance, I am not persuaded P / Loke Sr carried out the aforesaid repairs/works because the water leakages momentarily stopped in November 2007. I find it strange for P to have heard from the BMO that the water leakages were fixed when she personally met D1/Li in September/October 2007 to discuss rectification works for the water damage in Flat GE, and when D1 did not even report back to the BMO about repairs/works done by her contractor. I have found D1/Li were willing to offer modest remedial works to pacify P, but P / Loke Sr had more works in mind (including works for the Glazed Wall and the Rooftops). I find it was these works done by Kong’s in November/ December 2007 that resolved the water leakage problem in the Laundry Area, and resulted in some interim relief for the other water leakage problems (especially in the Bathroom Area), but as seen in the paragraph below, they did not provide a complete cure.
231. In my view, during the period from November 2006 to March 2012, the only time when repairs were done to the Yard / Light Well Rooftops was when Kong’s effected the repairs under item 1 of Kong’s Invoice in November/December 2007. But as alluded to above, such repairs were not quite thorough, and not all water leakage problems at Flat GE were resolved:
| (a) |
Kong’s repairs to the Yard Rooftop did not rectify the dilapidation/ defect in the External Sink Drainpipe or improve the waterproofing feature of such rooftop, which was borne out by resumption of water leakages at the Cabinet Area in late January 2008. |
| (b) |
Kong’s repairs to the Light Well Rooftop gave better interim relief from the water leakage problem in the Bathroom Area as evident by the fact that even though P made continued demands for compensation in relation to earlier water damage to Flat GE (eg brown water stains on the marble panels at the GE Master Bathroom in March/April 2007 - see paragraph 164 and footnotes 146 and 148 above), complaints of active water leakages in the Bathroom Area were muted until October 2008 in obvious contrast to the renewed water leakage complaints in the Cabinet Area in late January 2008. P produced photographs of water leakages at the Cabinet Area taken in 2008 (C1/81-83 and B3/ 551-555) but none from the Bathroom Area. Since Kong’s did not carry out repairs to the External Shower Cubicle Drainpipe under item 1 of Kong’s Invoice, the hiatus in water leakage complaints for the Bathroom Area showed Kong’s repairs resulted in some improvements to the waterproofing feature of the Light Well Rooftop. This meant the defects/leakages of the External Shower Cubicle Drainpipe were not resolved, but the improved Light Well Rooftop temporarily resisted seepage into the Bathroom Area, which explained why leakages from other water sources were also muted until October 2008. But Kong’s repairs did not provide a permanent cure, and as time passed the rooftop defects reappeared in October 2008 with consequent leakages in the Bathroom Area. |
| (c) |
Mr Fong agreed there was no further complaint about the Laundry Area since December 2007. Actually, apart from Location A on the Glazed Wall which was repaired by Kong’s in November/December 2007, other observed damage was just dried watermarks. |
XVII. 2008
232. Early 2008 P said the water leakages (but not at the Laundry Area) resumed in January 2008. P claimed that in/about early 2008 water leakage damaged the New Cabinet[165] and “dampening a wall [at GE Living Area] and the bathroom ceiling [at the GE Master Bathroom]”[166] such that P was obliged to dismantle the dampened wall (ie the brickwork wall at the back of the New Cabinet Extension, C1/81-83) and re-paint the ceiling of the GE Master Bathroom at Location U and between Locations U and TB as shown in Floor Plan 5 referred to in footnote 166 above. P claimed she observed water coming from the ceilings above the New Cabinet and at the GE Master Bathroom, and alleged the possible sources were as stated in paragraph 93(a)-(b) above.
233. In the Joint Report, the Experts agreed that in early 2008 (a) at the Bathroom Area water that appeared on the Light Well Rooftop could seep into the interior through the defective Light Well Structure, and (b) at the Cabinet Area water could pass through the defective Yard Structure as shown by leakages of the Yard Structure seen in the Top/Bottom Photos and from a water spray test in 2008 in the presence of the owner of Flat GE that resulted in water dripping into the interior of the Yard Structure.
234. But the letter dated 1 March 2008 by P / Loke Sr (see paragraph 237 below) made clear the new water leakage in late January 2008 (ie after Kong’s repairs to the Rooftops) was at the Cabinet Area (with no mention of the Bathroom Area). Not unnaturally, Loke Sr turned to Kong’s since Kong’s had just completed repairs for the Rooftops about a month ago. This, in my view, explained why in February 2008 Kong’s checked the ceiling soffit inside the vertical access panel of the false ceiling at Location X and also checked the Bottom Photo Area (ie P5 Area at/near the Yard Structure), and noted some seepage at the seams of the “canopy” outside and inside the Yard Structure. Kong’s annotated the Top/ Bottom Photos and gave them to Loke Sr saying the BMO would “…… know where the problem area is. The upstairs, well, just show it to them and they will know where the problem area was”. Loke Sr gave the Top/ Bottom Photos to P to pass onto the BMO. But Kong’s did not take photographs of the Bathroom Area and/or the Light Well Rooftop, and I find that in January 2008 water leakages resumed at the Cabinet Area but not at the Bathroom Area.
235. Mr Fong submitted I should infer Loke Sr had arranged for repairs to be done for water seepages at the seams of the “canopy”. I disagree. In my view, it was plain that when Loke Sr queried Kong’s about the resumed water leakages at the Cabinet Area, Kong’s tried to shift responsibility to “the upstairs” via the BMO, which was why Loke Sr passed the Top/Bottom Photos to P for her to follow up with the BMO and/or Ds. This was borne out by P’s / Loke Sr’s letter dated 1 March 2008 in paragraph 237 below that enclosed the Top/Bottom Photos as “(photo of leaking pipe causing water damage)” to D/Li (owner) and D2/wife (tenant) to claim for damages. I find P / Loke Sr had no intention to repair the water leakages seen/suspected in the Top/Bottom Photos. In my view, the resumed water leakages at the Cabinet Area plainly demonstrated the External Sink Drainpipe and Yard Rooftop had leakage/defect (especially where such rooftop met the parent structure at the Bottom Photo Area / P5 Area, ie at/near the Kitchen/Yard Coner) that had not been resolved or properly resolved, and Kong’s repairs to the Yard Rooftop did not succeed in improving its waterproofing effectiveness.
236. March 2008 Although P’s pleadings averred that water leakages resumed in/about March 2008, P’s witness statement stated the water leakages resumed in early 2008 and appeared to stop briefly in/about March 2008. I refer to my finding in paragraph 234 above and specific reference in the letter dated 1 March 2008 in paragraph 237 below that the water leakages in the Cabinet Area resumed in January 2008. In my view, the water leakages at the Cabinet Area stopped briefly in March 2008, which probably explained why P / Loke Sr sent the letter dated 1 March 2008 in paragraph 237 below to claim for damages. It was unclear why the water leakages at the Cabinet Area stopped briefly in March 2008. I note and accept intermittent stoppage of the water leakages often occurred when D2/TP1 and/or his family were on overseas trips/holidays (see paragraph 242 below), but there was no need for me to speculate whether D2/TP1 and his family were out of town around the Easter holidays in 2008.
237. On 1 March 2008, P/Loke Sr wrote to D1/Li (owner) and D2/ wife (tenant) (D/13-14)[167] to claim for damages due to water leakage from Flat 1E:[168]
| “ |
Nature of damage |
Amount of claim |
Date
|
| Appendix 1 |
Water damage to washer + 2 visits (checking and replacement) |
$5,270 to replace water damaged part + $650 for two visits and labour work |
August 28, 23 2007 |
| Appendix 2 |
Repair of damage areas (renovation) |
$27,000 |
Dec 17, 2007 |
| Appendix 3 |
Hotel stay during renovation of the damage parts |
$4,900 |
Nov 26 – Dec 2, 2007 |
Total for now HK$37,820”
|
The letter went on to state as follows:
| “After the repair of the [Flat GE],[169] in late January 2008 we found new water leakage in the [GE Living Area] (appears to be from your kitchen site), and have reported to the [BMO] and by phone to Mrs Li [ie D1]. Up till the date of this letter, I still have not heard from you of your intention to fixed the leakage. |
| Appendix (photo of leaking pipe causing water damage) |
Damage to the new installed wooded cabinet with loud speakers installed-
(which already causing peeling of the ceiling and the mouldy wooden cabinet with loud speaker installed) |
??????
(the earlier it is fixed, the less it would cost) |
|
|
Damage to new ceiling and painting cost (+ labour cost) |
??????
(the earlier it is fixed, the less it would cost) |
|
Future claim when completed: HK$?????”
|
P went on to claim that since November 2006 she and Loke Sr suffered much inconvenience, and she ended such letter by saying as follows:
“We have notify you on Feb 2, 2008 of new leakage coming from your kitchen pipe(s), which is now already causing peeling of the ceiling, and moulds to appear on the newly installed wooden cabinet with loud speaker. The cost of repair work will be sent to you once the work has to be completed. Again, needless to say, the earlier water leakage damage is fixed, the less it would cost. The only way to stop having to pay for the damage is to IDENTIFY ALL OLD PIPES AND FIX THEM ALL, AND NOT ONE SPOT AT A TIME.”
As alluded to in paragraph 234 above, such letter showed water leakages resumed at the Cabinet Area but not at the Bathroom Area.
238. Linda gave Li’s email address to D2/TP1, so on 11 March 2008 D2/TP1 sent P’s letter dated 1 March 2008 by email to Li (D/15-17). D1 heard from Li that P made a claim for compensation of some $30,000 odd. In my view, D1/Li felt it was unreasonable for P to resile from their agreement to re-paint the ceilings/walls and to replace the Old Cabinet for her, so they did not bother to reply to P’s letter.
239. I accept that throughout March 2008 D2/TP1 relayed P’s complaints to Li and repeatedly urged him to send his contractor to fix the water leakage problem at the Cabinet Area. On 14 March 2008, D2/TP1 followed up with Li by email saying P was waiting for Li “to send your worker to check the defective pipe” and urging for a reply (D/18). D2/TP1 explained he was just relaying P’s complaint and only guessed there was something wrong with pipework in Flat 1E. On 15 March 2008, D2/TP1 emailed Li to say he received more telephone calls from P, and urged Li to resolve the water leakage problem once and for all (D/19), and to ask for Li’s consent for P’s worker to have a look at Flat 1E so P’s worker could “make a proposal to fix the pipe for good”. But Li did not give any written reply. On 25 March 2008, D2/TP1 emailed to ask Li to contact and allow Kong’s to come to Flat 1E “to repair the kitchen ASAP” (my emphasis) (D/20). D2/TP1 said all along he was unable to visualise any water issue on Flat 1E so he merely relayed P’s request to Li. On 29 March 2008, D2/TP1 emailed to inform Li the following week would be the last chance to carry out repairs at the 1E Kitchen because he would be out of town in April 2008, and to ask “when your workers are coming” (D/21). In my view, this chain of emails concerned water leakages in the Cabinet Area that resumed in January 2008.
240. D1 said in the 1st half of 2008 (but she could not recall exactly when) Wong informed her of P’s complaints of water leakages from the 1E Kitchen and Li received emails from D2/TP1 about P’s water leakage complaints, so D1 instructed her contractor to check for leakage from the pipes/drains at the 1E Kitchen but none was found.[170] D1 did not tell Wong, the BMO and/or D2/TP1 such result as it was not her habit to do so. D1 claimed she was at a loss to know what else to do when P could not pinpoint which part of Flat 1E was leaking and D1’s contractor could not find any defect, so she asked Li to go with the contractor to check Flat 1E, which Li said he did when he returned to Hong Kong and which he claimed led to the water spray test referred to in paragraphs 253-259 below. Again, even on D1’s case, the main focus was on how to deal with P’s complaints about renewed water leakages in the Cabinet Area rather than in the Bathroom Area.
241. April 2008 D1 claimed there were further works at the 1E Kitchen in early 2008 of which she had no clear memory. D2/TP1 said in early April 2008 some repair works were carried out at the 1E Kitchen by D1’s contractor (see his email to Li dated 3 May 2008 in paragraph 245 below). It transpired that on 2 April 2008 Chief RE’s property officer Stella Chan (“Stella”) emailed to inform P that D1 arranged for a contractor “to fix water pump today, and the contractor has finished changing the leakage water pump” (D/48). Li had no idea what/where the pump was, and no evidence was adduced at trial of any relationship between such water pump in Flat 1E and the water leakages in Flat GE. More importantly, P did not plead the water leakages at Flat GE were caused by any defective/ leaking water pump. Be that as it may, I find such repair works to the water pump did not remedy the defects of the External Sink Drainpipe and/or the Yard Rooftop.
242. On 9 April 2008, P emailed Stella to say she found the condition of the ceiling had worsened with paint falling off, and complained there was no response from D1 despite complaints for over 1½ years (D/49). On 29 April 2008, P emailed Stella (D/50) to say she checked the “roof” every night, there was not much change but the condition actually worsened in the last 1-2 days with large area soaked with water. By such email P urged Stella to find out what was done at Flat 1E for the last 2 days as it might give a clue where the water came from. P followed with a further email to Stella (D/51) stating she returned home after work to find water dripping from upstairs, and “my floor was wet and water stain to my loudspeakers, and the wooden cabinet soaked with water ……” (my emphasis). P also stated she found out from D2/TP1 that he and his family had not been in Hong Kong and the increased leakage in the last 1-2 days coincided with their return to Hong Kong 2 days ago. P pressed Stella to get Li to fix the problem and to pay her damages. On 30 April 2008, Stella emailed P (D/52) to say they had talked to D1 who said she would find the contractor to fix the problem. Plainly, this chain of emails in April 2008 was again focused on the worsening water leakages at the Cabinet Area with no mention of the Bathroom Area save to chase for compensation.
243. May 2008 On 3 May 2008, D2/TP2 emailed P to say he would send picture of the ceiling (which should be photographs of the Cabinet Area) to Li (D/34). P replied by email (D/35) to thank D2/TP1 and to complain how she suffered since November 2006.[171] I note although P referred to the GE Master Bathroom in the email, she complained about “stain that cannot be removed on my marble bathroom” which appeared to resultant damage from earlier water leakages (see paragraphs 168 and 231(b) and footnotes 146 and 148 above that referred to brown stains on the marble panels at the Bathroom Area seen in March/April 2007) in contrast to her complaints about “…… my wooden cabinet ruin by water leaking from above, the new pair of loudspeakers ……” which appeared to refer to active water leakages. Such email went on to say as follows:
“…… now only a few months after the renovation, the leaking starts all over again! …… every time you used water in the kitchen, I can see increase in water mark in my ceiling. The situation is worse when you told me you were using the dishwasher. …… Please look for a professional and qualify worker to take a good look at the old water pipe system and fix the whole tube instead of here and there ……” (my emphasis)
P again enclosed copy repair receipts and threatened legal action if she did not receive from D1 or D2/TP1 (upon deduction from the rent) payment of compensation for damage caused.
244. D2/TP1 again checked the pipes/drains inside Flat 1E and saw no irregularity, which in my view was unsurprising since the problems were with External Sink Drainpipe and Yard Rooftop. P in her emails in April 2008 (D/51, see paragraph 242 above) and on 3 May 2008 (D/38, see paragraph 243 above) referred to D2/TP1 telling her a dishwasher was in use. D2/TP1 did not recall having a dishwasher when he stayed at Flat 1E, and a dishwasher was not amongst the appliances D1 provided for TP2’s use under the Addendum Top. I have found no plumbing works were done by D2/TP1 in February 2007. During his inspection of Flat 1E, Wu could not discern whether any particular pipes/drains at the bottom/base of the kitchen cabinet used to be connected to a dishwasher. But D2/TP1 fairly accepted he probably said to P “washing the dish in the sink” which P “probably misunderstood” as using a dishwasher. I find on balance D2/TP1 did not have any dishwasher, and P misunderstood D2’s/TP1’s explanation in her eagerness to blame Flat 1E for any water-related activity in the 1E Kitchen. Whilst I am not persuaded by the exaggerated immediacy in P’s allegation that “every time [D2/TP1] used water in the [1E Kitchen], [she] can see increase in water mark in [her] ceiling”, I accept waste water from washing dishes would leak from dilapidation/defect of the External Sink Drainpipe and seep through the Yard Rooftop into the Cabinet Area. Even if there were a dishwasher (which I disagree), its drainpipe would probably have been connected to the drainage under the Kitchen Sink and would have exited the Kitchen Wall via the Sink Drainpipe, which would not have materially affected my findings as to leakages in the Cabinet Area.
245. On 3 May 2008, D2/TP1 emailed to tell Li P visited him “last Wednesday” evening to complain that the water leakage was getting worse (D/22):
“It seems by all means that the worker you have sent to [Flat 1E] early April have not fixed properly the leakage from [the 1E Kitchen]. …… When will you take responsibility and instruct a decent professional to come and fix this problem? Since I am receiving more and more pressure from [P], I intent to carry out the repair myself and deduct it from the rent if you don’t make any move quickly. Awaiting your early reply.”
D2/TP1 explained (and I accept) at that time he did not actually intend to carry out repairs himself as he considered he was not authorised to do so under the 1st TA and Addendum and he did not detect any defect/ irregularity within Flat 1E, but he mentioned this to put pressure on D1 to carry out more professional repairs. D2/TP1 also considered it was not for him as licensee of the tenant TP2 to decide whether Li/D1 should pay compensation to P. On the following day Li replied by email to say he was busy in Mainland China and the situation was “…… trouble for [him] too”, but “[he] will call [P] to settle the problem asap” (D/23). D1 was unaware of Li’s email reply, but confirmed Li asked her to have her contractor look into the matter again given P’s continued complaints despite their contractor saying there was no leakage.
246. On 6 May 2008, D2/TP1 asked Li by email “[can] we arrange a qualified worker to come and assess the situation? If we choose to let [P’s] contractor come and have a look, we should be able to solve the matter for good” (D/24). On 7 May 2008, P emailed D2/TP1 to complain that in a week after he returned to Hong Kong the water damage area at Location X expanded and the entire New Cabinet was soaked with mould growth and water stains down to the floor, and she had to mop up water and to suffer irritations/ailments. She feared the ceiling (ie the ceiling at the Cabinet Area) would fall off, and threatened police/legal action unless the problem was fixed with compensation paid by end of May 2008 (D/36). On 8 May 2008, D2/TP1 chased Li by email for a response, and again asked “[do] you want me to get some qualified contractor to come and assess the situation. Please reply ASAP” (D/25). Li did not reply but asked D1 have her contractor (who was a qualified contractor with plumber/electrician licences) to look into the matter again. So in mid-May 2008, D1 sent her contractor to check the 1E Kitchen but again found no defect. D1/Li both contended D1 arranged for her contractor to check Flat 1E (made available by D2/TP1) on numerous occasions but no defect was found. In my view, this echoed D2’s/TP1’s observation that no irregularity was found within Flat 1E, but such inspections did not address the defects of the External Sink Drainpipe and the Yard Rooftop.
247. As evident from the above account, I accept P made more complaints in May 2008 in relation to the Cabinet Area, and D2/TP1 communicated with her and notified Li by email/telephone to take action, but Li’s response was typically non-responsive or he would say he would take care of the problem. In light of this, P and D2/TP1 discussed how to deal with the water leakages at the Cabinet Area, including a proposal for D2/TP1 to pay the cost of repairs to Flat 1E and to reimburse himself by deducting such payment from the rent payable to D1, but D2/TP1 felt it was for P to raise this with Li in writing although he agreed to pass on P’s proposal to Li. So on 15 May 2008, P sent email to D2/TP1 (but addressed to Li) to complain the “water damage now extends to more than 3 feet” (which I find referred to water damage to the false ceiling of the Cabinet Area), to demand payment of the cost of repairs done to Flat 1E in December 2007 and the cost of further repairs to be made by deducting such costs from the rent payable to D1, and to assert she would assume D1 agreed to such arrangement “for the repairing of your house so that no more leaking into my flat) and the repairmen of my flat” if she did not hear further by end of May 2008 (D/37). It appeared such email was a cooperative effort by P and D2/TP1 to put pressure for D1/Li to take action to deal with water leakages in the Cabinet Area, but Li ignored such proposal which he considered unreasonable (since P resiled from previous agreement to have D1’s contractor re-paint the ceilings/walls and to replace the Old Cabinet for P) and did not reply.
248. On 19 May 2008, Stella emailed P inter alia as follows: “[your] contractor has finished the check of the water pipe. He found everything is ok right now. For details, please ask the contractor” (D/54). Notwithstanding P’s denial, such email suggested and I find it was P / Loke Sr who with D2’s/TP1’s cooperation arranged for their contractor to check the water pipes of the 1E Kitchen, which explained why the email stated P could ask her own contractor for details. The possibility of having P’s contractor carry out works at Flat 1E to fix the water leakage problem at the Cabinet Area was already alluded to in D2’s/TP1’s emails dated 15 March and 6 May 2008 to Li (see paragraphs 239 and 246 above), and I find that D1/Li failed to resolve the water leakages at the Cabinet Area, so P and D2/TP1 took matters into their own hands and had P’s contractor check the water pipes in the 1E Kitchen. In my view, the fact P’s contractor found “everything is ok right now” was consistent with D2’s/TP1’s observation of no irregularity in the 1E Kitchen and also with my finding that it was the External Sink Drainpipe and Yard Rooftop outside the 1E Kitchen that were dilapidated/defective.
249. In May 2008, D2/TP1 relayed to Li P’s further water leakage complaints in respect of the Cabinet Area. There was a series of email correspondence between P and D2/TP1 on 27 May 2008:
| (a) |
D2/TP1 sent email to P as follows (D/38):
“The black liquid leakage that you have observed last week-end obviously comes from a bottle of prune juice that was broken by our youngest kid on the kitchen floor and that was eventually mopped up from the floor by Laurence and subsequently rinsed into our kitchen sink. This leads me to think that the leaks you have observed comes from the sink drain.
I do not wish to wait any further for the action of my hopeless landlord and I would like your worker to come to my home and give me their advice to eventually carry out proper repair work that I will of course pay for and eventually deduct from my rental.
We are free anytime to welcome your recommended worker, Please feel free to contact me or Laurence to arrange the visit as soon as you wish.”
D2/TP1 testified that when P complained to him about black liquid, he asked his wife who reported as stated in the above email (“Prune Juice Incident”), so he guessed (i) it might be the prune juice that went down the Sink Drainpipe and (ii) there was problem with water evacuation from the Kitchen Sink. In my view, the Prune Juice Incident lent weight to my finding that waste water leaked from defect in the External Sink Drainpipe through the Yard Rooftop (that was not impervious to water) into Flat GE, which was consistent with D2’s/TP1’s evidence that he particularly checked the Kitchen Sink and drainage in the Sink Cabinet and did not notice any irregularity (and indeed P’s contractor also did not find any leakage – see paragraph 248 above). |
| (b) |
P emailed D2/TP1 to say she would ask Wong to tell D1 “to decide who she wants to hire to take care of the problem”, and P asked D2/TP1 to take care of the payment for repairing the damage caused to Flat GE (D/39). |
| (c) |
D2/TP1 emailed P (D/40) to say nothing would be done if P let D1 decide who she wanted to hire to fix the problem but it was up to P, and D2/TP1 went on to say in his email that “[now] talking about the payment of your repair, I am not legally in a position to impose this on [D1] and deduct from the rent. I regret to say that this is something you should legally obtain directly from [D1]”. |
| (d) |
P emailed D2/TP1 (D/41) to say she could not legally impose on him or D1 who to hire to carry out repairs, but she believed D2/TP1 would be responsible as well if she were to take legal action, “especially when you have taken part of the repairment before moving in and in addition, I have informed your worker of the leaking when he was working on the house before you moved in. So please consider.”
However, I have found D2/TP did not carry out any plumbing works in January 2007. |
250. In my view, D2’s/TP1’s proposal to have P’s contractor repair any water leakage in Flat 1E at D2’s/TP1’s cost to be deducted from the rent payable to D1 was intended to facilitate quick remedial action by someone P could trust and at no cost to her, but P decided not to take up such offer as she did not want to assume responsibility for repairs which she regarded was D1’s (or even D2’s/TP1’s) responsibility. P even sought to justify her decision to decline D2’s/TP1’s offer by referring to his email in (c) above. But D2’s/TP1’s email in (c) above was actually in response to a fresh matter raised by P in her email in (b) above, ie that D2/TP1 should pay for repairs to the water damage caused to Flat GE in contra-distinction to payment for repairs to fix the water leakage problem in Flat 1E. I find it reasonable for D2/TP1 to leave it to P to work out this new matter with D1 as D2/TP1 was not authorised by D1 to deal with P on compensatory damages which were not deductible from the rent.
251. On 27 May 2008, D2/TP1 emailed Li as follows (D/26):
“Your worker came last week and checked again the kitchen (sink and washing machine). The found nothing and they of course did nothing. The occupant of downstairs called again last Friday night to complain about additional water leakage in her flat and that obviously comes from our sink. …… I have decided to carry out myself the necessary repair work with qualified workers and to deduct it from the rent I am supposed to pay you for enjoying a decent accommodation. I will then ask my selected worker to come and have a look at the overall situation and keep you informed about their findings.” (my emphasis)
This referred to complaint of water leakages in the Cabinet Area that “comes from our sink”. But again, D2/TP1 did not actually go ahead with repairs to Flat 1E himself as he considered he was “not empowered to do so”, but he made such threat by email with a view to elicit some reaction from Li/D1. Li could not recall whether he replied to this email, but blamed P for causing unfriendly disturbance and putting pressure on him/D1.
252. From the above account, it was clear that throughout May 2008 the main focus was on how to tackle active and worsening water leakages at the Cabinet Area, and the Bathroom Area did not elicit complaint except for passing reference to some irremovable stains on the marble panels in the course of P’s demand for compensation for water damage to Flat GE. Indeed, the allegations as to the water spray test to which I now turn also concerned the Cabinet Area.
253. Watering plants and water spray test D1/Li claimed a water spray test was done at the Yard Structure, but in my view the evidence in relation thereto was unclear and unreliable.
254. Li claimed he and his contractor first went to Flat GE to check the water stains/marks, and met Loke Sr (but Li could not recall whether P was present or not) who (a) pointed out the leakage spots and (b) told them water leakages occurred at the Cabinet Area whenever someone watered plants at the Planter Boxes outside the windows of the 2 bedrooms at the rear of Flat 1E that overlooked the Yard Structure. D2/TP1 agreed he had plants in the Planter Boxes, which Li noticed when he visited Flat GE with his contractor.
255. When pressed, Li said he first heard of water leakage from watering of plants upstairs from Loke Sr as explained in the above paragraph, but later said he heard this from 2 sources about a week before the water spray test done on the day he and his contractor visited Flat GE:
| (a) |
in/about the first half of 2008 (possibly in April 2008 but Li could not be sure), D1 personally informed Li of such complaint (which she learned from Wong); |
| (b) |
Li went to Flat 1E and D2’s/TP1’s helper told him P had made such complaint. |
But neither (a) nor (b) above featured in Li’s witness statement, which only referred to Loke Sr’s complaint to him when he and his contractor visited Flat GE.
256. On balance, I disagree Loke Sr complained that watering of plants upstairs contributed to water leakages at the Cabinet Area:
| (a) |
I find (as P accepted) it was at an early (not late) stage that Loke Sr complained about watering of plants in the Planter Boxes and Flower Box,[172] which caused accumulation of dirt/soil on the glass skylights directly underneath (see locations marked “I” and “H” on Exhibit P1). |
| (b) |
I find D2/TP1 did not hear complaints about watering of plants at the Planter Boxes, and his helper did not relay such complaint to Li (which was not mentioned in his statement evidence). |
257. Li went on to say that shortly after he and his contractor met Loke Sr at Flat GE they returned to Flat 1E to carry out a water spray test by spraying water onto the external wall of the bedrooms at the rear of Flat 1E for a few minutes, and when they returned to Flat GE they and Loke Sr found the watermark at the Cabinet Area had increased in size, which (according to Li) meant water infiltration at the Cabinet Area was due to poor waterproofing of the Yard Rooftop underneath the Planter Boxes. Li claimed his contractor noticed the external walls and skylights appeared to show signs of aging and recommended Loke Sr to fix/repair the waterproofing features of the Yard Rooftop to which Loke Sr replied he understood. Li/D1 said soon after such water spray test Li told D1 the results, and D1 claimed Li even told her the water leakages at Flat GE were not caused by Flat 1E. Li claimed he did not know whether Loke Sr acted on his contractor’s recommendation.
258. On balance, save for one matter in paragraph 259 below, I find Li’s/D1’s evidence in respect of the water spray test unreliable:
| (a) |
If the purpose of the water spray test was to find the cause of the water leakages at the Cabinet Area, Li did not explain why water was only sprayed against the external wall of the bedrooms at the rear of Flat 1E and not also at the external Kitchen Wall where external sections of various waste water drainpipes exited the 1E Kitchen (ie the Kitchen/Yard Area, P5 Area and Bottom Photo Area where Loke Sr’s contractor identified leakages at the outside/inside seams of the “canopy”). I have also rejected Li’s claim that Loke Sr complained that water leakages at the Cabinet Area was related to the watering of plants at the Planter Boxes. |
| (b) |
The correspondence with the BMO did not refer to any water spray test. Indeed, the BMO’s email on 17 June 2008 (D/55) informed P that D1 promised “to arrange the contractor to fix the water seepage problem while the tenant is at home”. Had Li carried out the water spray test with the results as alleged, it would have been logical (as Li conceded) for D1/Li to tell Wong and/or the BMO the water spray test results tended to show the water leakages were caused by poor water insulation of the Yard Rooftop rather that for D1 to promise to arrange for a contractor to look into the matter again. Li tried to sidestep this by not ruling out the possibility that D1 told the BMO, but D1 said she did not tell the BMO and/or Wong. |
| (c) |
Li’s evidence as to whether he informed D2/TP1 the results of the water spray test was uncertain. Li at first said it was unnecessary to tell D2/TP1 because he had already told D2/TP1 he would deal with the matter himself. But Li later changed to say that D2/TP1 pressed him for an answer, so within 2 weeks after the water spray test he personally went to Flat 1E to tell D2/TP1 the results. This did not feature in Li’s witness statement, and was disputed by D2/TP1 who had no recollection of the water spray test or of his family/helper telling him about such test. |
| (d) |
P said it was Loke Sr who dealt with Kong’s from December 2007 to May 2008. In my view, if Loke Sr learned of the results of the alleged water spray test which allegedly gave insight as to how to tackle the water leakages, he would have informed P/Kong’s, and his inaction in this regard suggested no water spray test was done. |
259. The above account clearly showed that from January to May 2008 the focus of P’s water leakage complaints essentially concerned the Cabinet Area, and by May 2008 the water leakages at the Cabinet Area were no longer confined to Location X, but had expanded to cover the entire New Cabinet (see paragraph 246 above). This was in contrast to the Old Cabinet which was not water damaged other than at Location X (see footnote 121 above). In my view, the water source for such expanded water damage was not just the defective External Sink Drainpipe at the Bottom Photo Area / P5 Area (ie at/near the Kitchen/Yard Corner) above Location X. There was no evidence that D2’s/TP1’s user of the Kitchen Sink was other than ordinary household user, so expansion of the water damage demonstrated (a) further deterioration of the Yard Rooftop and/or worsened drainage problem thereon which encouraged more water leakage through the Yard Rooftop that was not impervious to water and/or (b) leakage from the drainpipe connected to the drain hole on the Surface Channel (see paragraph 359(b) below). In my view, these were likely causes of the extended water damage at the Cabinet Area. I note the above account of P’s complaints in May 2008 did not refer to active water leakages in the Bathroom Area.
260. June 2008 On 17 June 2008, P sent email to Stella (D/51) to complain that (a) water dripped down and wetted the floor, dampened the New Cabinet and stained her loudspeakers, and (b) she had to use towels to soak the leaked water, and to say she was told D2/TP1 and his family returned to Hong Kong for the last 2 days and “…… they told me they were using the dishwasher”. I have carefully considered the situation in June 2008 and see no basis to change my finding there was no dishwasher in Flat 1E. P asked Stella to call Li to fix the problem and pay for her repairs. On the same day, Stella replied to P by email that the owner of Flat 1E promised “to arrange the contractor to fix the water seepage problem while the tenant is at home” (but D2/TP1 was not in Hong Kong then) (D/55). D2/TP1 had no recollection of particular arrangement by D1/Li around this time to fix any water leakage problem at the 1E Kitchen, and I do not believe D1 sent any contractor to Flat 1E to “fix the water seepage problem”. Anyway, these emails undermined D1’s/Li’s evidence that there were no further water leakage complaints after Loke Sr was told of the results of the water spray test and the recommendations of Li’s contractor. But still, the essential focus of the water leakages complaints concerned the Cabinet Area rather than the Bathroom Area.
261. July-September 2008 P said in paragraphs 13 and 15 of her witness statement that water leakages at Flat GE stopped briefly in March 2008 and resumed in October 2008, but gave evidence that water leakages stopped and resumed from time to time between March and October 2008. In my view, P was right in saying water leakages resumed in October 2008 vis-à-vis the Bathroom Area. As seen from the above analysis, there were no complaints of active water leakages in the Bathroom Area evident from the correspondence from completion of Kong’s repairs in November/ December 2007 until October 2008, so more likely than not such repairs temporarily patched up the defects of the Light Well Rooftop at the seam where it met the parent structure above Locations B. But I find Kong’s failed to effect a permanent cure as amply demonstrated by the Yard Rooftop which suffered deterioration/defect about a month after Kong’s repairs were completed in late January 2008 that resulted in resumed leakages at the Cabinet Area. In my view, Kong’s repairs to the Light Well Rooftop were more robust, and they held out until October 2008 when leakages via dilapidation/defect in such rooftop resumed (see paragraph 264 below).
262. There were 2-3 months “…… from April or May to something like July” in 2008 when water leakages stopped. It appeared that D2/TP1 and his family had been away for a while as shown in P’s email dated 29 July 2008 to Stella (D/56) that there was “no water from above” last month when no one lived there, and P even suggested that repairs be done before the tenant returned and that the air-conditioners be tested for leakages. On 21 August 2008, P emailed Stella (D/57) to say it was the BMO’s responsibility to help her resolve the water leakage problem, and to report resumption of water leakages after D2/TP1 and his family returned from summer vacation and started to wash dishes. The reference to dishwashing showed that the complaint of resumed active water leakages was still in relation to the Cabinet Area.
263. But given D1’s evidence that her contractor found no leakage and did nothing, and my rejection of Li’s evidence as to the alleged water spray test, it appeared D1/Li did not carry out any or any effective repair works in 2008. As P explained in her emails in June to August 2008, stoppages of water leakages at Flat GE largely correlated to absence of D2/TP1 and his family/helper from Flat 1E. On 1 September 2008, P emailed Stella and others at Chief RE with copy to D2/TP1 photographs of Flat GE and urged them to take action (D/58). These photographs probably related to the Cabinet Area since water leakages in the Bathroom Area only resumed in October 2008. This appeared to be the last written complaint from the disclosed documents in the present litigation.
264. October 2008 P claimed water leakages resumed in October 2008, and for most of the month water dripped from Flat 1E to Flat GE. P claimed she observed water coming from the ceiling in front of the New Cabinet and from the ceiling in the middle of the GE Master Bathroom,[173] and alleged the possible sources were as stated in paragraph 93(a)-(b) above. P claimed to know when dishwashing was done at Flat 1E because soapy water was collected in buckets at the Cabinet Area. P then claimed the water leakages damaged the false ceiling in the GE Master Bathroom, and P and her family had to soak up the leaked water with towels and to work in the dark as short-circuit / black-out often occurred. P also claimed to have spent $5,500 to remove/replace the damaged false ceiling of the GE Master Bathroom. Thus, complaints of active water leakages at the Bathroom Area (which had been muted in the earlier part of 2008) resumed, which meant Kong’s repairs of the waterproofing feature of the Light Well Rooftop were no longer effective, and such rooftop once again suffered from defects/openings that allowed water to seep inside Flat GE.
265. D2/TP1 claimed to have reported P’s complaints to D1/Li as D2/TP1 considered it was D1’s responsibility to fix the water leakage problem. He explained he could not suspend dishwashing and showers, which were ordinary domestic uses of water at the 1E Helper Bathroom and 1E Kitchen with 5 persons (3 adults and 2 children) living at Flat 1E, especially when D1 was not responsive to his requests to have the leakages properly fixed.
XVIII. 2009
266. P’s pleadings averred there was water dripping in October 2008 and water dripping resuming in/about April 2011 with no material facts or particulars pleaded as to water leakage from November 2008 to March 2011. But P gave evidence that during such period there was intermittent water leakage/dripping on an on-and-off basis at Flat GE:
“Well, in fact I would know exactly when they were doing the dishes and because every time when I called [D2/TP1] when he told me that he was washing the dishes and was about to finish washing I would see water leaking, leakage, soapy water leaking. And sometimes in the morning I would hear sound of shower by their maid and there would be water and that came from the place above the [GE Master Bathroom]. [D2/TP1] would from time to time be away from home going overseas. I don’t know where he went but sometimes away from home. Well, during those times there wouldn’t be soapy water leaking down and there wouldn’t be water from shower leaking there.” (my emphasis)
D2/TP1 also confirmed P’s water leakage complaints continued into 2009/2010, but after October 2008 P approached him on on-and-off basis by telephone or in person with less active correspondence. In my view, this suggested the leakages from the External Sink / Shower Cubicle Drainpipes had not been resolved, and the Yard / Light Well Rooftops were defective and not impervious to water (whether due to aging and lack of maintenance of such rooftops and/or whether Kong’s repairs for such rooftops were not quite thorough). I accept P’s explanation for not producing any photographs of Flat GE in 2009/2010, ie she had to take care of Loke Sr was then seriously ill.
267. 2nd TA On 1 April 2009, the tenancy of Flat 1E was renewed by way of the 2nd TA (the terms of which were set out in paragraph 33(a)-(c) above).
268. SCT Action By 2009, P had legal action on her mind. On 2 April 2009, P wrote to the BMO complaining of severe water damage to Flat GE such that she had to move out in the latter part of 2007 for repairs to be done (which costs Ds had yet to reimburse her), but Ds did not fix the problem despite her numerous complaints, so P asked for Chief RE’s advice and/or the BMO’s action to cause Ds to settle her repair costs (D/65). On 29 April 2009, P commenced the SCT Action against D1 and D2/TP1 to recover compensation in the total sum of $47,520 with breakdown as follows for the water damage done to Flat GE on the basis that “since Nov 2006, water leakage from [Flat 1E] from kitchen, maid’s bathroom & back of kitchen” (C2/195):
“Damage to washer machine – replace parts:
two visits + labour work – for washer: |
$5,270
$650 |
| Repairment to damaged ceiling, marble wall: |
$27,000 |
| Hotel stay for one wk during repairmen work: |
$4,900 |
| Removal of re-damage cabinet |
$1,000 |
| Cabinet replacement (quotation) |
$8,700 |
| |
$47,520” |
269. P hoped the SCT Action would cause Ds to face up to the situation and properly fix the water leakage problem. D1 did not file any Defence, but D2/TP1 disputed P’s claim (C2/197). On 22 June 2009, P discontinued the SCT Action (C2/198 and C2/201). She did not immediately bring fresh claim to the Court of First Instance because Loke Sr was quite sick then.
XIX. 2010
270. P claimed water leakages continued intermittently throughout 2010. When Loke Jr returned to Hong Kong in/about March or April 2010, he stayed at Flat GE for a short while, but he found the damp/mouldy condition quite unbearable. Loke Sr passed away on 12 May 2010. Loke Jr moved out in June 2010, but P remained at Flat GE. There was an invoice dated 16 May 2010 (ie 4 days after Loke Sr passed away) by Kong’s in the total sum of $4,700 for “清折間牆一幅及泥水執爛”, “原有描座位兩個移位安裝” and “石膏板封爛位”.
271. In October/November 2010, substantial renovation works (including water-related works) were carried out for Villa Dorada by Yuen Hing as the Manager’s contractor. There was rain on 16-18 October 2010 (B1/61). On 16 October 2010, P emailed Stella to say there was again water leakage from Flat 1E (D/66). On 18 October 2010, Stella emailed to ask P whether she would mind “let us arrange the Contractor or the AP to come into your property to inspect the source? As they can provide professional idea and proposal to solve the problem completely” (D/67). Stella was plainly referring to Yuen Hing, but P did not accede to Stella’s suggestion. On the same day, P replied by email (D/68) to say she was extremely busy, to complain about her insomnia[174] and reduced work productivity during the day, and to insist the water source was from the 1E Helper Bathroom with heavier leaking “in the morning when I hear their maid getting up and at night when she washes”:
“…… Actually the water starts more than about a week ago, after I heard some noise coming from the top/back of their house (I am not sure if they had done anything lately. The tenant knows very well where the leaking is, because even the government had tested it before, and see the coloured water coming thru to my flat, ……”
On 20 October 2010, P emailed photographs of the GE Master Bathroom showing the damaged ceiling to Stella (C1/84-86), and threatened to take legal action if there was no improvement (D/69). By 2 other undated (but presumably issued in October 2010) emails to Stella, P:
| (a) |
complained that “[the] water is heavy in the morning and at night” in the GE Master Bathroom causing dripping sound such that P had to turn on the dryer but the noise caused her to have sleepless nights, so she asked Stella to see if the 1E Helper Bathroom would not be used until the leakage was fixed, and urged the Building’s owners to take action against D1 (D/70); |
| (b) |
updated Stella on the worsening situation, expressed concern the ceiling of the GE Master Bathroom would fall down soon with photographs attached (C1/87-88), and urged for action by D1 (D/71). |
272. On 26 October 2010, Ronny Ho (“Ronny”) for Chief RE sent letter to Flat 1E for attention of “Ms Lulu” as follows (D/75):
“Please be informed that we received the complaint from the owners of [Flat GE] regarding water leakage problem appeared in the bathroom rooftop [which P claimed referred the false ceiling of the GE Master Bathroom] on 16th October 2010. Please kindly fix the leakage problem within SEVEN days and considerate to restore the bathroom top of the downstairs. …..” (my emphasis)
P complained that Ds did not take any remedial action. D1 thought she received this letter, but there might be a time lag as she only collected letters from Wong every now and then. D1 did not reply to Chief RE’s letter. On the same day, P complained to the FEHD of water leakage from Flat 1E to Flat GE (C2/285 and D/105).
273. On 23 November 2010, Ronny for Chief RE sent letter to the owners/occupants of Flat 1E as follows (D/76):
“Please be informed that we still received the complaints from the owners of [Flat GE] regarding the water leakage problem in the bathroom ceiling still existed and caused trouble and inconvenience to them
Please kindly fix the leakage problem within SEVEN days and to restore the bathroom ceiling of [Flat GE]. Otherwise, the owners of [Flat GE] would go ahead to sue for their loss. ……”
D1 received such letter from Wong. She did not reply because by that time (as discussed in paragraphs 277 below) she had heard from Wong that an external pipe had burst. But in the meantime, given the danger posed by the water leakages, Chief RE’s staff removed the lights from the GE Master Bathroom (C1/95).[175]
274. From the above account, it was plain that active water leakage complaints had resumed at the Bathroom Area, and P particularly criticised the leaking/defective Shower Cubicle Drainpipe with heavier leaking at the Bathroom Area in the morning and at night when D2’s/TP1’s helper did her washing.
275. FEHD’s Colour Test On 2 November 2010, FEHD’s staff visited Flat GE to investigate water seepage at the Bathroom Area. Colour Test was done at the drainage outlets of bathroom A (ie the 1E Helper Bathroom) [176] and bathroom B (ie the 1E Master Bathroom)[177] of Flat 1E (D/105). [178] On 4 November 2010, FEHD’s staff collected 2 samples from the GE Master Bathroom for chemical analysis, and the relevant colour-dye found indicated “a branch wastewater pipe connected to floor drain of Bathroom A [ie 1E Helper Bathroom][179] in respect of [Flat 1E] [“Helper FD Drainpipe”] was defective” (D/105-106 and C2/285-286). But according to FEHD’s investigation report dated 12 June 2017, “it was suspected that the seepage area of [Flat GE] involved [UBW] and the above condition was then construed as screen-out case. In addition, the above condition was also referred to Buildings Department for follow-up action on 22.12.2010”.
276. D1 could not remember whether she had sent a contractor to Flat 1E in response to the FEHD’s finding, but believed “[the] contractor, I think, was asked to go” as usual, and such contractor would either have reported there was no defect in which case nothing would be done or there was a defect in which case he would have been instructed to rectify the same. But in my view, any works at the 1E Helper Bathroom would not have remedied the defects of the External Shower Cubicle Drainpipe and the external section of the Helper FD Drainpipe on/above the Light Well Rooftop (“External Helper FD Drainpipe”) before the latter was repaired by Yuen Hing as discussed below.
277. External Helper FD Drainpipe D1 said that in October/November 2010 Wong already told her there was water leakage from an external pipe outside Flat 1E. I find Chief RE asked Yuen Hing to repair the burst/ damaged external branch waste water drainpipe at the Light Well Rooftop upon its exit from the 1E Helper Bathroom, and Yuen Hing gave a quotation dated 24 November 2010 to Stella (“YH Quotation”, C2/191-1):
“項目 |
內容 |
數量 |
單位 |
單價HK$ |
金額
HK$ |
1
1.1 |
G/F
清折及更換外牆入室內天花位置有問題之吋半鉛水喉
[4 photographs] |
1 |
單 |
7,000.00 |
7,000.00 |
| 1.2 |
完工後試水 |
1 |
單 |
400.00 |
400.00 |
| |
|
|
|
總額: |
HK$7,400.00 |
敬請留意以下備註及條款:
……
付款條件
1. 合約金額全數之50%訂金
2. 餘數50%完工後3天內付
工程條文
……
4 報價有效期: 一個月
……”
I note 1 of the 4 photographs in the YH Quotation (“YH Photo”) depicted a short branch pipe/drain on the Light Well Rooftop that entered/exited an external wall and marked by a circle (“Circled Pipe”).[180]
278. Ho was unable to come to any firm conclusion as to the nature/use of the Circled Pipe, but in any event I find myself unable to rely on his evidence in this respect:
| (a) |
Ho was unsure whether the Circled Pipe was a pipe or a drain as the YH Photo was quite blurred and the YH Quotation did not describe its use, but he thought the description in item 1.1 of the YH Quotation suggested it was a communal galvanised steel water supply pipe (鉛水喉) with a small 1½-inch diameter. |
| (b) |
Ho was unsure whether the short branch pipe/drain that exited/entered an external wall at the top right of photograph 0484 10l at B4/881 and photograph 0435 10n at B4/882[181] was the Circled Pipe. |
| (c) |
At one point, Ho said it was reasonable to say the Circled Pipe was the Helper FD Drainpipe because Chief RE paid for its repair, but he had reservations upon learning it was D1 who ultimately paid such costs. |
| (d) |
Ho believed the Helper FD Drainpipe and the Shower Cubicle Drainpipe exited the external wall of the 1E Helper Bathroom onto the Light Well Rooftop respectively as 1st and 3rd of the 4 short branch drainpipes shown in photograph 0434 10(o) at B5/882, but he could not be sure whether the 3rd short branch drainpipe was truly the External Helper FD Drainpipe. |
279. I prefer Wu’s evidence that the burst/damaged external pipe was a branch waste water drainpipe (ie the External Helper FD Drainpipe) and not any freshwater supply pipe as he first assumed on the basis of the description in item 1.1 of the YH Quotation (“清折及更換外牆入室內天花位置有問題之吋半鉛水喉”). Without studying the YH Photo, Wu at first thought “鉛水喉” referred to galvanised steel pipe that was normally used for water supply pipes. But after hearing witness testimony at trial and correlating the rather blurred YH Photo and his own photographs, Wu became certain it was not the case. Wu drew attention to the left lower corner of photograph 0484 10l at B5/881 which showed a branch waste water drainpipe exiting the external wall of the 1E Helper Bathroom to connect to another drainpipe, and photograph 0434 10(o) at B5/882 which gave a bird’s eye view of such drainpipe (marked “A” on Exhibit D1-5). I accept these 2 photographs and the YH Photo showed the same area, and the Circled Pipe in the YH Photo was pipe “A” in Exhibit D1-5 that was connected to the floor drain of the 1E Helper Bathroom.
280. I find that since the Helper FD Drainpipe served Flat 1E, Chief RE tried to have D1 bear the repair costs for the External Helper FD Drainpipe, but D1 refused to pay as she suspected it was damaged by Yuen Hing during their renovation works (including water-related works) for Villa Dorada. In my view, it was Chief RE (not P and/or D1) who asked Yuen Hing for the YH Quotation so it was addressed to Stella of Chief RE, and it was Chief RE who gave such quotation to D1 to press for her confirmation to pay the charges, but her confirmation was not forthcoming. I further find it was Chief RE who instructed Yuen Hing to repair the External Helper FD Drainpipe. Although there was no direct evidence as to when such repairs were done, I find they must have been done and paid by Chief RE before 14 March 2011 (or more probably before P repaired the false ceiling of the GE Master Bathroom before Chinese New Year in 2011 – see paragraphs 288 and 290 below) otherwise Chief RE would not have written to D1 on 14 March 2011 to chase her to “reimburse the rectification costs” (see paragraph 286 below).
281. As Ms Wong pointed out, there was little evidence of how the External Helper FD Drainpipe (ie the Circled Pipe in the YH Photo) was damaged, but any human activity on the Light Well Rooftop might cause such damage. In view of the temporal proximity between the aforesaid works by Yuen Hing (being the only likely human activity on the Light Well Rooftop at the time), given (a) the presence of the communal and private drainage systems at/above such rooftop, (b) the lack of proper access to such rooftop for regular cleaning, maintenance and repair, and (c) the damage to the External Helper FD Drainpipe on such rooftop, I find it probable that the External Helper FD Drainpipe was damaged by Yuen Hing for which Ds were not responsible. In coming to this view I note the difference in approach by the Manager in dealing with Flat 1E’s external freshwater supply pipe in November 2006 and with the External Helper FD Drainpipe in October/November 2010. In the former case, the BMO through Wong required D1 to get her own contractor to carry out repairs at her own cost which D1 said was quite expensive, but she raised no objection at all. In the latter case, Chief RE was anxious to have Yuen Hing and AP inspect the water leakages in Flat GE to provide a solution, to obtain the YH Quotation for works to be done by Yuen Hing (rather than to have D1 commission her own contractor to carry out works), and to instruct Yuen Hing to carry out the quoted repair works and to pay the cost thereof before D1 gave any commitment to reimburse. This significantly different approach suggested some recognition of responsibility on the part of Chief RE for the damage to the External Helper FD Drainpipe, and further suggested the demand for D1 to reimburse the Manager for the cost of such repairs was a try-on attempt to recoup such cost by asserting the External Helper FD Drainpipe belonged to Flat 1E and hence D1, which fortunately worked for Chief RE as D1 eventually capitulated and paid up to avoid further argument (see paragraph 286 below). In my view and in all the circumstances, it was doubtful whether blame could be laid at D1’s door, and in any event leakage from the External Helper FD Drainpipe had to seep through defects in the Light Well Rooftop in order to enter Flat GE.
282. Mr Fong submitted that even if the External Helper FD Drainpipe were repaired, it would not have resolved any defect in the internal section of the Helper FD Drainpipe embedded in the floor slab and/or at the external wall before it exited the 1E Helper Bathroom onto the Light Well Rooftop, so water could still leak into GE Master Bathroom. I disagree. First, I have found floor infiltration quite improbable (see paragraph 160 above). Secondly, it was the Experts’ common view that water leakage was via the Light Well Rooftop. Thirdly, I find the velocity of the water leakages described in P’s emails to be somewhat exaggerated, but this at least suggested the leakages occurred externally via the less robust/dense Light Well Rooftop instead of via the 1E Helper Bathroom floor slab made of reinforced concrete and designed to be impermeable.
283. Mr Fong submitted there was still water leakage problem at the GE Master Bathroom on 4 July 2011 (see paragraph 305 below), so it was doubtful whether the Helper FD Drainpipe had been repaired. I have found Yuen Hing carried out repairs to External Helper HD Drainpipe on/before 14 March 2011, but during the 06/11 Incident on 23 June 2011 there was leaking at, say, the GE Master Bathroom. In my view, the sequelae of the 06/11 Incident necessarily contributed to the observed water leakage problem at the GE Master Bathroom (that had yet to properly dry out) on 4 July 2011. Further, there was no reliable evidence that I can accept that the External Helper FD Drainpipe was not properly repaired and had continued leakages.
284. I have also reminded myself there was no information that the chemical analysis of the 2 plaster samples extracted by the FEHD’s staff from the GE Master Bathroom revealed relevant colour-dye in the colour- dye water poured into the shower cubicle drain hole in the 1E Helper Bathroom during the FEHD’s Colour Test in November 2010. But since P insisted there was correlation between taking showers upstairs and leakage of soapy water downstairs even in October/November 2010 (see paragraphs 271-274 above). I am not persuaded the External Shower Cubicle Drainpipe had been repaired and its defects cured. Further, the above account also showed that from October 2008 until late 2010 there was expansion of the Bathroom Area that was affected by water leakages, but only 2 plaster samples were extracted by the FEHD’s staff. Save for a photograph in C2/194, there was little information as to the precise locations where these 2 plaster samples were extracted. With expansion of the affected area, it was also unclear whether these 2 plaster samples were taken from the relevant water route(s) for particular leakages from the External Shower Cubicle Drainpipe. In light of other evidence from P as aforesaid and in all circumstances, including (a) absence of evidence from D1/Li that their contractor ever went onto the Light Well Rooftop to carry out repair/replacement, (b) evidence that leakages resumed in October 2008 notwithstanding repairs by Kong’s in November/December 2007, and (c) evidence that Yuen Hing repaired the External Helper FD Drainpipe in 2010/2011, I find there was still defect in and leakage from the External Shower Cubicle Drainpipe.
285. That said, I accept there were other possible water sources on the Light Well Rooftop, eg the water sources referred to in paragraph 101(a)-(b) above except for the external freshwater supply pipe and the External Helper FD Drainpipe that had been replaced/repaired. Despite Kong’s repairs, deterioration/dilapidation of the Light Well Rooftop upon passage of time led to reappearance of defects in such rooftop in October 2008 with the result that these other water sources again became pertinent for the resumed water leakages at the Bathroom Area. I find P had not excluded these other relevant water sources.
XX. 2011
286. P claimed that in 2011 water leakages continued on-and-off.[182] On 14 March 2011, Ronny for Chief RE sent Chinese letter to D1 with copy to inter alia the owner of Flat GE translated as follows (D/77):
“Requests had been received from [Flat GE] for you to promptly follow up the damaged toilet ceiling in the [GE Master Bathroom] caused by water leakage of water pipe from your unit. [Flat GE] has arranged a contractor [Yuen Hing] to quote for the damaged location (details refer to the attachment).
You are hereby notified. Please reply whether you agree to reimburse the relevant rectification costs within 7 days form the issue of this letter.……”
As I have found above, it was Chief RE and not P who arranged for the YH Quotation. D1 claimed and I accept Chief RE kept demanding for payment, and she finally capitulated and agreed to pay $7,400 as quoted by Yuen Hing.
287. April 2011 On 20 April 2011, Ronny for Chief RE sent Chinese letter to D1 to follow up on their letter dated 14 March 2011, and urged D1 to “satisfactorily repair the damaged toilet ceiling in the [GE Master Bathroom] within 7 days from the issue of this letter. The affected owner reserves all the rights to hold you liable. ……” (D/78). D1 did not respond to such letter.
288. P claimed that in/about April 2011 water dripping resumed and damaged the false ceiling of the GE Master Bathroom that P just re-fixed for the 3rd time since November/December 2007 (see paragraphs 227 and 228(b) above) (ie early 2008 (see paragraph 252 above), October 2008 (see paragraph 264 above) and before Chinese New Year in 2011 (see paragraph 280 above and paragraph 290 below)). But in my view, the water leakages at the Bathroom Area “resumed” in April 2011 for other reasons explained below.
289. In 2011, the Manager engaged Yuen Hing to carry out waterproofing works for the Roof. On 27 April 2011, Stella sent email to P enclosing the schedule for the water flood test for P’s information, and went on to say “[the] test will start on 28th April 2011. The carpark floor will be filled with water, therefore, no person or car can be come in/out from the that area. Thus, please inform YUEN HING if any leakage are found during the testing period” (D/79). So P knew the water flood test was scheduled for 28 April 2011.
290. By an undated email to Stella (D/80), P complained of water leakage to the GE Master Bathroom which became soaked, and the false ceiling “that I had just fixed before the Chinese new year is again damaged for the third TIME” as seen in some enclosed photographs. “…… The manager tonight told me some work has been done today on the water pipe, please look into this, …… the water dripping with non-stop dip-dip sound, how do you expect me to sleep tonight? ……” (my emphasis). I find this email was probably sent on 28 April 2011 given the reference to the Manager and to work done “today” on “the water pipe” since the only works by the Manager were water-related works associated with the water flood test. This was supported by an email said to be dated 28 April 2011 to Stella in which P attached photographs from “last leaking” to be forwarded to “construction workers for viewing this will help them see the structure of my bathroom roof top” (which P said was reference to the ceiling), and she reserved her right to take legal action (D/81). P could not recall what photographs were forwarded to Chief RE’s “construction workers” (eg whether they were the photographs in C1/96-1 – 96-3[183]), but believed they were photographs of the ceiling of the GE Master Bathroom. She claimed to have sent such photographs for the “construction workers” due to frustration with Chief RE and Yuen Hing for not dealing with the problems caused to Flat GE.
291. I find on balance the so-called “resumed” water leakages at the GE Master Bathroom were the result from the water flood test at the Carpark and/or works done “in the water pipe” by Yuen Hing for which Flat 1E and Ds could not be blamed:
| (a) |
According to the FEHD’s investigation in October 2010, Colour Test was done for all drain outlets in the 1E Helper Bathroom in respect of all sanitary fittings and ductings there, and the Helper FD Drainpipe was shown to be defective, but I have found the internal section of such drainpipe was not defective. The External Helper FD Drainpipe was indeed damaged/burst, but it was subsequently repaired by Yuen Hing. |
| (b) |
The water flood test showed the waterproofing layer of the Roof was defective resulting in serious water leakage causing serious water damage to the walls of the bedrooms at the rear of Flats 1E and 2E, but such defective waterproofing layer of the Roof was subsequently repaired by Yuen Hing. In my view, this explained why there was substantial water source (ie from the water flood test on 28 April 2011) that leaked/escaped to other flat units. |
| (c) |
The emails in April 2011 were telling. The email dated 27 April 2011 (D/79) set the scene by announcing the water flood test, which test was temporally close to the water leakages observed at the GE Master Bathroom the following day (see paragraph 289 above). By her undated email (D/80) P referred to Chief RE telling her about work done on water pipe, which suggested Yuen Hing did some plumbing work (but there was no evidence D1’s contractor did any work then) (see paragraph 290 above). More importantly, on 28 April 2011 (the very day of the water flood test), P by email (D/81) asked the “construction workers” to view the “structure of my bathroom roof top” (see paragraph 290 above). In my view, P was plainly asking Chief RE to get Yuen Hing to check the ceiling of the GE Master Bathroom, which in turn plainly demonstrated P’s complaint was not targeted at Flat 1E but at Yuen Hing who carried out the water flood test and some plumbing works. I find the whole tenor of P’s complaints was not against Flat 1E. Further, P must have known Flats 1E and GE did not have any structures above the Light Well Structure, so with the outdoor water flood test, flood water would not have entered Flat GE except via the Light Well Rooftop, and water would not have attacked the GE Master Bathroom from inside the 1E Helper Bathroom. In my view, the fact that leakage from the water flood test on the Roof was seen inside the GE Master Bathroom demonstrated the Light Well Rooftop was not impervious to water. |
292. Periodic tenancy D1 said the 2nd Tenancy expired in April 2011 but D2/TP1 requested a short extension. He and his family subsequently moved out of Flat 1E at the end of June/July 2011. But another water incident happened before they left.
293. 06/11 Incident All parties accepted the 06/11 Incident was a one-off incident that concerned escape of flush water (freshwater) from the flush water inlet pipe that was connected to the cistern in the 1E Guest Bathroom (“Flush Water Pipe”). Flush water supply was pressurised (albeit not high pressure), and flush water first went to a tank on the Roof, and then flowed to the lower floors by gravity, so flush water supply to Flat 1E was under more pressure than flush water supply to Flat 2E.
294. P / Loke Jr claimed that on/about 23 June 2011 the Flush Water Pipe “burst” causing flush water to escape Flat 1E and flood down to Flat GE. Chief RE telephoned but could not reach P, so they sent her an urgent email asking her to return immediately. Stella emailed P to ask Loke Jr to come and have a look because “a toilet pipe breakdown right now” at Flat 1E, and Flat GE was flooded with flush water coming from Flat 1E (D/82). Loke Jr said he was at work when Wong telephoned to tell him a toilet pipe in Flat 1E had “burst”, so he took urgent leave from work to go to Flat 1E.
295. Loke Jr said when he entered Flat 1E with Wong, Yuen Hing’s 龍哥 and his uncle (P’s brother-in-law), he saw water leaking non-stop from the false ceiling all over Flat GE[184] with particularly heavy leakages at the GE Living Area (but not near the front door) and GE Master Bathroom. Loke Jr said water came down in cascades and took whatever route it could, and Wong told him Flat 1E was flooded. Loke Jr did not inspect the “burst” Flush Water Pipe, but both 龍哥 and Wong did (and 龍哥 photographed such pipe), and “佢哋話有條軟膠喉喺上面維修得唔係好好，跟住裂咗，喺嗰度爆咗” (they said there was a soft plastic pipe the repairs of which were not done well and which cracked and burst at that place). P also said Loke Jr told her “a joint in the pipe in the upstairs unit burst”, which was different from previous water leakages that were essentially dripping/dampness and confined to the 3 Areas. It was said after Chief RE turned off the main valve for flush water supply to Flat 1E at the external wall at the Staircase area, the water leakages began to slow down and they eventually stopped. Thereafter, Loke Jr tried several times to contact 龍哥 by telephone and through the Manager (to get his photograph of the “burst” Flush Water Pipe) to no avail.
296. D2/TP1 claimed “a pipe joinder” at the 1E Guest Bathroom “sprang a leak due to high pressure” from the main pipe as a result of renovation works (including water supply works) carried out for Villa Dorada at the time. He was not in Hong Kong at the time, but his wife was although she was not at Flat 1E when the 06/11 Incident occurred. D2/TP1 was told the small pipe connected to the cistern at the 1E Guest Bathroom “burst” and caused flooding (which assertion was consistent with what Loke Jr was told), and his wife saw water on the floor when she returned home. She immediately telephoned Wong “to turn off the water, from outside, I believe” (ie the main valve for the flush water supply) (which assertion was also consistent with Loke Jr’s evidence). According to D2’s/TP1’s witness statement, the leak stopped after a short while, but he did not know if D1 replaced the “burst” pipe. D2/TP1 disagreed the 06/11 Incident was caused by a loosened cock valve (as D1 alleged) or poor maintenance of the Flush Water Pipe.
297. On the other hand, D1 said Wong telephoned her one afternoon shortly before D2/TP1 moved out, and told her water leaked from Flat 1E down the Staircase to Flat GE. She claimed no one answered when Wong first rang the doorbell at Flat 1E, but when the occupants returned home Wong found flush water gushing out as the cock valve of the Flush Water Pipe was loosened, and D1 believed this was D2’s/TP1’s fault/negligence. D1 understood the leakage stopped after the cock valve was properly tightened. D1 claimed she then instructed her contractor to change that part of the Flush Water Pipe the following day to ensure the cock valve would not become loosened again. D1 claimed she had particular recollection of her contractor digging up and dealing with embedded pipes/drains at only 2 areas in Flat 1E (because her contractor told her he might not be able to find tiles of the same colour), one of which was some replacement works in the 1E Guest Bathroom where tiles had to be broken up. I find myself unable to accept D1’s evidence in this respect. I have found there was no digging in Flat 1E for replacing drainpipes, and there were no plumbing works in relation to the 1E Guest Bathroom.
298. According to the Joint Report, the Experts agreed the cock valve of the Flush Water Pipe was loosened, so water came out of the cock valve (until it was tightened) and seeped through the floor slabs that were not required to be impermeable to affect Flat GE. Although at first blush it appeared to support D1’s stance, one cannot forget that the Experts did not have any first-hand knowledge of the 06/11 Incident, and could not inspect the Flush Water Pipe and subject cock valve as they were replaced by D1 in 2011.[185] In such circumstances, Ho testified (and I agree) what the Experts agreed in the Joint Report was based on factual assumptions but they did not know for sure whether the 06/11 Incident was due to loosened cock valve (eg by someone who loosened it) or “bursting” of the Flush Water Pipe (eg as a result of increased pressure in the flush water supply pipe due to water supply works at Villa Dorada).
299. I find there was little evidence to support the loosened cock valve surmise except for what D1/Wu claimed to have heard from Wong (but that was in contrast to what Loke Jr heard from Wong), and I consider “bursting” of the Flush Water Pipe to be more likely:
| (a) |
the leakage occurred when no one was at Flat 1E, so it was unlikely someone loosened the cock valve; |
| (b) |
at that time Villa Dorada was undergoing its water supply renovations resulting in higher water pressure; |
| (c) |
when Stella emailed to P to inform her of the 06/11 Incident, she described it as “toilet pipe breakdown”; |
| (d) |
according to D2/TP1, his wife reported the incident to Wong as “burst” pipe; |
| (e) |
Loke Jr understood from Wong and 龍哥 (of Yuen Hing who carried out the water supply renovations for Villa Dorada), both of whom had been to Flat 1E to view the “burst” pipe (and 龍哥 also photographed the “burst” pipe), that the leakages were caused by a “burst” pipe, which was in contrast to D1’s/Wu’s understanding from Wong that the leakage stopped when the cock valve was closed without pipe-“bursting”, but Wu’s conversation with Wong could not have taken place until much later in 2013, so in the absence of Wong (who was first to the scene) giving evidence and being available for cross-examination, such contradictory hearsay evidence had no significant probative value; |
| (f) |
both Loke Jr and D2/TP1 consistently said the water mains for Flat 1E were turned off to stop the leakage; |
| (g) |
I am not confident with the vague assertion of “loosened” cock valve being the cause of the 06/11 Incident because a cock valve in its usual state would not be entirely closed otherwise it would cut off flush water inlet supply to the cistern altogether, which explained why Wu acknowledged that turning off the cock valve would also have stopped the water leakage even if there was a “bursting” of the soft PVC white pipe; |
| (h) |
in email correspondence after the incident P referred to “fix their toilet pipe” and “broken toilet pipe” which information she must have learned from Loke Jr or the BMO. |
300. I accept a one-off incident may amount to nuisance where there was unreasonable or negligent use of the land and the foreseeability of escape (see paragraph 51 above and footnote 41 above).[186] This is consistent with the views expressed in Clerk & Lindsell on Torts as follows:[187]
“If the landlord retains control of a cistern for the supply of water to flats in his building, he is not liable to his tenants for a burst in one of the water pipes, or an escape of water from the cistern, unless he is negligent. The occupier of the flat in which the cistern is kept is also free from liability in the absence of negligence. Where a water-closet in an upper floor got out of order, without any negligence on the part of the occupier of the upper floor, and flooded the lower floor, the occupier of the upper floor was held not liable to the occupier of the floor below. If water from a burst pipe in one flat causes damage to another flat in the same building, the occupier of the first flat is not liable without negligence.”
In my view, there was paucity of evidence to show (a) unreasonable or negligent user of the 1E Guest Bathroom by D2/TP1 and/or his family, (b) any basis for forseeability of the “bursting” of the Flush Water Pipe, and/or (c) any insufficient repair/maintenance by D1, especially when an ordinary copper pipe wrapped in PVC material ordinarily used as flush water inlet pipe was usually robust enough for its purpose (see footnote 185 above). There was also little evidence to show that Ds or either of them could have prevented the “bursting” of the Flush Water Pipe but failed to do so. Ms Wong also reminded that as between D1 and D2/TP1, D2/TP1 was still in possession of Flat 1E at the time, and no Notice of Disrepair given to D1 before the 06/11 Incident in respect of the Flush Water Pipe. In my view, the 06/11 Incident was a one-off event that happened in the factual context described above, and in circumstances where there was increased water pressure during water supply renovations by Yuen Hing for Villa Dorada for which neither D1 nor D2/TP1 could be blamed.
301. As to the extent of the water damage caused by the 06/11 Incident, the floor immediately outside the 1E Guest Bathroom and in the 1E Living Area was affected. D1 claimed Wong told her the leaked water went out of Flat 1E to the Staircase to flow down to Flat GE, but such description was unreliable given Loke Jr’s evidence that the flooded areas of Flat GE marked in green in Exhibit P3 (including the GE Living/Dining Areas and GE Master Bathroom, “Green Areas”) were quite far away from the front door of Flat GE, hence the leaked water could not have come from the Staircase. This also undermined the reliability of D1’s account of what Wong told her.
302. Wu said water should discharge to a floor drain near to the Flush Water Pipe in the 1E Guest Bathroom (B5/864), but Ho explained (and I accept) that when the Flush Water Pipe burst pressurised flush water would gush out faster than it could be discharged via the 2½-inch floor drain covered by grating, so flooding would occur outside the 1E Guest Bathroom. Wu reminded that kitchen/bathroom floors (but not those of the living/dining areas and bedrooms) were required to be impermeable, so water that flooded to the living/bedroom areas of Flat 1E could seep through the non-impermeable floor slabs to Flat GE, but the speed/extent of the leakages would depend on inter alia the condition of the floor slab and ceiling below (eg whether there were cracks, defects or weak points such as drilled holes) and/or the density or porosity of the reinforced concrete. In my view, the water from the “burst” Flush Water Pipe seeped through the floor slabs into the ceiling soffit of Flat GE and rained/dripped down to the Green Areas. I note the structural ceiling of most rooms in Flat GE was masked by false ceilings and connected by holes that allowed cables/conduits and A/C ductings to pass through as part of the mechanical AVC System, which unfortunately also formed water vessels/routes for water leakages to spread to the Green Areas.
303. Loke Jr, Wong, P’s brother-in-law, Yuen Hing’s workers and BMO’s staff helped to mop/clean Flat GE which was flooded at the time. P said she got home late that night, she emailed Stella at/about 00:03am on 24 June 2011 inter alia as follows (D/83):
“I just come home at this time, I am having a big event at work, and just cannot find time to deal with it this afternoon. I can only call my son, and he also had to leave his work and came to take care of this forever never stopped water problem from upstairs.
Nothing new, as you know, this problem had caused me a lot of trouble; numerous times come home to find water damage to my bathroom, kitchen and maidquarter. Now extend to my living and dining areas and the kitchen. In other words, my whole house is damaged.
……
At the mean time, please keep their source of drainage water shut down, to prevent leaking. Your office’s records may be needed.”
304. P claimed the water leakages continued, and on 26 June 2011 she sent email to report that she woke up at 9:30am that morning “to hear water is dripping at a fast pace down to my living room from upstairs around their kitchen area” (my emphasis) and her home telephone was not working “since a few days ago with the water flooding from upstairs”, and to ask “[please] stop all water running for upstair tenants, they should fix the problem right away for the WHOLE house before using any water” (D/84). On 27 June 2011, Stella replied by email saying she had “passed the message to YUEN HING and asked them to check [Flat 1E]” (D/85). In my view, this water dripping complaint concerned the Cabinet Area, which continued to suffer from water leakages notwithstanding the 06/11 Incident, but this was unsurprising as there were still defects in the External Sink Drainpipe and in the Yard Rooftop that was not impervious to water.
305. By email dated 1 July 2011 to Stella, P asked whether Stella was aware “IF the owner and tenant upstairs are going to fix their toilet pipe (or have any intention to fix the problem)” because she could not repair Flat GE if they had not done so, and claimed “[the] fixing work should be comprehensive and not just temporarily patching whatever, needed for that time being” (D/86). By email dated 4 July 2011 to Stella, P claimed that “since the broken toilet pipe from up stairs” her home telephone did not work and the electricity plug to the GE Master Bathroom did not work. P claimed “the house condition is not suitable for living, and the problem must be dealt with by upstairs” (D/87). So on 4 July 2011, Ronny for Chief RE wrote to the occupants of Flat 1E as follows (D/96):
“Please be informed that we still received the complaints from the owners of [Flat GE] regarding the water leakage problem in the bathroom ceiling still existed and caused trouble and inconvenience to them (see attachment).
Please kindly fix the leakage problem within TEN days and to restore the bathroom ceiling of [Flat GE]. Otherwise, the owners of [Flat GE] would go ahead to sue for their loss.”
On the same day, Ronny for Chief RE wrote to the owner of Flat 1E as follows (D/97):
“管理處接獲E座地下書面投訴 貴單位喉管經常出現漏水情況，引致其單位的天花嚴重損毀(見附件)。
現特函通知 貴業戶請於 此函發出之十天內妥善地維修破裂之喉管、維修E座地下損毀的部份至原狀，以免對E座地下業戶造成滋擾。有關事件將轉交屋宇署及食環署跟進。受影響之業戶保留追究責任及賠償之權利。……”
On the same day, Stella emailed P enclosing copy letter to “Flat 1E” and informing P she had “asked YUEN HING to come and check the matter for you” (D/88). By an undated email to Stella, P thanked the Manager for action taken, but said she would have to take legal action for damage caused to Flat GE. D1 realised Chief RE’s letter dated 4 July 2011 (D/97) referred to the 06/11 Incident, but she did not give any reply as “…… I had the water pipe valve fixed because it was claimed that the valve was loosened and I instructed my contractor to tighten it up and change it”.
306. In my view, P’s complaints were essentially about the sequelae from the 06/11 Incident (eg telephone and electricity plug malfunction) which had to be resolved before she could carry out repairs. But the sequelae from the 06/11 Incident could not be fully remedied unless the Green Areas were fully dried out. Loke Jr said the 06/11 Incident caused a lot of damage to Flat GE as the leaked flush water dampened a lot of the walls inside Flat 1E, and damaged expensive hi-fi systems, furniture and personal effects.[188] P claimed the condition in Flat GE worsened after the 06/11 Incident with irritating rotten smell and mould growth on the moist surfaces of dampened walls, wooden cabinet and tiles, and P / Loke Jr both claimed the entire Flat GE was damp and uninhabitable due to the flooding. Loke Jr said P was under a lot of mental stress during this period which adversely affected her health.
307. I accept P was affected by water damage to Flat GE as a result of the 06/11 Incident. But freshwater was used for the Building’s flush water supply, so Wu opined the water damage caused by the 06/11 Incident could be rectified by completely drying out Flat GE with adequate ventilation. In my view, it was plain from P’s / Loke Jr’s accounts that Flat GE did not dry out properly, and inefficient ventilation at Flat GE contributed to the persistent dampness/wetness. If Flat GE became uninhabitable, Ds could not be faulted for the occurrence of the 06/11 Incident, and P’s failure to properly clean and dry out the leakage/flooding compounded by inadequate ventilation played a significant role that led to Flat GE’s uninhabitable state.
308. D2/TP1 left D2/TP1 and his family moved out of Flat 1E in late June or early 2011 shortly after the 06/11 Incident. Li said thereafter he no longer dealt with matters concerning Flat 1E as he and D1 separated by that time.
309. New tenancy D1 said in/about November 2011 she leased Flat 1E to a new tenant introduced by D2/TP1.[189] D1 said no one lived at Flat 1E between D2’s/TP1’s departure and the new tenant’s arrival, and she did not recall sending her contractor to Flat 1E when it was vacant. I have found that the bathtubs at the 1E Master and 1E Guest Bathrooms were changed to shower cubicles at the request of the new tenant (see paragraph 143 above). D1 did not recollect any renovation works to the 1E Helper Bathroom, but disclosed that during the tenancy the new tenant often carried out some works for Flat 1E, and would then tell D1 the cost involved and deduct the same from the rent payable. It was unclear what those works were, and whether they involved the external/internal drainage system of Flat 1E (eg the installation of the White Pipe on the Yard Rooftop and/or repairs to the drain next to the toilet bowl and embedded in the floor slab of the GE Master Bathroom visualised during Wu’s inspection (B4/740)).
XXI. 2012
310. P moved out of Flat GE in early 2012 to another flat (which she said was about the size of the GE Master Bedroom) in the same locality. She claimed to have remained at Flat GE for 6 months after the 06/11 Incident even though it was uninhabitable in order to look for alternative accommodation in the same locality. But P gave no further particulars of her new accommodation including its address, layout, actual size, appointment and rent (if any).
311. Thereafter, no one lived at Flat GE, and there was no ventilation (ie the ACV System and Exhaust Fan were not switched on) except for 2-3 visits by P (until June 2014) and Loke Jr’s occasional visits (once a month in the first year and thereafter once every several months) to empty the water bucket of the single dehumidifier (a bit larger than a regular dehumidifier) placed at the pillar near to the GE Kitchen at location “A” marked on Exhibit P3. Although the dehumidifier was switched on, Loke Jr found the water bucket was full and the dehumidifier had automatically stopped on each of his visits. In my view, given the serious dampness/wetness at Flat GE it would not have taken long to fill up the water bucket and cause the dehumidifier to stop automatically. Loke Jr would turn on the ACV System during his visits (usually 3-4 hours each time), but would turn it off when he left. In my view, the dehumidifier probably stopped for most of the time between Loke Jr’s visits and provided wholly inadequate ventilation for Flat GE when it was still not fully dried out after the 06/11 Incident and when it was flooded with foul water after the incidents in 2013 described in Part XXII below. Given such poor arrangements, it was unsurprising the condition of Flat GE worsened over time and become more humid, mouldy and smelly (see photographs taken by Loke Jr during his visits in C1/146-151). Indeed, as explained by Ho, once the ACV System was turned off and Flat GE was left closed, (a) condensation and rising damp would be significantly accelerated, and (b) the process of water damage would be also accelerated if no one dried up any seepage through defects in the GE Structures and rising damp from the floor. I find the dilapidated condition of Flat GE as found by the Experts in 2013/2014 was largely the result of (a)-(b) above.
312. Loke Jr claimed there were various leaks in 2012 mainly in (a) the GE Master Bathroom, (b) GE Master Bedroom (from the ceiling at the corner of the cabinets near the door to the GE Master Bathroom marked as location “B” on Exhibit P3, but there was no leakage on the side where the custom-made bed was) and (c) GE Living Area (from the ceiling near the pillar next to the GE Kitchen being location “A” on Exhibit P3 but not at Location X), but he also gave evidence that he would walk around Flat GE on his visits and did not notice any specific water leakage incidents. I note with interest the leakages Loke Jr allegedly noted on his visits to Flat GE were part of the Green Areas and not specifically the Cabinet/Bathroom Areas. In my view, the so-called leaks in 2012 were more likely due to water attack and dilapidations following the 06/11 Incident as Flat GE was not fully dried out, which state encouraged mouldiness, wetness and deterioration. Further, as seen in paragraph 323 below, other than the sequelae from the sewage blockage incident in 2013, it appeared there were no longer continued leakages at the ceiling at the Bathroom Area.
313. On 17 February 2012, P through her solicitors issued pre-action demand letters to Ds to “replace the broken pipes at once and pay a reasonable amount of damages to [P] by way of recompense” (D/99-103). P commenced the present action against Ds on 26 March 2012.
XXII. 2013
314. Mr Fong confirmed the water leakage incidents in 2013 that occurred after P issued the Writ of Summons were not part of P’s claim. That being the case, Ds would not be liable for loss and damages arising from such supervening incident(s) and their sequelae in relation to the GE Master Bathroom and their effect on the rest of Flat GE.
315. Sewage blockage P claimed another major water-related incident occurred on 28 April 2013 (which was a clear day), but she was unable to leave work to return to Flat GE. Wong telephoned Loke Jr who was at work that day and told him there was toilet blockage at Flat 1E with possible major water leakage at Flat GE. Loke Jr immediately went to Flat GE and discovered water leaking from the false ceilings of the GE Master Bedroom and GE Master Bathroom which were the only affected areas.[190] Loke Jr said Wong told him that only Flat 1E suffered from toilet blockage. A report was made to the police, and staff of the Drainage Services Department were called to the scene. Loke Jr said such staff checked the sewage pipes connected to the Outside Manhole, they informed him by telephone there was no blockage at the Outside Manhole from Villa Dorada or major surrounding streets.
316. On the other hand, D1 was in Mainland China on 28 April 2013 when the secretary of the new tenant at Flat 1E told her foul water was found flooding from the 1E Guest Bathroom to the bedrooms at the rear of Flat 1E. D1 asked the new tenant to engage a contractor to check Flat 1E whereupon it was discovered that Flat 1E’s drainpipes were diverted to the Block A Manhole which suffered a blockage with waste water backflowing to Flat 1E. D1 was told by the new tenant of Flat 1E that (a) the 1E Master Bedroom was not affected by overflowed foul water and no major repair works were done there, (b) wooden flooring of part of the corridor and 2 bedrooms at the rear of Flat 1E was damaged/replaced, and (c) the Light Well Rooftop over the GE Master Bathroom was flooded with foul water, which leaked via defects in such rooftop into the GE Master Bathroom and from there to the 1E Master Bedroom.
317. In the Joint Report, the Experts agreed as follows:
| (a) |
This water seepage incident was caused by blockage at the Block A Manhole. As foul water from Flats 2E and 1E and the Roof could not be discharged to such manhole due to such blockage, foul water backflowed and entered the 1E Guest Bathroom and flooded the floors of the 1E Guest Bathroom, the corridor and 2 bedrooms at the rear of Flat 1E. The new tenant of Flat 1E also noted the Light Well Rooftop was flooded, and Loke Jr video-recorded the water seepage in the GE Master Bathroom (partly in the Light Well Structure) and in part of the adjacent GE Master Bedroom, which showed the Light Well Rooftop was defective in allowing flood water to enter Flat GE. This explained why such leakages could not be stopped by turning off the main water supply to Flat 1E. |
| (b) |
The new tenant of Flat 1E engaged a plumber who found out the blockage at the Block A Manhole and who cleared such blockage. D1 then caused her contractor to clean up Flat 1E, to replace the timber flooring for the corridor and 2 bedrooms at the rear of Flat 1E (but no replacement works were required for the 1E Master Bedroom and living/dining areas), and to install a non-return valve at one of the drainpipes to avoid recurrence of flooding due to blockage at the Block A Manhole. But there was no indication as to whether or not P carried out necessary remedial works such as cleaning and drying up the areas dampened by foul water in Flat GE. |
318. I prefer and accept D1’s evidence and the Experts’ agreed findings/opinion. Flooding due to blockage of the Block A Manhole was borne out by the written report of the plumber Ching Kee Drainage Services Company (C2/230) that confirmed a lot of used wet wipes (which would not dissolve like normal tissue paper) caused blockage at the Block A Manhole, and such blockage had to be cleared for use after the wet wipes were removed by hydro-jetting services (C2/192-193). Indeed, this was not inconsistent with Loke Jr’s evidence:
| (a) |
Loke Jr said that on the following day (ie 29 April 2013) the manholes inside Flat GE were uncovered (ie the Courtyard and Light Well Manholes) to check for blockage, but no blockage was found (C1/97-100 and 137-140). In fact, it was the Block A Manhole (that was not connected to the drainage system of Flat GE) that was blocked. |
| (b) |
Loke Jr claimed pumping of the toilet blockage at Flat 1E continued until late evening on 2 May 2013, and he took photographs of the plumber’s truck and the pump that worked to clear the blockage (C1/141-145). This echoed the hydro-jetting service performed by the plumber for clearing the blockage at the Block A Manhole. |
319. The Experts agreed the diversion of the waste water drainpipes from the bathrooms of Flats 1E and 2E to the Block A Manhole was due to erection of the Light Well Structure and such diversion increased risk of blockage due to extra pipe bends and longer travel distance for waste water to reach a manhole (see paragraph 16(a) above). Indeed, regulation 28(1) of the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations Cap 123I provides that soil pipes and waste pipes shall not have bends therein, except where unavoidable. Further, the non-dissoluable materials foreign to the drainage system found inside the Block A Manhole were the result of misuse of sanitary fitments, but it could have been the fault of the occupants of any flat unit in Blocks A and E (except Flat GE), and there was no evidence it was Flat 1E that perpetrated such misuse.
320. Mr Fong complained that by April 2013 Flat GE would have been in a bad state, but D1 never offered to help P clear the foul water from Flat GE. I am not persuaded there was any clear/cogent evidence that (a) it was D1 and/or Flat 1E that modified Flat 1E’s waste water drainpipes to connect with the Block A Manhole since such modification was to accommodate erection of the GE Structures (which would only benefit Flat GE and not Flat 1E), and/or (b) it was D1 who caused or contributed to the blockage of the Block A Manhole which served various flat units apart from Flat 1E. Further, it was the new tenant rather than D1 who was in control of the use of the sanitary fitments in Flat 1E.
321. Ho also agreed it was important to clean up any flooding by foul water[191] which was more likely to promote bacteria and mould growth. P claimed Flat GE was so seriously damaged that “I simply didn’t know how it could be cleaned up”, so she did nothing. But I note the new tenant of Flat 1E (which suffered more from the backflow of foul water) cleaned up the foul water and carried out repairs (see paragraphs 316-317 above). P then claimed she could not renovate Flat GE or repair the damage done thereto whilst the water leakage subsisted, and had to wait until the water leakage from Flat 1E was properly/completely rectified before she renovated/refurbished Flat GE. But I am unable to accept this contention (see paragraph 312 above and paragraph 323 below). When Ho inspected Flat GE on 28 August 2013 (ie Flat GE left vacant for about 18 months) and on 24 June 2014 (ie Flat GE left vacant for about 2½ years), Ho noted obvious deterioration in the condition of Flat GE with more mould growth and stronger foul odour. He noticed mould attack as a result of bacteria and moisture at the foot of a pillar in the GE Living Area due to foul water on the floor that had not been cleared up. Wu also said whilst there was no big difference to water damage between his 1st inspection of Flat GE on 13 January 2014 and last inspection on 21 July 2014, mould growth was more significant.[192] I find this was mainly the result of poor ventilation, moisture replenishment from rising damp and active water seepage at the GE Structures, and more importantly, P’s decision not to clean up the foul water at Flat GE which encouraged bacteria and mould growth. Indeed, Ho admitted that if Flat GE was unventilated from early 2012 and foul water from the 28 April 2013 incident was not cleaned up, it would cause significant acceleration of damage to decoration and furniture of Flat GE.
322. FEHD On 28 April 2013, the government hotline received a complaint of water seepage at Flat GE. Initial information collected by the FEHD from the complainant from telephone inquiry on 2 May 2013 was that there was water stain (in contra-distinction to continuous dripping or serious damp patch) at the ceiling of “bathroom” (presumably the GE Master Bathroom). On 8 May 2013, a health inspector of the FEHD conducted an investigation at Flat GE, there was apparent moisture but no dripping. He measured the MC of the GE Master Bathroom which exceeded 35% and photograph record was taken. On 26 June 2013, Colour Test was carried out at the drainage outlets in the 1E Guest, 1E Helper and 1E Master Bathrooms. The FEHD tried to contact the complainant on 27 August 2013 for follow up inspection of Flat GE, but there was no reply. P gave no explanation as to why she did not reply to the FEHD for follow up inspection of Flat GE to see if colour-dye water was seen at Flat GE.
323. The Experts agreed P’s complaints as to water leakages/ marks at the Cabinet/Bathroom Areas ceased at the latest by the time of their joint inspection on 13 January 2014 (B8/1405-1406 and 1436). But the question was for how long the water leakages ceased before then. It seemed from P’s complaint to the FEHD and the inspection by the FEHD’s staff in May 2013, ie after leakages from the sewage blockage incident had ceased (but the foul water had not been cleaned up), that there was no more dripping or serious damp patch in the Bathroom Area and/or evidence of continued leakage from the External Shower Cubicle Drainpipe. In my view, notwithstanding the sequelae from the water-related incidents in 2013, the leakage from the External Shower Cubicle Drainpipe had ceased by May 2013, but the situation at the Cabinet Area was not so clear.
324. Bedroom incident D1 claimed that in/about April 2013 she also received a complaint from her new tenant that the walls of the 2 bedrooms at the rear of Flat 1E were dampened, and it was later found that the same areas in Flat GE were also wet. D1 claimed Wong told her the water seepage stopped after the waterproofing layer on the Roof was repaired. In the Joint Report, the Experts agreed that due to floor leakage at the Roof there was water intrusion to Flats 2E, 1E and GE. At Flat GE, “the wall which should be affected in the incident had already been removed for the erection of the [Yard Structure], but the ceiling was dampened”. The Manager caused their contractor to make good the waterproofing work of the Roof, and water leakage ceased upon completion of such works. But there was no indication as to whether or not P carried out the necessary remedial works to have the dampened area dry out completely. D1 claimed (and I accept) that apart from the flooding due to the 06/11 Incident and the 2 water-related incidents in April 2013, she did not receive any further complaint of water leakage from Flat GE or her new tenant.
XXIII. 2014
325. The Experts agreed that even though water leakages from the External Sink / Shower Cubicle Drainpipes had ceased latest by January 2014, the condition of Flat GE was still damp/wet and dilapidated/mouldy due to (a) defects of the GE Structures that allowed water to come through, (b) water coming from the floor/ground as water bubbles trapped between the ground floor concrete slab and the White Floor Cover (which had nothing to do with P’s complaints) and/or (c) water coming via defects from, say, the glazed glass block tiles of the external wall of the Courtyard Structure, so there was water replenishment at Flat GE that was without ventilation/maintenance, which led to water damage and serious condensation / mould growth even in areas not affected by water seepage.
XXIV. EXPERTS
326. It is useful at this stage to give a brief account of the Experts’ role and involvement in site inspections in order to explain why I prefer Wu’s evidence over Ho’s unless otherwise stated. Such account also coloured P in a poor light as she actively tried to interfere with Wu’s proper inspection at the joint examinations.
327. Notwithstanding P’s non-reliance of the laboratory chemical analysis results of the plaster samples collected from Flat GE and the infrared thermographic scanning results by Infrascan, the Experts had given evidence as to the surrounding factual circumstances (eg how the plaster samples were collected from Flat GE) which evidence remained admissible for assessing the Experts’ findings/opinion.
328. On 24 July 2013, Registrar KW Lung granted leave for P and D1 to adduce expert surveyor evidence with exchange of solo reports, and further leave for the Experts to arrange joint meeting on without prejudice basis and to compile a joint report. According to the Joint Report dated 29 September 2014, Ho was instructed by P’s solicitors to (a) investigate into the water seepage incidents at Flat GE between 2006 and 2013, (b) carry out destructive and non-destructive tests if necessary, (c) identify the sources/ causes of water leakages, and (d) estimate the costs of repair works for the alleged damage to Flat GE (paragraph 3.1), and Wu was instructed by D1’s solicitors to (i) investigate the water seepage incidents at Flat GE between 2006 and 2013 by means of visual inspection and non-destructive tests when necessary, (ii) identify the causation/source of water leakages, and (iii) identify the causes for the alleged damage to Flat 1E (paragraph 3.2). As seen below, the solicitors’ correspondence revealed that Ho never proposed any destructive test, which was outside the scope of investigation for the Experts’ joint inspections as agreed/ understood between the parties.
329. When pressed, Ho could not be certain when he received instructions to carry out any destructive test, but he did not include any such test (or even any non-destructive Colour Test and/or water ponding test) in his test plan put forward to D1’s solicitors on 24 May 2014. Ho tried to brush this aside by saying “…… [maybe] I was careless and forgot to write it down clearly”. Not only am I unable to accept such explanation, it spoke ill of Ho’s reliability and professionalism. But this was not the end of the matter. On 5 July 2014 (ie after removal of the false ceilings at Flat GE), D1’s solicitors asked for clarification of Ho’s test plan. On 7 July 2014, P’s solicitors confirmed Ho’s original test plan would suffice. In my view, P’s solicitors must have consulted Ho before giving such reply. Indeed, D1’s solicitors in their letter dated 19 July 2014 gave further opportunity for P’s solicitors to clarify Ho’s test plan, but there was no response. In light of such correspondence, I am unable to accept that P’s solicitors instructed Ho to carry out any destructive test, especially when Ho kept insisting he was only allowed to carry out visual inspection and no test at all at Flat 1E. Ho’s such allegation was, in my view, just a poor attempt to justify his extraction of plaster samples from Flat GE outside agreed protocol.
330. As alluded to above, on 24 May 2014, P’s solicitors sent to D1’s solicitors Ho’s proposed test plan for a further joint survey for 3 days, ie visual inspection, taking measurements with laser measuring tape, and MC survey with protimeter (D/107-108). On 16 May 2014, D1’s solicitors asked whether the false ceilings at Flat GE would be removed, and indicated Wu’s wish to attend Flat GE immediately thereafter (D/109). This showed that from an early stage D1/Wu recognised the need to check the structural ceiling and ceiling soffit at the first opportunity before any contamination by the plentiful condensation / mould growth in Flat GE. On 28 May 2014, P’s solicitors replied P would arrange to remove the false ceilings (D/110). On 28 May 2014, D1’s solicitors reiterated “[Wu] should be present during the said removal for our record and inspection purpose” (D/111). On 20 June 2014, P’s solicitors confirmed P’s contractor would remove the false ceilings on 24 June 2014, and enquired “if your representative/expert would be present during the said removal” (D/111/-1). On 21 June 2014, D1’s solicitors confirmed “[Wu] …… shall be present during the whole process of the removal” (D/111-2).
331. In my view, P plainly knew of the joint inspections on 24-25 June 2014 for she made arrangements for a contractor to remove the false ceilings at Flat GE that day. Indeed, paragraph 28 of P’s witness statement stated she arranged for the false ceilings at Flat GE to be removed “[in] order to allow the parties’ respective experts to conduct proper inspection and tests at [Flat GE]”. I reject (a) P’s alleged understanding that the inspection on 24 June 2014 as merely “[to] let [Ho] to have a thorough inspection of the leakage areas”, and/or (b) her claim that she did not realise Wu would be present, especially when she knew from P’s solicitors there was a court order for the Experts to carry out joint inspection of Flat GE. This flied against the detailed arrangements made by P’s solicitors on her behalf with D1’s solicitors for over a month. Regrettably, P deliberately played down her knowledge of Wu’s right to participate in the joint survey to justify her conduct in excluding him from Flat GE on 24-25 June 2014.
332. P was present at Flat GE on 24 June 2014, but I reject her allegation that she only knew Wu was one of “the upstairs people” with no idea as to whether he should be present at the inspection. Ho was not present at Flat GE on 24 June 2014 due to illness,[193] but he had briefed Sky that day was for joint inspection by the Experts, so Sky (who also knew she could check with P’s solicitors) could have explained to P at the scene. But P insisted she did not receive firm clarification despite enquiries with the representative of P’s solicitors at the scene and despite such representative had rounds of telephone calls with his principal who in turn had telephone conversations with D1’s solicitors. In light of the aforesaid inter-solicitors’ correspondence which left no room for misunderstanding, I cannot accept P’s claimed impression that P’s solicitors “…… didn’t know whether the other person or people should be there, but in the end they said that the person or those people shouldn’t be there”. P admitted she asked Wu to exit Flat GE and to stand at the doorway when the workers dismantled the false ceilings, and complained against Wu returning inside to take measurements at the structural ceiling after removal of part of the false ceilings. In my view, Wu was just doing what had been indicated to P’s solicitors, and P’s solicitors and Ho knew before the joint inspection Wu considered it was important for him to witness and record removal of false ceiling. I find P knew that 24 June 2014 was for joint inspection by the Experts, but she tried to stop Wu from being at Flat GE during and/or immediately after removal of the part of the false ceilings on the false pretext that she had to await confirmation from her solicitors as to whether or not Wu was allowed to be there that day.
333. This was bolstered by (a) Ho’s evidence that he learned on 24 June 2014 that P stopped Wu from carrying on his work and Wu complained he was prevented from inspecting Flat GE upon partial removal of the false ceilings, (b) Sky’s awareness that Wu was at Flat GE for the purpose of joint inspection (and as she was responsible for liaison work she should have made known to P Wu was entitled to participate in the joint inspection), and (c) P’s conduct in not bothering to find out later from her solicitors whether Wu should have been allowed at Flat GE on 24 June 2014. In my view, P tried to block Wu from having first-hand viewing and record of the “fresh” structural ceiling after taking down the false ceilings before exposure to the damp, mouldy and dusty condition of Flat GE (eg he was prevented from taking water samples from the air-grilles (B6/2030-1034)). This did not speak well of P’s veracity.
334. Ho tried to sidestep this by saying it was important but not a must for the Experts to witness the process of removal of false ceiling as “…… there had been so many years since the leakage and the ceiling was there and I think the condition of the ceiling should remain the same”, and “…… there shouldn’t be great changes to the original concrete ceilings …… before the removal of the false ceilings and after the removal of the false ceilings …… [because] there was airflow in the space between the false ceilings and …… the ceiling proper, it is not a truly enclosed space[194] in which there would be great changes after removal”. I disagree. Ho must have known there was no ventilation at Flat GE at that time, and I cannot see why an expert would not want to see the best available evidence at the earliest point in time and would prefer to see evidence potentially contaminated by other factors such as serious condensation and rising damp that had nothing to do with any leakage from Flat 1E. In any event, Ho’s personal views were neither here nor there because Wu as D1’s expert was entitled to carry out reasonable inspection as per the methodology he considered appropriate, and P’s solicitors had been told Wu considered it appropriate/necessary to view the structural ceilings immediately upon the false ceilings being taken down. In my view, this was not an unreasonable request, which was made known to P’s solicitors well before 24 June 2010 to which no objection was raised.
335. According to their letter dated 26 June 2014 to P’s solicitors (D/113-116), D1’s solicitors put on record (which I accept) what happened on 24 June 2014 as informed by Wu:
| (a) |
Wu observed the condition of Flat GE was much worse than the last inspection on 7 February 2014, and mould growth was observed. Wu made record by taking MC survey and testing water samples collected at the site. |
| (b) |
Wu was expelled from Flat GE at about 11:40am, but after negotiations via D1’s solicitors Wu and his assistant were allowed to re-enter Flat GE at about 1:45pm on condition they would not take MC record or perform any other testing, and they were only allowed to take photographs and make video recording. |
| (c) |
There was heavy rainfall in the area between 12:00 noon and 12:45pm. |
| (d) |
After lunch break, P’s workers started to take down the false ceiling outside the Loke Jr Bedroom which was part of the Yard Structure. There were at least 4 active water leaking points (but no water pipe belonging to Flat 1E) at that area,[195] and Wu tested water samples collected from the leaking points. |
| (e) |
Sky was not present in the afternoon, but returned at/about 4:25pm when Wu advised her of his findings. |
I find there was no reasonably justifiable basis for imposing conditions for Wu’s presence, especially when it was also part of Ho’s test plan for MC survey to be done.
336. P at first claimed she passed the keys of Flat GE to P’s solicitors as she was too busy to attend Flat GE on 25 June 2014. But when confronted with photographs taken on 25 June 2014 (Exhibit D1-2), P conceded she was present both in morning and afternoon that day. I also reject P’s allegation that she still did not know on 25 June 2014 about Wu’s right to participate in the joint inspection. Given the clear position in the inter-solicitors’ correspondence there was no reason for P’s solicitors (with whom P was in contact) to be reticent in telling P that Wu was entitled to be present at Flat GE on 24-25 June 2014. I regret to say P lied about this and about her absence from Flat GE on 25 June 2014 in order to shy away from her efforts to interfere and prevent Wu from properly participating in the joint inspection. When pressed, P resorted to vagueness by asserting she did not remember asking Wu to leave Flat GE in the afternoon. But Ho testified he knew Wu was again asked to leave Flat GE on 25 June 2014, which request was handled by P. Ho also said (and I accept) there were communications between P’s and D1’s solicitors with a lot of arguments, which was unsurprising as D1’s solicitors were indignant over P’s unilateral effort to undermine the joint inspection. It was regrettable that even though Ho knew 25 June 2014 was for joint inspection by the Experts he did not proactively advise P and/or her solicitors of such fact.
337. Ho agreed Sky took some photographs on 25 June 2014 of workers taking down the false ceilings and/or of the structural ceilings after some false ceilings were removed. Ho reviewed such photographs but did not include them in the Ho Report even though photographs taken soon after removal of the false ceilings would show the contemporaneous condition of the structural ceiling for useful comparison with its condition, say, in July 2014 for expert analysis to assist the court. In my view, P’s overt exclusion of Wu from Flat GE and Ho’s deliberate decision to withhold contemporaneous photographs conspired to prevent pertinent evidence from being observed, recorded and analysed. Ho stressed the condition at Flat GE on 24-25 June 2014 was terrible, dusty, unhygienic and unhealthy, but Wu was clearly prepared to brave that to get the information he wanted. I am not persuaded P and Ho were worried about safety and/or insurance issues, but were more concerned with suppression of what might be relevant evidence.
338. According to their letter dated 26 June 2014 to P’s solicitors (D/113-116), D1’s solicitors put on record what happened on 25 June 2014 as informed by Wu (which account I accept):
| (a) |
As the demolition work was only about 40% completed on 24 June 2014, Wu attended Flat GE on 25 June 2014. |
| (b) |
When 60% of the demolition work was completed and the balance of such work was still in progress, Wu was once again expelled by P at/about 3:40pm when crucial parts of the false ceiling were about to be taken down as hatched in blue in the layout plan annexed to such letter. |
| (c) |
Despite repeated requests by Wu to P and by Mr Leung of D1’s solicitors to Mr Fung of P’s solicitors thereafter, Wu was not allowed to re-enter Flat GE to preserve/gather evidence as to the condition of the structural ceiling covered by the false ceiling. P tried to justify Wu’s exclusion by claiming she was about to take down all wardrobes inside Flat GE, but Wu requested to be present too as it was part of P’s case that the wall behind one of the wardrobes also suffered from water leakage. Such request was declined despite repeated requests by Mr Leung to Mr Fung. The workers left at/about 4:20pm while Wu waited outside Flat GE, and they did not talk to Wu. Wu found Flat GE locked and was told by Wong that P had also left. Wu stayed until 5:00pm and then left. |
339. On 25 June 2014, P’s solicitors wrote to D1’s solicitors to complain of the request by Mr Leung of D1’s solicitors for P’s personal undertaking to refrain from entering into Flat GE until further joint survey to be scheduled in order to preserve evidence. P’s solicitors seemed to think this was an implicit admission of P’s claim for loss of use of the premises during this period, so they asked whether D1 would bear such loss at market rent (D/112).
340. On 26 June 2014, D1’s solicitors replied to put on record what happened at the further joint survey at Flat GE on 24-25 June 2014 (see paragraphs 335 and 338 above). D1’s solicitors reminded that experts owed a duty to the court to gather relevant and necessary information, eg MC survey. D1’s solicitors deprecated conduct that deprived Wu of the opportunity to take record during removal of the most crucial parts of the false ceiling at Flat GE, and explained it was against such background that request was made to preserve the evidential status quo without further contamination pending Wu’s next attendance at Flat GE as soon as possible to make proper record.
341. I cannot see how such request was unreasonable or amounted to any implied admission. Indeed, P acknowledged even Ho asked for removal of the false ceiling to assess damage to Flat GE, as seen from a reply letter dated 25 June 2014 (should be 26 June 2014) by P’s solicitors stating the same (D/118):
“It has been agreed between the parties that a further joint inspection will be made some time after demolition of the said false ceiling. Once the said false ceiling and/or wardrobe and other furnishings which are attached to the wall and/or ceiling have been removed, new findings can be established or noted. This is a fact that nobody can change. In this regard, we have already arranged for photos to be taken, and such photos can be verified at the time of the further joint inspection. We cannot understand what prejudice your client will suffer if your expert is not allowed to take photos of the premises at this stage! We regret that you suspect our client would temper with the evidence, which is denied.
Further, it would be unfair to either party to do any testing at the time of the demolition of the false ceiling and other attachments when everywhere was in a mess. Such findings or testings could not be accurate in any event.” (my emphasis)
On 26 June and 3 July 2014, P’s solicitors made proposal for further joint inspection in July 2014 (D/119-120).
342. In my view, it was not for P to dictate when/how D1’s expert was to collect non-destructive evidence/data from Flat GE, but it would be open for P to in due course to critique the value of such evidence. I have explained why early viewing of the structural ceiling upon removal of the false ceilings would be beneficial, which was nicely explained in the reply letter dated 4 July 2014 by D1’s solicitors (D/121-122) that stated it was vitally important to take proper record of the condition of (a) the structural ceiling slabs behind the false ceilings and (b) the wood furring abutting thereto for any trace of water seepage. Once the soffit of the structural ceiling slabs was opened, the slabs would be subject to contamination by their surroundings including condensation which was a great influence in Flat GE according to Wu’s findings on his visits there. That was why Wu and D1’s solicitors repeatedly insisted on taking MC survey (which was refused by P and Mr Fung of P’s solicitors, but which should not be left until later when the particular evidence would disappear). I agree with the views expressed by D1’s solicitors, and find it surprising Ho still withheld photographs that he took upon removal of the false ceilings despite demand by D1’s solicitors and what was said by P’s solicitors in their letter dated 26 June 2014.
343. On 5 July 2014, D1’s solicitors wrote to P’s solicitors to request for the following:
| (a) |
what are the objectives of Ho’s inspection of Flats 1E and GE, eg detect possible leak from Flat 1E or take evidence of leaks etc; |
| (b) |
nature/scope of test to be done during inspection of Flats 1E and GE and justification for carrying out such test. |
Wu proposed a 3-day inspection at Flat GE to identify the cause of (a) the water leakages at Flat GE between 2006 and 2013 and (b) the serious condensation at Flat GE. D1’s solicitors also set out the works/tests Wu proposed to carry out at Flat GE. On 7 July 2014, P’s solicitors replied to say Ho’s test plan as set out in their letter dated 24 May 2014 would suffice, and it was not for Wu to question Ho’s testing objectives/methodology.
344. In their letter dated 9 July 2014 to P’s solicitors (D/127-129), D1’s solicitors reminded that Ho’s original test plan was before demolition of the false ceiling at Flat GE, but if Ho preferred to adhere to his original test plan they had no further comments except to emphasise the condition of the structural ceiling slabs and wooden furring must be preserved with priority given to Wu to take MC record on the structural ceiling slabs and to examine the wooden furring. The joint inspection of Flat 1E took place on 10 July 2014. On 16 July 2014, Registrar KW Lung granted extension of time by consent until 21 July 2014 for P and D1 to exchange expert surveyor reports, but maintained the directions for joint meeting/report.
345. On 19 July 2014, D1’s solicitors by letter to P’s solicitors (D/133-134) noted P’s solicitors had reassured them Ho would adhere to the test plan enclosed with the letter dated 24 May 2014 by P’s solicitors even after removal of the false ceilings to which Wu had no objection. D1’s solicitors further noted there was some seeming suggestion that Ho might wish to conduct tests/works outside the scope of his test plan, and demanded full particulars. There was no reply by P’s solicitors.
346. The final joint inspection of Flat GE took place on 21 July 2014 by Ho and Sky (replaced by Keith after Sky was injured) and by Wu and Ho Wai Hang. Ho claimed to have collected some “water” samples for laboratory testing, but it turned out to be an euphemism to disguise his collection of what were actually “plaster samples” from the ceiling structure of Flat GE. Ho said small pieces of plaster samples were removed from the soffit of beams/slabs in Flat GE (covered by false ceiling) for initial on-site test and later for laboratory test to ascertain whether certain chemicals were found in such samples that might assist in investigation of the cause of the water leakages. This was undoubtedly a destructive test outside Ho’s original test plan of 24 May 2014, and was not advised to D1 despite requests for clarification of Ho’s test plan by D1’s solicitors. Such surreptitious approach to a joint inspection spoke ill of Ho’s professionalism as expert. To make matters worse, Ho was not responsive when D1/Wu raised queries about this destructive test via letter dated 1 August 2014 from D1’s solicitors to P’s solicitors, which made it difficult for Wu to properly evaluate Ho’s plaster collection and test.
347. Ho admitted he came up with the idea of collecting plaster samples for laboratory examination “…… [when] I arrived at the site I found the condition there appropriate for me to take plaster samples and I thought I should take some plaster samples for tests”, and even adding that the best time for extracting plaster samples was when the false ceilings were removed. This of course reflected poorly on P’s effort to exclude Wu from Flat GE on 24-25 June 2014. Anyway, the false ceilings were removed in June 2014 and since then Ho had been asked about his updated test plan. I do not believe he came up with the idea of plaster collection only on 21 July 2014 (as he had to bring tools / plastic bags for extraction of the plaster samples and relevant liquid for on-site test), and his explanation was just a poor attempt to justify his silence in response to enquiries about his revised test plan. When pressed, Ho claimed “…… the situation on site was very bad, very dusty with a lot of removed materials ……” so there would be contamination of the samples, which did not sit well with his above allegation that the condition was good for plaster sample collection.
348. Ho claimed the plaster samples were collected at random from different locations, and he left such collection to Sky without watching/ monitoring the process, making any photographic/video record and/or noting down the exact locations from where the 4 samples were extracted. He later changed to say he guessed Sky “…… had written that down in her own notes ……” but he forgot whether he asked her about that, and I am surprised if not alarmed that Ho as expert “…… didn’t find it very important”. This cavalier approach to plaster sample collection was in contrast to Ho’s MC survey in which he recorded the particular spots where he made MC recordings and he drew a diagram to identify those spots with assigned reference numbers, which Ho said was the normal practice in the surveying industry. Ho eventually conceded that even for plaster sample collection “…… from our past experience usually those spots would be drawn on the plan and put in the report”, but paragraph 2.10 of the Ho Report (B1/20) merely stated plaster samples were taken from the ceilings of the GE Master Bathroom, Loke Jr Bathroom, “access panel of the living room (the former kitchen area)” and GE Helper Toilet with no further particulars.
349. Ho said “…… only one sample collected from each room and those spots which were likely to have water leakage or which had suffered from water leakage would be our priority spots for sample collection”, but he had no answer why a plaster sample was taken from each of the Loke Jr Bathroom and GE Helper Toilet when P had no complaint of water leakage in those areas. Ho then changed to say he “…… had not been able to decide on the best spots for sample collection so we just collected some samples at random and to see whether there would be any new discovery”.
350. In my view, the whole purpose of a joint inspection was to let the Experts to make findings and give opinion from a common factual platform. Ho agreed the purpose of a joint inspection was to allow the Experts to have “…… mutual supervision and it would be easier for the court to take their examination results ……”, and he agreed it would have been best for Wu to have observed the process of plaster sample collection so he could properly comment on the reliability of the test results. But Wu was not asked to witness the process of plaster sample collection, and Ho did not even know whether Wu observed the process. Ho claimed “…… I don’t think it is necessary for the other side’s exert to supervise everything that we did”, and time was tight that day so he “…… just passed the matter to [his] assistant”. When pressed, Ho was constrained to concede he should have informed Wu, but he did not as “…… [there] was some misunderstanding on my part and on the part of my assistant”. I cannot see how time-consuming it would be for Ho to tell Wu he was going to take 4 plaster samples from the ceiling. I find Ho was reticent because he knew he should not carry out destructive test, and he did not want Wu to know and raise objection.
351. This was borne out by Ho’s own evidence when he was pressed on the agreed test protocol for the joint inspection on 21 July 2014. He claimed that generally “…… there would be a list made in advance as to what would be done or what to be checked for, but, in fact, when we actually arrived at the site and see the condition of the site that we can decide there and then as to what additional things to be done there and it would be a verbal agreement as to what can be done. It is all right for us to do that as long as what we do is reflected in our report”. But the reality was (and Ho knew) there was no verbal agreement of what further test was to be done at Flat GE on 21 July 2014.
352. Sky did some initial test on the 4 plaster samples collected at Flat GE by grinding the plaster and adding liquid to them. Ho could not remember whether or not these plaster samples were the same ones that were sent to the laboratory. At first Ho insisted only 4 samples were collected (and 4 samples were sent to the laboratory), but later changed to say “ …… it was other samples collected that we sent to the laboratory for examination ……” and the samples with liquid added were destroyed, and still later he said he could not be sure whether it was the samples with liquid added or other samples that were sent to the laboratory “but they were from the same location, the same ceiling, the same rooms ……” Ho also decided not to tell the laboratory what initial on-site test was done, and not to include such on-site test results in the Ho Report. Such evidence spoke ill of the overall reliability of Ho’s evidence.
353. Ho also knew that immediately after the joint inspection on 21 July 2014 D1’s solicitors demanded details of the on-site test done (see paragraph below), but he did not give any reply allegedly because “…… there would soon be a joint expert meeting in which I would give an explanation or I would give a reply and we had to compile a joint report”. But Ho must have known that Wu could hardly make effective comments at the joint meetings without information about the plaster collection and on-site test. Ho sidestepped this under cross-examination by playing down the relevance of the plaster samples and saying “[probably] the sample was contaminated a long time ago before all these water leakage incidents took place, because the residential building was some 30-odd years old already,” and “…… it’s a possibility that sample was contaminated before November 2006” (which was in contrast with what he said in paragraph 347 above about his belief as to the usefulness of the plaster samples).
354. On 1 August 2014, D1’s solicitors wrote to P’s solicitors (D/135-138) to complain that Ho carried out destructive test at Flat GE on 21 July 2014 without disclosure of particulars of such test beforehand, and that Wu was denied the chance to collect similar evidence. It went on to state Wu enquired with Ho on 21 July 2014 what he was doing but was rebuffed by Ho, so D1’s solicitors demanded P to provide information as to Ho’s on-site tests (ie what tests were done, what the objectives were, and the method statement for each test done), his sample collection, how such tests were carried out, and steps for material sample preservation. Ho received a copy of such letter a few days later, but he did not provide the requested information so P’s solicitors did not reply to such letter. Ho claimed the requested information would be set out in the Ho Report, but in fact the Ho Report did not set out his method statement for plaster collection nor the on-site test done at Flat GE. Ho then tried to hide behind assertions that “in our industry people should know about what would be done in different tests”, and “…… the on-site test …… were not completed …… we take it that those tests were not done or do not exist”. I do not even begin to see how these poor assertions and the Ho Report addressed Wu’s/D1’s queries, especially when Ho was only able to point to paragraphs 2.10 and 3.2 thereof.
355. Mr Fong submitted the trial was not a trial by experts, and the Experts’ evidence could not substitute or replace that of the factual witnesses. I have considered the totality of the evidence in coming to my findings, but the way the Experts conducted themselves in going about the inspections and arriving at their expert opinion must have a bearing on their veracity and reliability. In my view, Ho adopted a wholly unsatisfactory approach to plaster collection that undermined the integrity of the joint expert inspections, and I find he knowingly withheld information about the on-site plaster sample collection/test from Wu, which regrettably reflected poor understanding of his professional duty to the court as expert. This undermined the reliability of Ho’s opinion as expert.
XXV. CAUSES AND CAUSATION
356. According to the above findings,
| (a) |
the water leakages prior to 13 November 2006 were not caused by Flat 1E(see Part XII above); |
| (b) |
the water leakages in the Laundry Area did not come from Flat 1E (see paragraphs 106-120, 121(c) and 169-182 above); |
| (c) |
the water leakages at the Cabinet Area from mid-November 2006 to February 2007 did not come from Flat 1E (see paragraphs 95-99 and 121(a) above), but a water source (amongst other water sources being rainwater and those in paragraph 97(a)-(c) above that P failed to exclude) for water leakages at the Cabinet Area from March to November/December 2007 (see paragraphs 187-202 and 213-225 above) and from late January 2008 until mid-January 2014 (see paragraphs 232-266 and 323 above) was the defective External Sink Drainpipe; |
| (d) |
the water leakages at the Bathroom Area from mid-November 2006 to February 2007 did not come from Flat 1E (see paragraphs 100-105, 121(b) and 142-144 above), but a water source (amongst other water sources in paragraph 101(a)-(b) above[196]which P failed to exclude) for water leakages at the Bathroom Area from March to November/ December 2007 (see paragraphs 157-168 and 213-225 above) and from October 2008 to May 2013 (see paragraphs 264-266 above) was the defective External Shower Cubicle Drainpipe; |
| (e) |
up until March 2012, the External Sink and Shower Cubicle Drainpipes were still defective and leaking, but leakages at the Bathroom Area had been overtaken by damage to the External 1E Helper Drainpipe due to works by Yuen Hing in October/November 2010 (see paragraphs 277-281 above), damage caused by Yuen Hing’s water flood test in April 2011 (see paragraphs 287-291 above) and the 06/11 Incident in June 2011 (see paragraphs 293-307 above) for which Ds could not be blamed; |
| (f) |
D2/TP1 would not be liable in any event for further leakages after he moved out of Flat 1E in late June or early July 2011. |
357. Having come to the aforesaid factual findings, it is still necessary to consider whether P had discharged the causal burden as a matter of fact and law.
358. Drainage on Rooftops Ms Wong submitted that the drains of the Yard / Light Well Rooftops could not effectively discharge water, which contributed to water leakages at those areas. It was said inefficient drains allowed water (including rainwater) to accumulate on such rooftops to seep into the interior of Flat GE via defects in such rooftops. Likewise, Mr Brown submitted that even without the defective External Sink and Shower Cubicle Drainpipes, the Cabinet/Bathroom Areas would still suffer water damage from, say, rainwater that would leak into such areas through the Yard / Light Well Rooftops that were not impervious to water.
359. In my view, there is force in Ds’ contentions that drainage on the Yard / Light Well Rooftops was ineffective such that other water sources on/above the Yard / Light Well Rooftops contributed to the water damage by seeping through such defective rooftops:
| (a) |
The drain holes on the Light Well Rooftop had perforated grating with small holes to allow water to pass, but it could be easily covered up by leaves/debris resulting in blockage (B4/683-684). Even Ho opined such drain holes would be sufficient for light rain, but not if there was heavy rain, so rainwater could pond and accumulate due to the Light Well Kerb which prevented water from flowing out of the open end of the Light Well Rooftop unless it exceeded a depth of 300mm (see eg the flooding of the Light Well Rooftop in 2013 – see paragraph 316(c) above). |
| (b) |
There was a drain hole with grating at about the middle of the Surface Channel on the Yard Rooftop (see photograph 0368 9i at B5/875). On 10 July 2014, there was flooding of the Surface Channel (B7/1229) and water accumulated near to the external Kitchen Wall at the Kitchen/Yard Corner which coincided with the Cabinet Area in Flat GE underneath. Ho agreed such flooding or accumulation of water indicated the drain hole was not effective in discharging water possibly due to blockage and/or due to inappropriate gradient of the Surface Channel to the drain hole. In my view, such accumulation of water might seep through defects in the Yard Rooftop, and this could similarly happen even before July 2014.
Further, the drain hole on the Surface Channel was connected to a concealed 4-inch vertical drainpipe in the 100mm gap between the external wall of the Yard Structure and the Cabinet Wall (see Renovation Plan). Ho agreed that if there was leakage from such drainpipe, water would be trapped between these 2 walls and would find its way out through the weak points or cracks in the brickwork Cabinet Wall and emerge at the bottom of the New Cabinet, which would be wetted first “…… and the wetness would go upwards”. Ho claimed such possibility was “…… rather low, because normally speaking, all …… drainage pipes would be constructed with a space away from the wall …… Unless the whole pipe is blocked and there is back-flow then the water from there would be able to touch the wall and there would be a possibility of …… water seeping through the wall”. But I find this was a probable cause of the expansion of water damage in the Cabinet Area in 2008 (see paragraph 259 above) for which Ds could not be blamed. |
360. I agree Ds should not be held responsible for damage caused by rainwater and/or other water sources that did not originate from Flat 1E. Despite P’s insistence that water leakage downstairs correlated to water activity upstairs and that water leakages occurred without rain or typhoon, the objective evidence showed leaks from the External Sink / Shower Cubicle Drainpipes were not the only source (see eg the accumulation of rainwater in paragraph 359(a)-(b) above). During the inspections by the Experts, blockages appeared at the drains on the Rooftops: (a) “[in] the rear outside the kitchen [ie the Yard Structure], no repair work to the blockages, water was just allowed to flood the roof, whilst excessive flooding water was allowed to fall to the ground freely at the other end of the yard structure” and (b) “[in] the rear outside bathroom [ie the Light Well Structure], no repair work to the floor drain had been done, the drain pipe had been blocked for quite a long time (at least 7 months or more), since our last inspection on 13 Jan 2014”. As there was no proper access for cleaning, maintenance and repair since 2000, the situation could not have been much better in 2007-2012. Thus, even though I have found the External Sink and Shower Cubicle Drainpipes were defective, P failed to eliminate rainwater and/or leakage from other drains on/above the Yard / Light Well Rooftops as other causes of the leakage/damage at the Cabinet/Bathroom Areas, which lent weight to my view (as further discussed below) that it was the flawed Yard / Light Well Rooftops that effectively allowed all such water sources to enter the interior of Flat GE.
361. Alterations to drainage system of Flat 1E As regards alterations to the drainage system of Flat 1E, Ho and Wu gave the following opinion in the Joint Report:
| (a) |
Ho opined there were some alterations to the water pipes/drains of Flat 1E with erection of additional bathroom and 1E Enclosed Area. “The addition and relocation of the bathroom may cause the defects in the drainage system and water piping systems, such as jointing problems between new and old pipes for drainages, poor workmanship for the relocation of water pipes and drainage system might have caused sudden bursting of pipe joints. The unauthorized alterations and additions of enclosed structures may cause heavy loading to the structure of the buildings and speed up the structural damage/deterioration”. |
| (b) |
Wu noted Flat 1E was in a fair condition with no water leakage found. Further, no water pipes of Flat 1E were laid in the ceiling of Flat GE, so there was no leaking pipe as alleged. The pipe in the ceiling of the original GE Kitchen was a town gas supply pipe serving Flat GE. So Wu opined there were no irregularities at Flat 1E that would have caused water leakages to Flat GE. |
Like Wu, I find Ho’s opinion in (a) above speculative as there was no evidence to show (i) which pipe/drain was defective and affected which area in Flat GE, (ii) which pipe/drain suddenly burst at the pipe joint to cause leakage, and (iii) where was the location of such “burst” pipe joint and what structural damage/deterioration was caused by the water supply pipe and/or water discharge drain due to alteration and addition works at Flat 1E. For reasons explained in paragraph 168 above, I have found that the water supply/drainage system in the 1E Master Bathroom could not be faulted, and was in any event irrelevant to P’s complained water leakages.
362. As regards Ho’s opinion that the addition of the 1E Enclosed Area would cause heavy loading to the structure of the Building, I note Flat GE was not under the 1E Enclosed Area. The suggestion that heavy loading caused by the 1E Enclosed Area would speed up structural damage/deterioration was a bare assertion with no reasons given. There was no plea by P on this, and Ho was not a structural engineer who can give expert opinion on this subject. Further, P did not adduce evidence to show the 1E Enclosed Area and 1E Master Bathroom caused or contributed to water leakages in Flat GE. After all, although the GE Master Bedroom was close to the 1E Master Bathroom, it had not been affected by the water leakage prior to the 06/11 Incident.
363. Modifications to pipes/drains of Block E According to paragraph 6.2.3 of the Joint Report, the Experts agreed the pipes/drains of Block E was substantially modified:
| (a) |
The drainpipes of Flats 1E and 2E were modified with additional pipe bends and waste water had to travel much longer distance before reaching the Block A Manhole which was at risk of blockage due to overloading of the drainage system. The existing manholes (including the Block A Manhole) were covered up by the GE Structures and floor finishes, so there was no inspection and maintenance since 2000. Aging problem together with lack of maintenance would lead to water leaking from the drainage system. Further, installation of the additional Courtyard Manhole and associated drainage to serve the GE Guest Toilet damaged the waterproofing system of the ground floor slab, so ground water would seep into the interior via weak points in the ground floor slab (see paragraph 6.2.3(I)(A)(a) of the Joint Report). |
| (b) |
Erection of the GE Structures created more building joints which should be duly waterproofed and routinely inspected, maintained and repaired, but the above findings showed they were leaking and defective (see paragraph 6.2.3(I)(A)(b) of the Joint Report). |
| (c) |
The pipework that used to connect the indoor systems such as ACV System to the outdoor equipment was dilapidated, which dilapidated pipework would become vessels for delivery of water from outside to the interior. During the water tests to the Rooftops, colour-dye water was seen to be delivered inside Flat GE by a dilapidated insulation pipe of the ACV System (see paragraph 6.2.3(I)(A)(c) of the Joint Report). |
364. I have explained in paragraph 16(a) above how modification of drainage system of Flats 2E and 1E could overburden the Block A Manhole and increase risk of water leakage by creating more bends and joints in the drainpipes and having waste water travel longer distance to discharge to a manhole. The blockage of the Block A Manhole in April 2013 was a clear illustration. Ms Wong fairly accepted there was no direct evidence to show leakages of the External Sink and Shower Cubicle Drainpipes in 2007 were due to alteration of drainpipes upon erection of the Yard / Light Well Structures, but suggested there was room for this court to conclude such leakages were at least partly attributable to such alterations in light of the Experts’ common views. After all, had there been no alterations from the original design, the External Sink Drainpipe would connect to the Common Vertical Drainpipe for discharge to the nearer Block A Manhole, but with the erection of the Yard Structure, it was diverted to a further destination for a longer distance with presumably more bends/joints to a manhole via a route that was no longer traceable. Further, the Internalised Drainpipes that served, say, Flat 2E and/or flat units in Block A for discharge to the Block A Manhole were covered up by the Yard Structure without any access for inspection, maintenance and repairs. I agree it would be very difficult for D1 who had no access to the Yard Structure to detect any water leakage of the Internalised Drainpipes (see Top Photo).
365. Floor slabs During the joint inspections of Flat GE between January to July 2014, no watermarks or leakage were seen at the ceiling soffit of Flat GE generally (B8/1406 and 1436), so Ms Wong submitted the reasonable inference was that water had not seeped through the floor slabs of Flat 1E to the ceiling of Flat GE. Ho suggested the absence of watermarks on the ceiling/walls of Flat GE was not conclusive proof, but I have already explained why the water leakages did not seep through the floor slabs in the 1E Kitchen and 1E Helper Bathroom to the Cabinet/ Bathroom Areas.
366. Any suggestion that water seepage through the floor slabs of the 1E Helper Bathroom and 1E Kitchen to the Bathroom and Cabinet Areas necessarily meant the waterproofing membranes of such floor slabs (which should be impermeable) were defective,[197] but P did not so plead and Ho did not carry out water ponding test to show the waterproofing integrity of such floor slabs was defective. For the Bathroom Area, Wu explained how water that entered via the defective Light Well Rooftop could reach the permeable gypsum board false ceiling and leak out at various locations in the GE Master Bathroom in the absence of a partition that separated such false ceiling for the Original and New BRm Areas. As for the Cabinet Area, I have rejected the alleged spillage/flooding from the washing machine in mid-2007 and any alleged leakage from the waste water drainpipe for the washing machine that ran behind the floor skirting of the kitchen cabinet to the drainage in the Sink Cabinet, which flooding (if it had occurred) would have been noticeable, but D2/TP1 never noticed any irregularity. Given my finding that the defective External Sink and Shower Cubicle Drainpipes were in the outside areas on/above the Yard / Light Well Structures, leakages therefrom would necessarily seep into the Bathroom/Cabinet Areas via the defective Light Well / Yard Rooftops. I am not satisfied the defects in the External Helper FD Drainpipe were caused by Ds, and in any event it had been repaired by Yuen Hing.
367. The permeating theme that underlied all the above matters was this: ultimately it was the dilapidated/defective Yard / Light Well Rooftops that allowed water to seep through to Flat GE below. This is a matter to which I now turn.
368. Defective waterproofing of the GE Structures Sections 41, 48 and 49(2) of the Building (Construction) Regulations Cap 123B provide that “every wall of a building in contact with a possible source of damp shall be provided with adequate protection against the penetration of moisture”, “every roof shall be weatherproof” and “access for maintenance shall be provided for every flat roof [adjoining any building]”. I agree with Ms Wong that such statutory requirements are to ensure the exterior of a building is impervious to water. But the evidence discussed above showed the Rooftops were not impermeable.
369. In the Joint Report, the Experts agreed the building fabric/ envelope of Flat GE had been altered by demolishing original external walls with windows to erect the enclosed and window-less GE Structures, and there was damage to structural beams/columns with joints, gaps and holes to accommodate electrical and mechanical facilities. More importantly, the drainage systems of Flats 1E and 2E and the Roof were diverted (with new drainpipes for access to other manholes with additional pipe joints/bends) and new plumbing system was installed for Flat GE that concealed original manholes/drainpipes without access for inspection and maintenance, and that required erection of new manholes with new drainage systems. All these matters increased the risk of blockage and leakage.
370. The Experts also agreed the Rooftops were defective and not impervious to water, and the fact rainwater and leakages from pipes/drains on/above the Yard / Light Well Rooftops could and did penetrate through such defective rooftops was also borne out by my findings above. Indeed, the water leakages from the external sections of drainpipes on/above the Yard / Light Well Structures could hardly enter Flat GE if the Yard / Light Well Rooftops were impermeable. Holes/openings were made on such rooftops (see paragraph 17(i)-(ii) above), and there was little evidence of maintenance/repair to the waterproofing features of the Yard / Light Well Structures except for Kong’s repairs in November/December 2007, which ultimately were not quite effective and resulted in eventual resumption of leakages at the Cabinet/Bathroom Areas. Further, there was no proper access to inspect, maintain or repair the Internalised Drainpipes and/or Block A Manhole that were concealed by the Yard Structure.
371. As Ms Wong submitted, the defective state of the Light Well Rooftop was clearly shown by (a) leakage from the water flood test at the Carpark on the Roof on 28 April 2011 which resulted in water leakage in the GE Master Bathroom via the Light Well Rooftop (for water in the Carpark could hardly get inside Flats 1E and GE otherwise), (b) sewage blockage of the Block A Manhole in 2013 that resulted in flooding on the Light Well Rooftop and leakage into the GE Master Bathroom, and (c) Wu’s colour-dye water spray tests on the Rooftops in 2014 (with collection of colour-dye water inside Flat GE). In my view, the defects of the Rooftops were also due to their less sturdy construction (as compared with a reinforced concrete rooftop), and aging problems with no access for regular inspection, cleaning, maintenance and repairs. Indeed, Ho was too concerned about safety to go onto the Rooftops. Although Wu was prepared to brave such risk, he said one had to be careful about standing on the Rooftops.
372. Plainly, apart from leakages from the defective External Shower Cubicle and Sink Drainpipes, any other water source on the Yard / Light Well Rooftops (be that leaked water from other unit or communal drainpipes on/above the relevant Rooftops as explained in paragraph 16 above, rainwater or water leakage from the Roof as in the case in April 2011) could also penetrate such rooftops that were not impervious to water and then seep into Flat GE, including the Bathroom/Cabinet Areas.
373. Although I have found the leakages from the External Shower Cubicle and Sink Drainpipes near to and above Locations X and B were probably particularly relevant water sources for water leakages in the Cabinet/Bathroom Areas, P failed to exclude other water sources. Thus, all these water sources merely formed part of the context of the water leakages, but the real and effective cause of the water damage inside Flat GE was the defective waterproofing features of the Yard / Light Well Rooftops. Had such rooftops been weatherproof and/or impervious to water as they should, any leaked water, rainfall or flooding would have fallen harmlessly on such rooftops without any way into Flat GE and would not have caused damage to the Bathroom/Cabinet Areas below. On such basis, leaks from the external sections of the relevant drainpipes whilst satisfying the exclusionary “but for” test were not the effective causa causans for attaching legal responsibility for the damage suffered. Applying practical common sense, the failure to ensure the Yard / Light Well Rooftops to be waterproof was the real and effective cause of the harm/damage below. It would not be fair to hold Ds liable even if some water came from the External Sink / Shower Cubicle Drainpipes since the damage was caused by the supervening condition of the defective Yard / Light Well Structures.
374. Mr Fong submitted that when D1 purchased Flat 1E in 2002 she was aware of the existence of the GE Structures, and it was Ds’ duty to maintain/repair Flat 1E’s drainpipes to ensure that water would not escape from such drainpipes, but they failed to appreciate such drainpipes should not have leaked in the first place, ie no water from such drainpipes should have fallen onto the Yard / Light Well Rooftops to seep into the Flat GE, so it was irrelevant whether the escaped water from the drainpipes went through the Yard / Light Well Rooftops or through a window with defective sealant. It was said Ds’ contentions would lead to a ridiculous situation in which they could pour water onto the GE Structures and claim they were not liable for damage inside such structures.
375. In my view, such submissions failed to address the principles in paragraphs 60-65 above, and P failed to prove on the balance of probabilities that the defective drainpipes of Flat 1E effectively caused the water leakages at the Bathroom/Cabinet Areas. The leaking and defective Yard / Light Well Rooftops and P’s failure to repair them were the novus actus intervenuiens that broke the chain of causation. P relied on the causes of action of nuisance and negligence, but I would have arrived at the same conclusion. The claimed loss was not damage to the Yard / Light Well Rooftops themselves (eg water damage to the structure of such rooftops or development of mosquito colonies as a result of dripped water onto such rooftops), but rather to property underneath such rooftops (which were supposed to be weatherproof and imperious to water) at the Bathroom/Cabinet Areas inside Flat GE. I also bear in mind the Concession in which P agreed to forego the Conceded Loss under the Yard / Light Well Rooftops in the Yard / Light Well Structures. In any event, Mr Fong’s analogy to a window was inappropriate as a window was not intended to be impermeable or impervious to water.
376. That being the case, and given the defective Yard / Light Well Rooftops were the only routes for the water sources from Flat 1E (including leakages from the defective External Sink / Shower Drain Drainpipes, rainwater and possible leakages from other pipes/drains) to enter Flat GE, P’s case fell to be dismissed. Mr Brown submitted P myopically ignored signs that the Yard / Light Well Structures were defective. I agree. It was obvious from (a) repairs to the Rooftops that Loke Sr caused Kong’s to carry out in November/December 2007, (b) leakages at the external seam of the “canopy” with water route into the Yard Structure as identified by Kong’s in February 2008 (see Top/Bottom Photos) and (c) leakage from the External Helper FD Drainpipe in October/ November 2010 which was eventually repaired by Yuen Hing (see Yuen Hing Quotation/Photo), so P’s assertion that “I didn’t suspect or think that the leakage was result of the defective construction ……” did not bear belief. Further, P did not take note of the Experts’ agreed opinion in the Joint Report about the defects of the Yard / Light Well Rooftops. And yet, P / Loke Sr took no further step to address the obvious by having their contractor carry out useful or thorough repairs/improvement to the Rooftops, and merely turned to press Ds for resolution by insisting the blame lied with Flat 1E.
377. In the circumstances, there is no need for me to consider Ds’ interesting arguments as to contributory negligence, save to say that if Ds were found liable to P for leakages from the External Sink / Shower Cubicle Drainpipes for the periods in paragraph 356(c)-(f) above (which I disagree), P would be significantly liable in contributory negligence for all of the above reasons.[198] But assuming that I am wrong and Ds were so liable to P (subject to contributory negligence and/or discount for other water sources in respect of which Ds would not be liable), the next question would be whether D1, D2 or both be liable, and the analysis in Part XXVI below is based on the aforesaid assumption.
XXVI. D1’S AND D2’S LIABILITY TO P
378. D1’s liability I have found D1 was only aware of the leakage of the external freshwater supply pipe in November 2006, and learned of P’s other water leakage complaints in March 2007, so she was not aware of the leakages in the Cabinet/Bathroom Areas prior to the 1st Tenancy. I have rejected the Collateral Agreement, and found (as Ms Wong conceded) that under the TAs and Addendum D1 reserved unto herself the right/power to keep, maintain and repair the External Sink and Shower Cubicle Drainpipes, and that in fact she assumed responsibility and exercised control by carrying out inspection and repairs of the pipes/ drains at Flat 1E. Further, I have found TPs only carried out the Works and not the Improvement Works, so there no breach of the DMC on the part of TPs. There was also no reliable evidence that I accept to show D2’s/TP1’s use of water in Flat 1E was other than ordinary domestic user. In the circumstances, assuming P proved her case on nuisance/negligence on the aforesaid assumption, D1 would have been liable to P to the extent she should, and she also would not have been able to seek indemnity/ contribution against TPs for such liability.
379. D2’s liability Mr Fong submitted that the fact a landlord is liable does not mean the tenant is not liable, and referred to Leung Tsang Hung at page 502 in which Ribeiro PJ stated that “[an] owner can therefore usually be shown to have a sufficient degree of control to be made liable together with the tenant”. Mr Fong argued TPs as tenant/occupier had a non-delegable duty to abate nuisance, and they were liable to P by virtue of their occupation of Flat 1E. Since P told D2/TP1 the water leakages correlated to taking showers and dishwashing, TPs should have caused necessary repairs to be done to the defective/leaking Sink / Shower Cubicle Drainpipes or should have waited until D1 repaired such drainpipes before D2/TP1 continued to use the Kitchen Sink and/or shower cubicle of 1E Helper Bathroom. Mr Brown submitted D2/TP1 and TP2 would not be so liable to P.
380. I have found D2/TP1 did not carry out the Improvement Works and/or plumbing works at Flat 1E in February 2007 nor any works/repairs to the pipes/drains of Flat 1E thereafter. So TPs did not create the complained nuisance insofar as the leakages came from the defective External Sink and Shower Cubicle Drainpipes. There was little evidence of how these external drainpipes became defective, but it could have arisen from general age and lack of maintenance of Flat 1E’s external plumbing as there was no proper access to the relevant rooftops for inspection, cleaning, maintenance and / or repair since at least 2000. In any event, since D2/TP1 did not create the nuisance, proof of negligence at least is essential for liability in nuisance (see paragraph 54 above). Mr Brown submitted P’s claim against D2 / TP1 fell down for failing to satisfy the conditions as to (a) knowledge of the nuisance, (b) control to prevent nuisance, (c) foreseeability of harm and (d) ability to abate the nuisance.
381. First, as to D2’s/TP1’s knowledge of the source of the leakage, it was true mere knowledge of the claimed damage was not good enough, and it must be shown D2/TP1 had actual/presumed knowledge of the source of the water leaks. Mr Brown submitted that even though D2/TP1 knew via Richard and later from P that P suffered water damage at the Cabinet/ Bathroom Areas, and P believed some water probably emanated from Flat 1E, that was insufficient to establish necessary knowledge on the part of D2/TP1. Mr Brown argued the defects in the External Sink and Shower Cubicle Drainpipes were not observable patent leaks that D2/TP1 could easily address so as to trigger “presumed knowledge” on his part, especially when there was no proper access to the Yard / Light Well Rooftops for regular inspection, cleaning, maintenance and repair.
382. It was also said that D2/TP1 did not shut his eyes to the existence of water damage to Flat GE and/or refuse to investigate possible connection with Flat 1E (ie he checked and could not detect any irregularity within Flat 1E), but he was not in a position to gain knowledge through reasonable diligence that the leakages came from the defective External Sink / Shower Cubicle Drainpipes even though the correspondence revealed he had suspicions about the water source that caused damage at the Cabinet/ Bathroom Areas. Mr Brown submitted D2/TP1 was not obligated to do more than he did, but TPs were not able to confirm the actual water source was from Flat 1E’s pipes/drains or to know the non-impervious nature of the Yard / Light Well Rooftops formed the water route into Flat GE. On such basis, it was suggested that D2/TP1 did not have either actual or presumed knowledge of the water source of the leaks into Flat GE necessary to establish nuisance.
383. On the other hand, Mr Fong submitted it would be too onerous to require P as claimant to adduce surveyor or expert report to pinpoint the exact water leakage points at Flat 1E, and reminded that P did not just inform D2/TP1 of water damage to the Cabinet/Bathroom Areas, but also highlighted specific matters that pointed to Flat 1E: (a) the FEHD report in March 2007 clearly showed defective drainage in the 1E Helper Room, (b) there were letters from the BMO that relayed P’s complaints, (c) P’s / Loke Sr’s letter dated 1 March 2008 to Ds enclosed the Top/Bottom Photos, (d) P specifically complained the water leakages were related to taking showers and dishwashing which pointed to problems with the Sink and Shower Cubicle Drainpipes, and (e) the Prune Juice Incident should bring home to D2/TP1 there was likely problem with the Sink Drainpipe.
384. I am satisfied the matters in paragraph 383(a)-(e) above satisfied the criterion as explained by the Court of Appeal in 張秀玲 that D2/TP1 had presumed knowledge that a water source for leakages to the Cabinet/Bathroom Areas came from the pipes/drains of Flat 1E. In my view, this was not a latent defect. The factors in paragraph 383(a)-(e) above suggested problems with Flat 1E’s waste water drainpipes, which sat well with D2’s/TP’s own surmises (eg after the Prune Juice Incident D2/TP1 wrote to P on 27 May 2008 saying it led him to think that the Sink Drainpipe was leaking – see paragraph 249(a) above). As explained in 張秀玲, “若在通常的情況下戶主應可知道有關使用地方的情況, 在法律上他就被當作知情。作為地方的戶主, 他應對該地方作出合理謹慎的處理。故此, 對該地方的情況而言, 一切他應在合理謹慎下可知道的, 法律也當他知道”.
385. Secondly, as explained in paragraph 79 above, the court looks to see whether D2/TP1 as occupier had sufficient control both in fact and in law to prevent any nuisance from occurring and/or to eliminate any nuisance that did occur. Here, the right/power to keep, maintain and repair the External Sink and Shower Cubicle Drainpipes were reserved unto D1 as landlord under clause 14 of the 1st TA and the Addendum. D2 had no contractual duty to make repairs; instead he could give Notice of Disrepair to D1 under the Clause 14 Proviso, which (as Ms Wong accepted) he did by correspondence. Further, under the terms of the DMC which were incorporated in the TAs, TPs were not to make structural alterations or to cut, maim, injure, alter or interference with any drains/pipes of Flat 1E. I have found that D1/Li did not give consent for TPs’ or P’s contractor to repair the drainpipes of Flat 1E at D2’s/TP1’s cost to be deducted from the rent payable despite D2’s/TP1’s proposal/request to such effect. Mr Fong submitted such proposal/request reflected D2’s/TP1’s control over the relevant pipes/drains, but in my view, the fact D2/TP1 had to put forward such request/proposal to D1 for her consent showed his lack of control. Even though I accept this was a pressure tactic by D2/TP1 to encourage D1 to carry out repairs, D1/Li did not accede to such proposal/request and instead D1 took it upon herself to carry out repairs, which repairs did not resolve the defects in the External Sink and Shower Cubicle Drainpipes.
386. Ms Wong asked me to bear in mind that under common law the landlord has no duty to effect repairs for unfurnished demised property, and disputed Mr Brown’s reliance on Mint v Good,[199] a case involving a weekly tenancy, in which powers of entry and repair were readily implied where no express covenant existed.[200] I am unable to see how those general propositions would assist when D1 conceded (and I have found) that under the 1st TA and Addendum she was responsible for keeping, maintaining and repairing the external sections of Flat 1E’s drainpipes, and when such external sections were quite different from the internal sections as there was no proper access to the Rooftops for regular cleaning, inspection maintenance and repair due to modification upon erection of the GE Structures. I am not satisfied TPs had “sufficient control” to abate nuisance that required them to effect repairs to rectify leakages from the External Sink and Shower Cubicle Drainpipes. More importantly, the fact TPs as tenant/occupier had physical possession of Flat 1E did not mean he had factual/legal control of the External Sink / Shower Cubicle Drainpipes on/above the Yard / Light Well Rooftops outside Flat 1E to effect repairs.
387. Thirdly, on foreseeability of harm, Mr Brown submitted that even if D2/TP1 had knowledge of the leaks, it must be shown D2/TP1 would reasonably foresee the defect if not remedied would cause damage to P’s land (see paragraph 58 above). In Holbeck Hall Hotel Ltd, Stuart- Smith LJ said at pp 858-859 as follows:
“44. … In most cases where physical injury either to the person or property of the claimant is reasonably foreseeable the defendant will be under a duty of care and will be liable for all damage of the type which was foreseeable, whether the actual extent of the damage is foreseeable or not. …”
But in relation to the Cabinet/Bathroom Areas, even though I have found D2/TP1 had presumed knowledge that the water leakages to the Cabinet/Bathroom Areas probably originated from Flat 1E, it was not foreseeable that leakages from the External Sink and Shower Cubicle Drainpipes that fell onto the Yard / Light Well Rooftops outside Flat 1E would cause water damage inside Flat GE. Whilst P might have a case against D2/TP1 for nuisance caused to the Yard / Light Well Rooftops themselves (eg mould growth on such rooftops and increased breeding of mosquitoes and/or other pests due to constant wetness), it was quite unforeseeable that such leakages would damage the interior part of Flat GE when one would have expected the leaked water (like rainfall) to fall harmlessly onto the Yard / Light Well Rooftops that should have been weatherproof and impermeable.
388. Fourthly, as to the “measured duty” to abate nuisance, D2/TP1 was required to do what would be fair and reasonable for him to do in his circumstances, ie what a reasonable person in his shoes would have done in all the circumstances (see paragraph 59 above). This would include consideration of the extent of the foreseeable risk, the available preventive measures, the cost of such measures, the resources of both parties, and the neighbour’s capacity to protect himself from damage.
389. Here, as Mr Brown pointed out, D2/TP1 had taken inter alia the following steps in relation to P’s complaints of water leakages at the Cabinet/Bathroom Areas: (a) he approached Linda to ask D1 to take remedial action and was told D1 already knew and had dealt with the problem, (b) he gave his contact details to P so they could liaise further on the water issue, (c) he allowed P and the FEHD’s staff access to Flat 1E to carry out Colour Test in March 2007 and sent the test results to Linda to pass onto D1, (d) he twice refrained from use of the shower cubicle in the 1E Helper Bathroom at P’s requests, (e) time and again he allowed access to D1’s contractor to inspect and to carry out works, including replacement of the drainpipe for the washing machine, (f) he was in regular contact with D1 via Li to urge for repairs to address P’s water leakage complaints, (g) he inspected the non-concealed pipes/drains within Flat 1E regularly and when P made specific complaints to try and detect leaks, (h) he proposed to have P’s contractor carry out repair works at Flat 1E to deal with the water leakage problem and to deduct such cost from the rent payable, (i) in 2008 he allowed inspection of Flat 1E by P’s contractor who found nothing unusual, (j) he proposed to arrange for a contractor to carry out repair works at Flat 1E to deal with the water leakage problem and to deduct such cost from the rent payable, (k) he was in regular contact with P by email, telephone and in person to take her complaints and to relay them to D1 via Linda and/or Li, and (l) he allowed the FEHD’s staff to carry out Colour Test again in 2010.
390. In my view, short of actually carrying repairs to pipes/drains or stopping use of water altogether at the 1E Kitchen and/or 1E Helper Bathroom, D2/TP1 acted in a reasonable and neighbourly fashion by acting as communication conduit between P and D1/Li, and by coordinating with P to encourage or even pressurise D1/Li to carry out repairs at Flat 1E, to facilitate P’s claim for seeking compensation against D1, and to liaise with the BMO and facilitate the FEHD’s work. P declined D2’s/TP1’s request in (h) above (on basis that she might assume liability for any default/damage caused by her contractor), and D2/TP1 was left with the impasse of P insisting that repairs to Flat 1E be done D1’s contractor, and D1’s contractor not being effectual in resolving the water leakage problem. On such basis, Mr Brown submitted that at all times D2/TP1 acted reasonably to abate the nuisance in light of his personal circumstances as occupier.
391. The question was whether D2/TP1 could reasonably “have done more”. In his closing submissions, Mr Fong argued that TPs should have carried out relevant repairs themselves or waited until D1 repaired the defective/leaking drainpipes before D2/TP1 and his family continued to use the Kitchen Sink and/or shower cubicle of 1E Helper Bathroom.
392. But it must be remembered taking showers and dishwashing were ordinary domestic user of Flat 1E. D2/TP1 explained that with a family of 5 persons living at Flat 1E he could not suspend ordinary household use of water in the 1E Helper Bathroom and 1E Kitchen, which stoppage was not a reasonably appropriate way to deal with the water leakage problem in his circumstances. Even though I have found there was basis to say D2/TP1 had presumed knowledge that the water leakages came from Flat 1E, the reality was (i) the FEHD in March 2007 did not identify which particular drainpipe in the 1E Helper Bathroom was defective, and no leaks were visualised in the 1E Helper Bathroom even though D1’s contractor was allowed access to the 1E Helper Bathroom, and (ii) even though no particular drainpipe in the 1E Kitchen was identified as defective, D2/TP1 (who had no obligation to carry out pipe/drain repairs under the TAs and Addendum) allowed D1’s contractor access to inspect and carry out works in the 1E Kitchen, and also allowed P’s contractor to check the drainage in the 1E Kitchen. In my view, these matters when viewed against the contextual background explained below did not require D2/TP1 to do more than he did to discharge his measured duty to abate nuisance:
| (a) |
all along until mid-2008, D2/TP1 was told by D1/Li (or Linda) that the leaks were fixed or would be fixed and/or that the problem was with Flat GE, and D1 assumed responsibility by sending her contractor to check and “fix” the problem whenever there were complaints, so it was not for D2/TP1 (especially in light of (b) below) to carry out his own concurrent repairs that might overlap or contradict D1’s approach as to how to deal with the water leakage issue; |
| (b) |
D1 was responsible for keeping/maintaining/repairing the external sections of Flat 1E’s drainpipes, and TPs had no right to effect alterations by, say, repairing/replacing pipes/drains and digging up Flat 1E or opening up external walls for such purpose without her consent, and even though D2/TP1 (as a pressure tactic) intimated having a contractor to carry out repair works at Flat 1E with cost to be deducted from the rent payable, no consent from D1 was forthcoming and D1/Li chose to address the matter themselves, so all D2/TP1 could reasonably do was to urge D1 to solve the water issue and to allow her contractor prompt and full access to Flat 1E to effect such repairs as D1 considered appropriate; |
| (c) |
had D2/TP1 proceeded with investigation and repairs without D1’s permission, he might risk breach of the TAs; |
| (d) |
D2/TP1 offered to let P carry out repairs at Flat 1E at no cost to P and to put such proposal to D1, and although this was more of a pressure tactic, P’s refusal put an end to further exploration of this option; |
| (e) |
I have found that as of November/December 2007 P / Loke Sr knew the defects of the Yard / Light Well Rooftops were the water routes for the leakages in the Cabinet/Bathroom Areas (see paragraph 228(a) above), which was reinforced in February 2008 by the Top/Bottom Photos (see paragraphs 198-199 above), so P could have proceeded to repair the defective Yard / Light Well Rooftops at any time (which would have cured the leakage problem irrespective of the external drainpipe leakages). |
393. In the circumstances, D2 / TP1 was not liable to P in nuisance and/or negligence.
XXVII. D2’S LIABILITY UNDER TAS AND ADDENDUM
394. In light of my findings above, TPs did not create the nuisance to Flat GE and were not liable to D1 under the TAs and Addendum for the condition of (and/or for keeping, maintaining and repairing) the pipes/ drains of Flat 1E or at the very least (as conceded by D1) the External Sink and Shower Cubicle Drainpipes. Ms Wong conceded D1 had notice in respect of water leakage complaints in the Cabinet/Bathroom Areas, but complained TP2 failed to give any Notice of Disrepair under the Clause 14 Proviso in relation to the Flush Water Pipe for the 06/11 Incident. Since I have found that the bursting of the Flush Water Pipe was a one-off incident without negligence/nuisance on the part of TPs, there was no need for me to consider D1’s complaint about the Notice of Disrepair.
XXVIII. D2’S CONTRIBUTION CLAIM AGAINST D1
395. D2 was not entitled to indemnity from D1 based on the TAs and Addendum since he was not a party to such agreements. As I have found both Ds were not liable to P, there was no further basis for D2 to claim for contribution/indemnity against D1. But if I am wrong and Ds were liable to P in respect of water leakages in the Cabinet/Bathroom Areas on the assumption in paragraph 377 above, D2 sought contribution from D1 under the Civil Liability (Contribution) Ordinance Cap 377. I have rejected D1’s contentions that D2/TP1 entered into the Collateral Agreement and/or carried out the Improvement Works. As Ms Wong conceded, D1 was responsible under the TAs and Addendum for keeping, maintaining and repairing the External Sink / Shower Cubicle Drainpipes, and D1 assumed responsibility for repair of Flat 1E’s pipes/drains by taking up such works herself through her contractor. When viewed in the context that D2 had no duty/right to repair the pipes/drains under the TAs and Addendum, and no permission was forthcoming from D1 for D2 to do so, if D2 were found liable to P on the aforesaid assumption (which I disagree), D1 would have been liable to D2 for her failure to rectify the defects to the External Sink and Shower Cubicle Drainpipes.
XXIX. D1’S THIRD PARTY AND CONTRIBUTION CLAIMS AGAINST TPS
396. I reiterate that D2/TP1 did not enter into the Collateral Agreement or carry out the Improvement Works whilst D1 was responsible for maintenance/repair of the pipes/drains of Flat 1E (or at the very least, the external sections thereof) under the TAs and Addendum, and she assumed responsibility by carrying out actual inspection/works in relation to such pipes/drains. I have also found TPs did not create any water leakage nuisance, and they were not in breach of the TAs and/or Addendum. As there was no suggestion that any third party or contribution claim against TPs based on a cause of action in negligence would be more extensive than D1’s contractual claim, I am unable to see how TPs could be liable to D1 for contribution/indemnity.
XXX. CAUSATION OF LOSS
397. In early 2012, P left Flat GE on the basis that the 06/11 Incident rendered Flat GE uninhabitable. But flood water from the 06/11 Incident was freshwater and not foul water, and only the Green Areas were affected, ie essentially the GE Master Bathroom, GE Living/Dining Areas and GE Master Bedroom. Wu said the water damage could have been contained by cleaning up the freshwater flooding and drying out Flat GE, which was what happened at Flat 1E, but this was not done for Flat GE due to inefficient mechanical ventilation by the ACV System even though P continued to live at Flat GE for at least another 6 months. In such circumstances, Mr Brown submitted P’s departure from Flat GE was hardly a decision forced on her by Flat GE’s condition.
398. In my view, it was clear that P’s decision to leave Flat GE in early 2012 before it was properly cleaned and dried out had a deleterious effect on Flat GE. Flat GE suffered significant deterioration and damage, which were exacerbated by persistent water replenishment as it was closed up with active leaks through the GE Structures, rising damp and persistent intrusion of ground water from the floor slab, water seepages from the skylights and external walls particularly at the joints of glazed glass block tiles, and by poor ventilation with (a) only 1 dehumidifier that stopped automatically as soon as the water bucket filled up and (b) artificial ventilation for short durations during Loke Jr’s occasional visits. The high humidity encouraged serious condensation and growth/proliferation of mould colonies.
399. In the Joint Report, the Experts agreed Flat GE was unattended after the 06/11 Incident and its condition was compounded by the water-related incidents in April 2013 (including flooding by foul water) without any remedial clean up. With no proper cleaning and drying up, the foul water / dampness in Flat GE were left to fester with abundant bacteria and mould growth, which together with water replenishment, serious condensation and poor ventilation as explained above led to accelerated decline of the condition of Flat GE as noted by Loke Jr and the Experts. As a result, previously unaffected areas became affected and the pre-existing affected areas (ie the Cabinet/Bathroom Areas) suffered additional damage. This was contrasted to Flat 1E in which the new tenant promptly cleaned up and made repairs to D1’s cost, and Flat 1E remained habitable. In my view, Mr Brown was not far wrong in saying Flat GE was abandoned to its fate. I agree that even if leakages from the External Sink and Shower Cubicle Drainpipes were a cause of the water damage to Flat GE for which Ds would be liable based on the assumption in paragraph 377 above (which I disagree), by the time of the Experts’ inspections of Flat GE in 2013/2014, a vast majority of the damage seen was not caused by Ds but by a number of factors for which blame could not be laid at Ds’ door:
| (a) |
Lack of ventilation – Flat GE did not have windows for natural ventilation (except for the small GE Window) and had to rely on the ACV System which was suspended after P left in early 2012, so condensation was encouraged. In the Ho Report, Ho opined that waste water was one of the main causes for bacteria / mould growth causing bad smell inside Flat GE, and the lack of ventilation also caused deterioration of the finishes in Flat GE. This was also evident from the Joint Report which confirmed that whilst there was mould growth and watermarks on the surface of the false ceilings, wooden furring and furniture, there was none behind the false ceilings and wooden furring when they were removed on 24 June 2014. |
| (b) |
Presence of serious condensation – The Experts agreed condensation at Flat GE had existed for a long time with mechanical ventilation being the only means of ventilation in Flat GE. With persistent water replenishment as aforesaid, absence of natural ventilation, ineffective mechanical ventilation and lack of maintenance and routine cleaning, condensation became a long-term problem.[201] The Experts also agreed the maintenance of high relative humidity in Flat GE rendered it susceptible to condensation and favoured mould growth. Indeed, the Experts in the Joint Report confirmed serious condensation was found on all surfaces (including surfaces of the false ceilings and wooden furring) during their inspection of Flat GE on 24 June 2014. |
| (c) |
Rising damp – The Experts agreed water intrusion from the ground was evidenced by the presence of water appearing on the floor and inside electric conduits at ground level. Wu explained it was natural for the ground to receive/lodge ground water which explained why the ground floor slab must be waterproof and why a damp-proof course/layer had to be laid under the ground floor slab during construction of the Building. If the ground floor slab remained undamaged, the damp-proof course/layer would not be affected even over time. But the installation of the Courtyard Manhole meant the ground floor slab had to be dug up to lay the associated drainpipes, which in turn meant the damp-proof course/layer was damaged. As a remedial measure, the White Floor Cover being a surface mounted waterproofing layer was laid on top of the ground floor slab to resist negative pressure from the ground water and to prevent ground water intrusion into Flat GE. But (according to the Joint Report) rising damp was observed on all surfaces of the lower portion of the walls/ columns (but no watermark or mould growth seen at mid-height of such walls/columns). Wu also observed that (i) the whole Rear Lane was wet with a pipe/drain dripping down continuously and (ii) there had been rainfall flooding at the external wall of the Courtyard Structure (with waterlines showing mark of such flooding on such external wall). Hence, Flat GE was a dampened area, and ground water could seep into Flat GE through the damaged damp-proof course/layer. The Experts also explained that warmth from sunlight through the skylights would encourage vaporisation of water trapped underneath the White Floor Cover, and air pockets would develop as water vapour expanded during such process and would be filled by ground water to become water pockets (B6/1111 at (c)(ii)). |
| (d) |
Presence of active water leakage at the GE Structures – The water spray tests done at the Rooftops in 2014 by Wu showed colour-dye water seeped into the interior part of Flat GE which indicated that the Rooftops’ waterproofing was defective, so the Experts agreed that during heavy rainfall rainwater could enter Flat GE through weak points of the GE Structures and also through the external walls particularly via the joints of glazed glass block tiles. |
400. P made no effort to repair the Rooftops to prevent leaks and to reduce water replenishment, to clean up / dry out Flat 1E to reduce bacteria/mould growth and/or to install proper damp-proof course/layer against the rising damp. P claimed she could not renovate Flat GE because of continued leaks from Flat 1E, but the Experts agreed that latest by the time they inspected Flat GE in mid-January 2014 there were no further leakages from Flat 1E. All P could say (but I do not accept) was that her personal experience at Flat GE before early 2012 was different from the Experts’ findings, and therefore she did not take steps to tidy up or repair Flat GE. In my view, any enhanced and accelerated damage to Flat GE by reason of the aforesaid matters (which essentially amounted to failure to reasonably mitigate) could not be laid at Ds’ door, and in light of the accelerated progress of deterioration of Flat GE due to these other factors after the 06/11 Incident and the water-related incidents in 2013 (for which Ds were not liable), the damage caused by leakages from the External Sink / Shower Cubicle Drainpipes paled when compared with the more extensive damage caused by these extraneous factors for which Ds could not be blamed. If Ds were found liable to P (which I disagree), I would not say the water damage from the External Sink / Shower Cubicle Drainpipes became irrelevant, but I find it more likely than not that such damage was overtaken and subsumed by the more aggressive condensation, water replenishment, rising damp and bacteria/mould growth brought on by these extraneous factors in the Cabinet/Bathroom Areas and other areas of Flat GE. It must also be remembered that (a) the 06/11 Incident and the backflow flooding caused by blockage of Manhole A in 2013 had significant effect on the GE Master Bathroom, and (b) the 4 active leaking points Wu sighted on 24 June 2014 were in the Yard Structure at or close to the Cabinet Area.
XXXI. APPORTIONMENT OF LIABILITY/LOSS
401. So even if Ds were liable to P for nuisance/negligence in respect of water damage caused by leakages from the External Sink / Shower Cubicle Drainpipes (which I disagree), the foregoing matters raised nice issues as to apportionment of liability / loss vis-à-vis Ds as some loss/damage could not be laid at their door, and the extent/scope of D1’s liability might well be different from that of D2’s/TP1’s. But P and Mr Fong did not address these matters in evidence and/or in written submissions. Mr Brown submitted that in such circumstances the court should err on the side of caution to ensure Ds would not be visited with unwarranted liability and to further ensure D2’s/TP1’s liability (which was at least temporally more limited) would not be enhanced by virtue of P’s failings.
402. All Mr Fong submitted in his oral closing submissions was that P sought loss based on Flat GE’s condition as at 2012, but there was nothing much to show the condition of Flat GE in 2012 except P’s description and some photographs taken in June 2011 concerning the 06/11 Incident. But as I have found Ds were not liable for the 06/11 Incident, those photographs did not give insight as to the condition of Flat GE in 2012 and/or the more limited damage for which Ds were liable. Further, the approach suggested by Mr Fong did not take into account the following matters which were of note in light of the foregoing discussion and my factual findings:
| (a) |
Ds could only have been liable for leakages from the External Sink / Shower Cubicle Drainpipes for the relevant periods discussed in paragraph 356(c)‑(f) above; |
| (b) |
Ds were not liable for damages caused by extraneous factors, eg rainwater ingress, other water sources, condensation, rising damp, lack of or poor ventilation, etc; |
| (c) |
Ds were not liable for damages caused by P’s contributory negligence and/or failure to mitigate; and |
| (d) |
Ds were not liable for the Conceded Loss. |
403. With the above in mind, I turn to assessment of the quantum of loss and damages. I pause here to note that P no longer sought injunctive relief as the leakages from Flat 1E had ceased.
XXXII. QUANTUM OF DAMAGES
404. I proceed to consider the quantum of damages on the assumption (which I disagree) that Ds were liable to P (without taking into account contributory negligence) for loss in connection with leakages from the External Sink / Shower Cubicle Drainpipes for the relevant periods in paragraph 356(c)-(f) above. Ms Wong submitted (and I accept) that generally an award of damages is to compensate the claimant for losses sustained as a result of the defendant’s tort and to put him in the same position as he would have been in as if the defendant has not committed the wrong complained of. The burden is on P to prove her loss. Mr Brown submitted that if she failed to do so, nominal damages was all that would be available.[202]
405. P’s claim for damages could be grouped under 4 broad heads: (i) costs incurred for repair to damage caused by the water leakages in 2007-2008, (ii) costs of renovation works to be carried out, (iii) deprivation of use/enjoyment of a substantial part of Flat GE, and (iv) discomfort, inconvenience and disturbance. P pleaded her claim for loss and damages as follows:
| 1 |
Cost of replacing damaged washing machine in August 2007 |
$12,980 |
| 2 |
Cost of renovation of damaged areas in November/ December 2007 |
$62,900 |
| 3 |
Hotel stay during renovation in November/December 2007 |
$8,500 |
| 4 |
Costs of the New Cabinet damaged in March 2008 |
$14,700 |
| 5 |
Cost of dismantling dampened wall and re-painting bathroom ceiling in March 2008 |
$4,500 |
| 6 |
Cost of re-fixing bathroom ceiling in October 2008 |
$1,000 |
| 7 |
Loss of enjoyment of 60% of Flat GE from November 2006 to March 2012 for 54 months (November 2006 to March 2011) x ratable value of $29,890/month plus 11 months (April 2011 to March 2012) x ratable value of $35,390/month x 60% |
$1,202,010 |
| 8 |
Estimated cost of renovation to be carried out (based on Ho’s estimation (B1/26-44) of $1,361,742 (“Ho’s Estimation”) less cost burglar alarm system of $49,624) |
$1,312,118 |
| 9 |
Loss of enjoyment of the entire Flat GE pending rectification of defects of the Flat 1E and renovation of the Flat GE |
$35,390 per month as from April 2012
|
| 10 |
Discomfort, inconvenience and disturbance from November 2006 to March 2012 ($12,000 per month x 65 months) |
$780,000 |
For item 8 above, Mr Fong by his written closing submissions reduced the amount claimed to $380,163. Thus, P claimed a total sum of $2,466,753 plus loss of enjoyment of the entire Flat GE at the rate of $35,390/month from April 2012 until Flat GE was renovated/repaired together with interest and costs.
(a) Costs already incurred
406. Replacement of washing machine P claimed the water leakages damaged the washing machine in the GE Laundry Room, which was eventually replaced. But I have found Ds were not liable for water attack in the Laundry Area, so this head of claim against Ds would have failed. In case I am wrong, I turn to the quantum claimed, ie cost of a new washing machine bought in August 2007 for $12,980, which was supported by the Desptach Order dated 24 August 2007 issued by Miele (Hong Kong) Limited (“Miele”),[203] and P claimed she gave the cheque to Miele’s staff when the new washing machine was delivered.
407. But there was an earlier service invoice dated 18 August 2007 issued by Miele which suggested there was change of spare parts for the washing machine in the sum of $5,270,[204] and another Service/Invoice No 2007-KD 214737 dated 23 August 2007 issued by Miele (C2/183) that recorded the follow up action was “user buy new one not repair * (we test water damage) W3240 [possibly a model number] $12,980 6KG [possibly the washing capacity] ……” These service invoices formed the basis for P’s demand in her / Loke Sr’s letter dated 1 March 2008 to Ds (see paragraph 237 above) and for P’s Form of Claim dated 29 April 2009 (C2/195) in the SCT Action in which P claimed for “Damage to washing machine - replace parts: $5,270 two visits + labour work – for washer: $650”. P agreed the sum of $650 was labour cost referable to the 2 service invoices dated 18 and 23 August 2007.
408. P’s / Loke Sr’s letter dated 1 March 2008 was sent and the SCT Action was commenced long after P replaced the washing machine, but no claim was made for the replacement cost. P explained that when Miele’s technician first came to check the washing machine he found its electronic display panel was water-damaged[205] and suggested to P to have it replaced, but when it was replaced a few days later a lot of functions still did not work so the technician told P the washing machine could not be repaired and P should get a new one, whereupon P decided to replace the washing machine which led to the aforesaid dispatch order. But if that were the case, I see no reason for P to claim for cost of parts/labour and not cost of replacement in her demand by letter dated 1 March 2008 and in the SCT Action. P insisted she was just being fair to Ds, but I do not see why, on P’s case, she would favour Ds with unwarranted reduction of her claim that did not reflect her true loss. When pressed, all P could say was the sums of $5,270 and $650 were what she “…… worked out at the time when [she] lodged the claim with [the Tribunal]” in respect of damage to the washing machine due to water leakage. I reject this since P made such claim a year before in her / Loke Sr’s letter dated 1 March 2008 to Ds. In my view, P was being fair to Ds by claiming for cost of parts/labour and not cost of replacement because the washing machine could have been repaired by change of parts but she chose to buy a new one. So, had Ds been liable (but they were not), the quantum of loss under this head (on full liability basis) would have been $5,920.
409. Cost of renovation in November/December 2007 I refer to Kong’s Invoice dated 17 December 2007 in the total sum of $62,900 in paragraph 227 above. P confessed it was Loke Sr who liaised with Kong’s, and she did not have any clear idea as to what works were done and why they were required. As explained in paragraph 228 above, I am unable to see why Ds should be responsible for any works under items 1-7 in Kong’s Invoice save for a limited part under item 2. Repairs to the Rooftops (item 1) was not Ds’ concern, and I have found items 3, 4, 5 and 7 had no relevance to water leakages at Flat GE. As for item 2, Ds were not liable for water leakages in the Laundry Area and/or the GE Helper Toilet, so they could not be liable for the cost of repairing/re-painting the ceilings/walls in such areas, but on the aforesaid assumption as to liability, they would have been liable for the cost of re-fixing and re-painting the false ceiling of the GE Master Bathroom (excluding the New BRm Area as a result of the Concession) and at Extension X (excluding the rest of the Cabinet Area which was within the Yard Structure and caught by the Concession). By using the cost in items 5-6 in P’s pleaded claim in paragraph 405 above as reference, and taking into account a proportionate sum for item 6 of Kong’s Invoice, the quantum under this head of loss would not have exceeded $6,000.
410. I also note with interest P claimed $27,000 as “Repairment to damaged ceiling, marble wall” in P’s / Loke Sr’s letter dated 1 March 2008 to Ds and in the SCT Action, but she was unable to say how she worked out such claim in 2009 in light of Kong’s Invoice. Her suggestion of having taken out some unrelated items (eg item 3) in Kong’s Invoice would not have led to the sum of $27,000, especially when there was no mention about repair to marble wall in Kong’s Invoice. In the end, P was constrained to say she excluded items of work in the Kong’s Invoice that she thought was unrelated to water leakages at Flat GE from her claim in the SCT Action. But if that were the case, then even on her own case, P could not have claimed for the full amount of Kong’s Invoice in the Main Proceedings.
411. Cost of alternative accommodation during renovations in 2007 As P did not move out when similar works in relation to the ceiling in the Bathroom Area were done in October 2008 and before Chinese New Year in 2011, I see no basis for P to claim for alternative accommodation for carrying out such works. In any event, such claim had inherent concerns. P said she stayed at the Ramada Hotel for 1 week in November/ December 2007 at a cost of $4,900 (C2/196), which formed a head of claim in P’s / Loke Sr’s demand letter dated 1 March 2008 to Ds and in the SCT Action (C2/195). But in the Main Proceedings, P claimed $8,500 for hotel stay, and produced another invoice by Hotel Benito addressed to Loke Sr in the sum of $3,600 for hotel stay from 3-10 December 2007 (C2/187). P explained that “[basically], renovation work had been completed after the first week, but there were some small items …… of repair [listed in Kong’s Invoice] which I wanted to do during the second week, and for health reason, I didn’t want to move back right then. At the time when I …… lodged a claim with the [Tribunal], I only claimed the cost of stay for the first week because, to me, the stay during the second week was unrelated to the water damage. That’s why I only claimed for the stay for the first week”. In re-examination, P insisted the 2nd week of hotel stay was necessitated by “…… a strong smell coming out from [Flat GE], perhaps because of the decoration material used, so the smell was too strong”. I disagree. Even if there was strong odour, it would be due to works unrelated works under Kong’s Invoice, which in my view was probably why P did not claim for cost of the 2nd week of hotel stay in the SCT Action. Anyway, there was no such claim even a year before in P’s / Loke Sr’s letter to D dated 1 March 2008 which was closer in time to such repairs / hotel stay.
412. Cost of the New Cabinet P claimed the cost of the New Cabinet that replaced the Old Cabinet in the sum of $14,700 as per the invoice by Kong’s dated 16 December 2007 (C2/188, see paragraph 229 above). As I have explained in paragraphs 88 and 229 above, the Old and New Cabinets were quite different. P said the New Cabinet was smaller and more simple than the Old Cabinet, and I accept it was more recessed than the Old Cabinet and only had open shelves at the top part. But in another sense the New Cabinet was an improvement in that the New Cabinet Extension was custom-built and mounted with acoustic cloth to house Loke Sr’s new Speakers (whilst the Old Cabinet did not house any speakers). In my view, P’s entitlement to damages should be measured by the costs of replacement or repair of damaged property, and the fact P / Loke Sr chose to have a smaller and more simple built-in cabinet to replace the Old Cabinet was merely mitigation of loss. As such, P would only be able to recover the cost of the smaller and more simple replacement cabinet, but she was not entitled to claim cost for improvement to her property, ie the New Cabinet Extension.
413. Further, P’s claim was strangely inconsistent with her claims of $1,000 for “Removal of re-damaged cabinet” and $8,700 for “Cabinet replacement (Quotation)” in the SCT Action. P explained that “I paid the $1,000 for the removal of the cabinet but that worker simply removed the cabinet without giving me an invoice and he left afterwards”, and she paid the cost of cabinet replacement in the sum of $8,700 which represented the total of various amounts supported by invoice and/or “cabinet replacement quotation” given to her. P believed she paid such sums probably in late 2007 after the work was done, so she included such sums in her claim in the SCT Action. But if P had paid the total sum of $9,700, her present claim for $14,700 was not understood. Further, the New Cabinet had been installed for some time when P commenced the SCT Action, and she did not explain why she did not use Kong’s invoice dated 16 December 2007 as the basis of her claim in the SCT Action but relied on some unknown invoice and/or “cabinet replacement quotation”. When pressed, P changed to say that the claim for $8,700 in the SCT Action was the cost of the Old Cabinet that was removed possibly in August 2007 before Kong’s carried out repairs in November/December 2007, and that whilst the cost of the New Cabinet was $14,700, “…… as I saw that the damaged [Old Cabinet] only cost $8,700, that’s why I just claimed $8,700 ……”.
414. P’s wavering evidence on the basis of her claim for $8,700 in the SCT Action was unreliable. She did not disclose/discover the “cabinet replacement quotation” in the Main Proceedings, and did not give any good reason for not doing so, so it was difficult to accept her allegation that such claim was based on such quotation. As regards her different explanation that $8,700 was the cost of the Old Cabinet, such claim was made on the wrong footing in that it was not the relevant compensatable loss, but at least it was some recognition that P was not entitled to claim for improvement. Turning to the claim based on Kong’s invoice dated 16 December 2007, the only possible claim (if Ds were liable to P) would have been item 1 in the sum of $5,200 (see paragraph 229 above) as items 2-3 concerned the New Cabinet Extension that were obviously improvements for which Ds would not be liable. However, as the New Cabinet was fully within the Yard Structure, given P’s Concession not to claim for loss of enjoyment/use of the GE Structures (including the Yard Structure), it is difficult to see how P could claim for the cost of the New Cabinet that pertained to enjoyment/use of the Yard Structure.
415. Cost of dismantling dampened wall and re-painting bathroom ceiling in March 2008 and cost of re-fixing bathroom ceiling in October 2008 It was said the former works in March 2008 cost $4,500 and the latter works in October 2008 cost $1,000. But P in her witness statement claimed that when water leakages resumed in October 2008, she spent $5,500 for removal of the damaged ceiling of the GE Master Bathroom (see paragraph 264 above), which did not sit with P’s pleaded claim as aforesaid. I have also found P re-fixed/re-painted the ceiling of the GE Master Bathroom in late 2007, early 2008, October 2008 and before Chinese New Year in 2011 (see paragraph 288 above). Further, P’s claim also did not sit with her claim in the SCT Action in 2009 for $27,000 being cost of repairs to damaged ceiling and marble walls (that presumably took into account works done in November/December 2007 and the aforesaid re-painting and re-fixing works in March and October 2008). But P did not explain the differences in her claims in the SCT Action and in the Main Proceedings.
416. Moreover, the dampened wall that was dismantled referred to the brickwork wall at the back of the New Cabinet Extension (see paragraph 232 above) in the Yard Structure. By the Concession, P abandoned any claim for repairs to the structure, envelop and/or fabric of the GE Structures (including the Yard Structure), so P could not claim for cost of dismantling the dampened wall as it was clearly a Conceded Loss. As for re-painting and re-fixing the ceiling of the GE Master Bathroom in March and October 2008, the affected area in the GE Master Bathroom would be at Locations B but closer to Location U (see “Floor Plan 5” and “Floor Plan 6” of the 2nd FBP). Even assuming the re-painting and re-fixing of the ceiling of the GE Master Bathroom covered the ceiling area between Locations TB and U in the Original BRm Area near the door opening that separated the Original/New BRm Areas, I have found that water leakages from the External Shower Cubicle Drainpipe seeped through defects in the Light Well Rooftop into the Bathroom Area, ie the water route was by way of the Light Well Structure. In light of P’s Concession that abandoned claims for loss of enjoyment/use of the GE Structures and for discomfort, inconvenience and disturbance that P might suffer due to the condition of the GE Structures (including the Light Well Structure), it is at best doubtful whether P would be entitled to claim for cost of repairs to the affected ceiling in the Bathroom Area brought about by the water leakages due to the defective condition of the Yard Structure (and I note Locations B were under the seam where the Light Well Structure met the parent structure which I have found was likely to be a weak point that allowed water ingress that caused discomfort, inconvenience and disturbance to P in using the GE Master Bathroom part of which was in the Light Well Structure).
417. In all the circumstances, given the difference in the claims for this head of loss in the SCT Action and the Main Proceedings, the lack of supporting document and credible explanation, and the effect of the Concession on such claim, I am not persuaded P has satisfactorily proved this head of claim. But even if I am wrong and P was entitled to claim for the cost of works to the bathroom ceiling, the quantum on full liability basis would have been ($4,500 ÷ 2) + $1,000 = $3,250.
(b) Estimated costs of renovations
418. P’s amended pleadings claimed a total sum of $1,312,118 for estimated renovation costs based on Ho’s Estimation except for the cost of burglar alarm system of $49,624 (B1/23-45). But Ho’s Estimation was not based on actual damage caused by P’s complained water leakages, and was based on (a) renovation works for an entire refit of Flat GE (B1/23-25), and (b) a quotation for renovation works in 2000 (“2000 Quotation”).
419. In respect of (a) above, Ho said Ho’s estimation “…… was made basing on an assumption that the damaged [Flat GE] would be reinstated to its original condition before the damage was done”. This, in my view, reflected misunderstanding of the scope of compensatory damages, which were to address the loss caused by the complained water leakages for which Ds were found liable (if at all). Consequently, wholly inappropriate items were included in Ho’s Estimation,[206] which probably explained why Mr Fong in his written closing submissions limited P’s claim under this head to $380,163. But Ho’s inappropriate approach lent weight to the overall unreliability of Ho’s Estimation.
420. In respect of (b) above, P said the cost of renovations at Flat GE in 2000 was roughly reflected in Ho’s Estimation, which P said was premised on a quotation by Kong’s. P gave a pile of documents to her solicitors, but could not remember whether such documents included the 2000 Quotation. However, there was no dispute that the 2000 Quotation was not disclosed/discovered.
421. Ho claimed “[Ho’s Estimation] was done based on the items of repair I deemed appropriate or necessary, but it is true that for the price I adopted what had been stated in [2000 Quotation], plus a reasonable inflation”. But if the renovation items in Ho’s Estimation was his own idea, it immediately raised question about Ho’s lack of understanding of the true purpose of the exercise as explained in paragraph 419 above. Further, if the costings were simply the opinion of maker of the 2000 Quotation, it was also questionable whether Ho as expert could adopt the maker’s opinion/ estimation as his own without stating his own reasons for adopting such costings and/or producing the 2000 Quotation, especially when the estimated costings were important for this head of claim. I note Appendix G to the Ho Report (B3/470-603) was a bundle of supporting documents P provided to Ho that included the Renovation Plan made in 2000 but not the 2000 Quotation. Ho confessed it was his omission, and went on to say P (not P’s solicitors) actually gave him via Sky a cardboard box of several 10 pages (including the 2000 Quotation), which documents he used to prepare Ho’s Estimation and which should still be in his office although part of them might have been “mixed up with something else”. In fact, none of these documents were disclosed/discovered in the Main Proceedings, and when pressed on which part of Ho’s Estimation relied on the 2000 Quotation, all Ho could say was “[there] are many items with brand names and company names, those were items with supporting documents, with figures and quotations, but there are other decorations, like painting work, those were based on contemporary prices rather than basing on the quotation” (my emphasis). But Ho did not say how he derived such “contemporary prices” in Ho’s Estimation or explain why all renovation items in Ho’s Estimation in total sum of $1,361,742 (inclusive of the cost of the burglar alarm) was inflated across the board by 30% to arrive at the sum of $1,770,265 if some costings were “contemporary prices”. All these matters sufficiently pointed to the unreliability of Ho’s Estimation, and there was no need for me to go on and consider Mr Brown’s complaint that there had been no reduction for depreciation in Ho’s Estimation when Ho adopted the costings in the 2000 Quotation.
422. But more importantly Ho abandoned reliance on Ho’s Estimation during the Experts’ joint meetings as it was not premised on actual damage (B8/1509 and 1534). Indeed, in the Joint Report, Ho by his own hand wrote “to abandon the proposal for the agreement on actual damage and repair work only” and “agree to abandon this proposal”, and personally countersigned such notations. Ho confirmed under cross‑examination that at the Experts’ joint meetings he agreed with Wu the estimation of renovation costs should be on actual damage basis (which necessarily raised the concerns in paragraph 419 above), but he claimed that due to the Experts’ failure to reach consensus over Ho’s Estimation, “…… what we were thinking was for the question of liability to be cleared first before we would try to work out the real cost of — for repair and renovation …… [and] before we would make a new estimate”. But such poor answer was blown away paragraph 3.1 of the Joint Report in which Ho confirmed he was instructed “[to] estimate the costs for the repair works for the alleged damage in [Flat GE]”, and paragraph 4 of the Joint Report which made clear “[the] matter to be addressed in the Joint Statement are: (A) The liability. (B) The quantum” (see paragraph 328 above). In any event, I am unable to see how the Experts’ inability to reach consensus would have prevented Ho from putting forward his solo position on quantum as per his own instructions and his understanding of the scope of the Joint Report.
423. Mr Fong referred me to Wu’s handwritten notation in the Joint Report that “[as] the subject matter could not be resolved without sufficient information, legal advice should be sought accordingly”. But this would not take the matter any further for P. After all, it was for Ho as P’s expert to put forward his estimation of the relevant renovation costs for Wu to comment, but with Ho abandoning Ho’s Estimation, there was plainly (as Wu said) insufficient information for him to proceed, and hence legal advice was required. But Ho later changed to say that as “…… no consensus reached by the [Experts], …… the old proposal about cost of renovation or repairs should still be effective”. But later when pressed again as to whether he did abandon Ho’s Estimation, Ho reverted to say “[yes], agree, but we did not discuss or talk about how a new estimate should be calculated”.
424. In my view, it was plain Ho abandoned Ho’s Estimation for good as he recognised his approach to reinstating/refitting Flat 1E to its former glory was not reflective of proper compensatory damages, which abandonment could not be and was not dependent on the Experts reaching any consensus over a new estimation. The fact that the Experts could not agree on estimated renovation costs would not have affected Ho’s decision to jettison Ho’s Estimation due to its own inherent impropriety. Ho having so abandoned reliance on his estimation and without putting forward a new estimation, there little basis (except for Wu’s observations) to support this head of claim.
425. The above probably influenced the reduction for this head of claim from $1,312,118 to $380,163 in Mr Fong’s written closing submissions. The reduced claim of $380,163 was said to comprise the following:
| (a) |
$54,500 – cost of (i) preliminary items (ie insurance and third party liability insurance), (ii) sterilising and cleaning, and (iii) removing and carting away all existing fixtures, furniture and debris, and project management and site supervision (B1/26); and |
| (b) |
$325,663 – cost of renovations for the GE Living/Dining Areas, GE Study Room, Loke Jr Bedroom, GE Master Bedroom, GE Laundry Room, GE Master Bathroom, Loke Jr Bathroom, GE Helper Toilet, and GE Kitchen (eg new installation of ceilings, removal of existing paint and application of new paint to ceilings, new installation of wooden false ceiling with openings, new installation of false ceiling with concrete, new installation of flooring(s) and skirting, and supply of mountain lumbar flooring) (B1/30). |
426. Mr Fong submitted Wu’s total estimated costs of $40,500 (based on his critique of Ho’s Estimation) was wholly unrealistic. But I note with interest that P’s original pleaded claim in her Statement of Claim filed on 13 June 2012 in the Main Proceedings sought a sum of $55,000 for cost of estimated renovations to be carried out. P in re-examination explained that such estimation was provided by another (ie not Ho) a long time ago, and Loke Sr then made enquiries with Kong’s on how much it would cost to carry out renovations for the water damage. If the estimation of $55,000 was from Kong’s, then it was an estimation by a contractor who (a) was familiar with Flat GE, (b) had previously carried out repairs to deal with the water damage, and (c) had re-fixed and re-painted the ceilings/walls and carried out other works at Flat GE, and could not be simply brushed aside as being unrealistic.
427. Further, on my findings, even if Ds were liable to P, Ds could only have been liable for renovation costs caused by leakages from the External Sink and Shower Cubicle Drainpipes, so they would not have been liable for renovations to the GE Living/Dining Areas, GE Study Room, GE Master Bedroom and GE Laundry Area. Even on P’s own case, Loke Jr Bedroom, Loke Jr Bathroom, GE Kitchen and GE Helper Toilet were wholly unaffected by P’s complained water leakages in the Cabinet/ Bathroom Areas. In view of P’s Concession which excluded any claim for repairs to the structure, envelop and/or fabric of the Yard / Light Well Structures as abandoned Conceded Loss, it was difficult to see how P could recover cost of renovations for the GE Living/Dining Areas being the Cabinet Area that was within the Yard Structure. That essentially left the cost of proposed renovations to the Original BRm Area (excluding repairs to the GE Master Bathroom within the Light Well Structure in light of P’s Concession). Quite apart from the nice question of whether P could recover estimated costs for such renovations when the water damage was caused via seepage through the defective Light Well Rooftop (as discussed in paragraphs 416 above), I do not understand why (a) a new ceiling (if it was the structural ceiling) had to be installed (see item F/i) for the Original BRm Area, (b) why there was overlap with item F/ii if the new ceiling in item F/i was instead a false ceiling, (c) why the proposed false ceiling was a wooden one in item F/ii when the pre-existing one was made of permeable gypsum board, and (d) why existing paintwork had to be removed when (as Wu explained) there would not be any paintwork on any newly installed ceiling or false ceiling. I also take note of (and accept) Wu’s observation that the overall ceiling size of the GE Master Bathroom (including the New BRm Area) was 7.62m2 and not 18m2 as Ho suggested, so the ceiling size of the Original BRm Area would have been even smaller and the relevant renovation cost would have been less. Bearing in mind that previous cost for dismantling dampened wall and re-painting and re-fixing bathroom ceiling in March and October 2008 was said to be $5,500, I find that even at current rate based on Ho’s suggested inflation rate of 30% the estimated renovation cost would not have exceeded $8,000.
428. But it must be remembered that the GE Master Bathroom suffered from serious water leakages by flush water during the 06/11 Incident in 2011 and by foul water during the sewage blockage of the Block A Manhole in 2013. If any renovations were to be done for the Bathroom Area, repairs for water damage caused by leakages from the defective External Shower Cubicle Drainpipe via the defective Light Well Rooftop and repairs for the abovementioned water-related incidents in 2011/2013 would have been concurrent renovations. In my view, the nature and time required for such renovations would not have been different, and I am unable to see any additional repairs needed for pre-2011 damage when there was more serious and acute water attack in 2011/2013 with their more serious sequelae (see paragraphs 398-400 above). In my view, on the basis of the relevant legal principles in paragraph 65 above, causal responsibility for the renovation cost due to water damage to the Bathroom Area was attributable to the serious water leakages in 2011/2013 (especially by foul water in 2013) and their sequelae for which Ds were not responsible.
(c) Loss of enjoyment of 60% of Flat GE and damages for discomfort, inconvenience and disturbance from November 2006 to March 2012
429. P claimed for (a) loss of enjoyment of 60% of Flat GE in the sum of $1,202,010 being ([$29,890 x 54 months (November 2006 to March 2011)] + [$35,390 x 11 months (April 2011 to March 2012)]) x 60% (“Amenity Claim”), and (b) damages for discomfort, inconvenience and disturbance in the sum of $780,000 (being $12,000 x 65 months) (“Inconvenience Claim”). P commenced the Main Proceedings in March 2012. These heads of claim concerned the period when P was still in occupation of Flat GE, and (on P’s case) had to put up with the discomfort, inconvenience and disturbance of dealing with the water leakage problem caused by Ds, her mental stress and physical discomfort, her need to regularly collect and mop up leaked water, her need to deal with repairs at the 3 Areas, the inconvenience of suffering electricity outages, the worry about her health and safety, and the trouble of having to deal with Ds, the BMO and the FEHD over the water leakages. But Ds expressed concern over risk of double recovery under these 2 heads of claim.
430. The Amenity Claim was to compensate P for the diminution in the amenity value of her property (ie Flat GE) owing to damage caused by the water leakages. Mr Fong explained the aforesaid formula required one to first ascertain the value for use of Flat GE, which he argued was reasonably reflected in the rateable value being an estimate of the open market rental value on the assumption that it was vacant and ready to let,[207] and since P lost 60% use of Flat GE during the period from November 2006 to March 2012, her loss of enjoyment was $1,202,010 under the formula set out in the above paragraph.
431. Ds denied P was entitled to claim for any loss of enjoyment:
| (a) |
there was no basis for P who was an owner in possession to claim for loss of enjoyment on rental assessment basis, hence the pleaded claim did not reflect P’s loss; |
| (b) |
P’s claim seemed to be based on actual floor area that P was unable to use during the 65 months (otherwise it would have overlapped with the Inconvenience Claim), but in reality P had not lost enjoyment of 60% of Flat GE for the whole period as claimed when (i) the water damage to Flat 1E was progressive and there were periods when P’s renovations led to a hiatus in water leakage complaints, (ii) the Floor Plans of the 2nd FBP showed only small part of Flat GE (148 sq m in size) was affected by water damage, and Ho’s/Wu’s measurements of the GE Master Bathroom were 18m2/7.62m2, (iii) certain parts of Flat GE were never affected by water leakages from Flat 1E (eg Loke Jr Bedroom/Bathroom, GE Helper Toilet, and GE Kitchen), (iv) certain parts of Flat GE were usable albeit affected by water leakages as P claimed (eg GE Laundry Room was useable throughout and GE Master Bathroom was usable except March to December 2007), and (v) although P claimed she was unable to use the GE Master Bathroom and had to use the GE Guest Toilet, she had to sleep at the GE Study Room due to dripping sound in the GE Master Bathroom and she could not use the Old/New Cabinets due to water leakages, there was no evidence that she was prevented from using other parts of Flat GE; |
| (c) |
the rateable value did not constitute proper basis for calculating the value of Flat GE for the purpose of assessing loss of enjoyment or any other damages. |
432. As explained in paragraph 69 above, the Amenity Claim was based on loss to the land, ie diminution of the value of Flat 1E caused by the water leakages from Flat 1E, rather than personal loss to P. The relevant loss was a valuation of the difference between the right to occupy Flat GE without such nuisance and the right to occupy Flat GE with it, or to put it in another way, a valuation of the loss in rental attributable to such loss of amenity caused by the nuisance.
433. Thus, the first step was to ascertain the underlying rental value of Flat GE. Since there is no evidence of market rental value, this raised question as to whether rateable value was an appropriate basis for such assessment. Mr Brown argued that the rateable value was only for assessing rates to be paid and did not represent the true market value of the subject property. In Poon Chi Hang v Lai Ho Sun,[208] a case on adverse possession of land, it was said as follows:
“46. As regards the claim for mesne profits, the plaintiff seeks to quantify this by reference to the rateable value of the property, which is $199,560 per year. It is trite that a claim to mesne profits may represent either the loss suffered by the wrongful use of another’s land, or the recovery of a gain unlawfully enjoyed by the occupier. To my understanding, the rateable value of the property represents neither of these losses, forming only the basis upon which rates are payable.”
434. In 皇河實業有限公司v Wan Chiu Yuen and Anor,[209] a water leakage claim, the parties’ respective valuers gave opinion on the market value of the afflicted property and made reference to the rateable value as part of the information used in arriving at their rental valuation. Although the rateable value is an amount equal to the rent assessed by the Commissioner of Rating and Valuation at which a property might reasonably be expected to let from year to year pursuant to the Rating Ordinance Cap 116 on the basis that the tenant undertakes to pay all usual tenant’s rates and taxes and the landlord undertakes to pay the government rent, the costs of repairs and insurance, and any other expenses necessary to maintain the tenement in a state to command that rent (see section 7(2)), DDJ R Lai (as he then was) noted as follows:
“204. ……. Of course special features of individual property such as internal decoration; historical nature of the information obtained by the Rating and Valuation Department and change of market conditions after the designated valuation reference date will all affect the valuation of market rental at a particular date. It should also not be forgotten that the rateable value of a property is assessed for the purpose of determining how much is payable as rates for the property. Various adjustments have been made by the Rating and Valuation Department to the data collected to achieve the statutory purposes. The rateable value is not the exact rental which a particular property may fetch in the open market but it provides a useful reference of the market rental of a property.”
435. Mr Brown fairly drew my attention to the obiter observations by HHJ Mimmie Chan (as she then was) in paragraph 91 in Larbons Limited to the effect that had the defendant been liable, she would have considered the rateable value of the damaged property in the absence of sufficient evidence of market rent. From the judgment, it did not appear this matter had been seriously argued before the learned judge, and in any event such observation was obiter. I prefer the view that whilst the rateable value may be a useful reference in assessing the relevant market rent, it would not be a direct and/or true measure of market rent.
436. In my view, this is particularly true for Flat 1E which had special features that were unusual for a domestic flat, eg it was window-less except for the small GE Window and was completely reliant on the ACV System for ventilation, and it was substantially modified with 3 GE Structures that were UBWs, which factors could not have been taken into account by the rating authority in arriving at the rateable value. Further, there was no evidence that Flat 1E was intended to be let. I am not persuaded the rateable value properly reflected the marketability and market rent of Flat GE with such unique features.
437. Even if I am wrong and the rateable value represented the market value of Flat GE, the second step was to consider the notional reduction in rental value to reflect the loss of amenity. This would not be cable of precise estimation, and in my view it could not have been calculated on the basis of loss of usable floor area. Ds were right in saying that such loss of use by reason of leakages from the External Sink and Shower Cubicle Drainpipes through the defective Yard / Light Well Rooftops were progressive, and in any event would not cover 60% of Flat GE (especially when the Concession excluded the Yard / Light Well Structures). Thus, the remaining damaged areas were really quite limited, and even taking into account P’s perception of the water leakage problem (which I find to be somewhat exaggerated), the considerations in paragraph 429 above (but excluding water leakages in November 2006 and water-related incidents in 2011/2013, the Concession / Conceded Loss, the hiatus from January to October 2008 in respect of water leakages at the Bathroom Area, and parts of Flat GE that were unaffected or still in use despite being affected), I disagree there should be any notional deduction of 60%. I am of the view that on an overall basis, it would not have exceeded 12% for D1 when P was still in occupation of Flat GE (and 10% for D2/TP1 as its liability under this head of claim (which I disagree) would cease by end of June 2011).
438. But as I have concluded the rateable value would not properly reflect market rental for Flat GE, to ascertain the Amenity Claim one had to turn to the second approach as explained in paragraph 70 above, ie a global award of general damages for loss of amenity “whilst not losing sight of the fact that these are claims concerning land and where the damages awarded tend to be modest ……” In my view, there was no basis for P to seek any Inconvenience Claim in addition to the Amenity Claim. As explained in paragraphs 68 and 73 above, the 2 approaches by way of the Amenity and Inconvenience Claims were alternative ways of expressing the same concept, and P’s personal loss of amenity and inconvenience was equivalent (at least in value) to the impaired amenity of Flat GE when she remained in occupation of such afflicted property.
439. In respect of the Inconvenience Claim, it was said $12,000/ month was a reasonable monetary estimate that reflected P’s discomfort, inconvenience and disturbance, so her loss for the period from November 2006 to March 2012 was $780,000. I find this to be a wholly inappropriate approach in light of the legal principles discussed above. Indeed, Mr Fong referred me to Leung Yung Chun & anor in which there was serious water leakages in a newly built flat that affected several rooms (eg in the bedroom 2 bottles of water were collected), light switches had to be moved, and air-conditioner and cupboard could not be used. The occupants suffered “great inconvenience”, including frayed tempers, embarrassment with guests, inability to use certain parts of the flat, and having to put up with the defendants’ unreasonable attitude for nearly 2 years. Upon considering the relevant authorities, Cheung J (as he then was) considered an appropriate award for inconvenience was $130,000, which was significantly less than the amount P claimed.
440. I take into account all the circumstances including the considerations discussed in paragraphs 429 and 431(b) above, the periods in paragraph 356(c)-(d) above and P’s abandonment of the Conceded Loss under the Concession, and conclude that whilst P was discomfited by the deterioration in Flat GE due to water leakages (which for present purpose must be confined to those from Flat 1E, ie the External Sink / Shower Cubicle Drainpipes but excluding any discomfort, inconvenience and disturbance due to the condition of the Yard / Light Well Structures), the discomfort, inconvenience and disturbance from the water damage would not be as extensive as P would have this court find. I have reviewed the authorities cited by counsel including those in footnote 85 above and in Leung Yung Chun & anor and in Lam Kit Yee v Lam Shuk Lam & anor.[210] On such basis, a reasonable measure of damages for on-and-off inconvenience under this head of claim for the period from March 2007 to March 2012 would be $150,000 for D1 and for the period from March 2007 to end of June 2011 would be $120,000 for D2/TP1.
(d) Loss of enjoyment of entire Flat GE from April 2012 pending rectification/renovations
441. P also claimed for loss of enjoyment of the entire Flat GE from April 2012 (ie after she moved out of Flat GE) until renovation was done on the basis of monthly rateable value of $35,390. In his closing submissions, Mr Fong conceded that this head of claim would be limited to the period up to mid-January 2014 (ie when no water leakages from Flat 1E were observed by the Experts on their joint inspection). This meant P’s claim would be $35,390 x 22 months = $778,580. Ds disputed such claim.
442. The narrowing of P’s claim by Mr Fong’s concession set out in the above paragraph was necessarily on the premise that P could have mitigated loss by carrying out repairs after mid-January 2014 upon cessation of water leakages from Flat 1E. This necessarily brings into question when the water leakages at Flat 1E actually ceased because mid-January 2014 was merely when the Experts jointly inspected Flat GE and made the aforesaid observation. I have found that the water leakages from the External Shower Cubicle Drainpipe via the Light Well Rooftop to the Bathroom Area had ceased by May 2013 but there were still sequelae from the sewage blockage in April 2013 (see paragraph 323 above).
443. Secondly, even if Ds were liable to P (but I disagree), their responsibility was only in relation to leakages from the External Sink / Shower Cubicle Drainpipes. But from November 2006 until early 2012, P had continued to live at the afflicted Flat GE without need to move out (a) when she fixed and re-painted the ceiling of the GE Master Bathrooms 3 times, and (b) when she dismantled the Old Cabinet and installed the New Cabinet and fixed the false ceiling at Location X. In my view, even if Ds were at fault as aforesaid (which I disagree), the nuisance would not have reasonably caused P to move out of Flat GE even though as occupant she would have been discomfited by the condition of Flat GE. It was P’s contention that Flat GE was rendered uninhabitable by the 06/11 Incident, but I have found Ds were not liable for such incident. Ds went further to say that (a) it was P’s own decision to abandon Flat GE as she failed to properly clean up, dry out and maintain Flat GE, ie that the loss of use of Flat GE could have been reasonably avoided if P had attended to such matters, and (b) P could have checked/repaired the Rooftops any time irrespective of any leaking external drainpipes. In my view, there was force in such arguments.
444. Even more fundamentally, even if it was reasonable for P to move out of Flat GE (which I disagree), this would have been an act of mitigation on P’s part (see paragraph 73 above). Recoverable compensatable loss would be her cost of alternative accommodation (if any) for the period she could not reasonably live at Flat GE which could not be calculated on the basis of rental value of Flat GE (see paragraph 73 and footnote 86 above). The only evidence in relation to alternative accommodation was P’s assertion that she moved “into another flat (which is only about the size of the [GE Master Bedroom] in the same locality”. Indeed, P had not given any particulars of her alternative accommodation at all, including its address, layout, actual size and/or appointment. Not even a photograph of the alternative accommodation was adduced. More importantly, there was no evidence that P had to actually pay rent or licence fee for such alternative accommodation (and/or the amount thereof) although there was mention of looking for affordable alternative accommodation, and no tenancy/licence agreement was produced. In my view, P failed to meet the basic standard of proof for this head of claim.
(e) Summary
445. In the circumstances, even if Ds were liable to P (which I disagree), P would only have been entitled (on full liability basis) to the Inconvenience Claim of $150,000 against D1 and $120,000 against D2/TP1 as well as the cost of renovations in November/December 2007 in the sum of $6,000. But such amounts would have to be discounted by the factors discussed in paragraphs 399 above, and further discounted by water damage caused by other water sources not attributable to Flat 1E. Upon such discount, the ultimate award would have been very modest even if liability were found against Ds.
XXXIII. CONCLUSION
446. In all the circumstances, P’s claim against D1 and D2 is dismissed. There is no reason why costs should not follow event, and I grant a costs order nisi that P shall pay D1 and D2 costs of and occasioned by the Main Proceedings (including all costs reserved if any) to be taxed if not agreed.
447. Consequent upon such conclusion, I also dismiss D1’s claim in the Contribution Proceedings against D2 and also D2’s claim in the Contribution Proceedings against D1. I grant costs orders nisi that (a) D1 shall pay D2’s costs of and occasioned by D1’s claim in the Contribution Proceedings against D2 (including all costs reserved if any) to be taxed if not agreed, and (b) D1 shall pay D2’s costs and occasioned by D2’s claim in the Contribution Proceedings against D1 (including all costs reserved if any) to be taxed if not agreed, but P shall indemnify D1 in respect of payment such costs. In (a) above, I note D1 failed in her arguments about the Collateral Agreement, Improvement Works, and TPs’ duty to repair pipes/drains under the TAs and Addendum. But for (b) above, D2 did not suffer from such handicap in his claim in the Contribution Proceedings, but in the end such claim was unnecessary but for P’s now failed claim in the Main Proceedings.
448. I also dismiss D1’s claim against TP1 and TP2 in the Third Party Proceedings, and grant a costs order nisi that D1 shall pay TP1 and TP2 costs of and occasioned by the Third Party Proceedings (including all costs reserved) to be taxed if not agreed. I reiterate my observations under (a) in the above paragraph.
449. I had pondered whether it is necessary to refer this matter to the Buildings Department in light of the GE Structures being UBWs and the significant modifications to the approved layout of Flat GE that, say, rendered such domestic premises almost window-less. However, I find it unnecessary for this court to do so as the FEHD had already made referral to the Buildings Department in 2010 for follow-up action (see paragraph 275 above).
|
(Marlene Ng)
|
|
Judge of the Court of First Instance |
|
High Court |
Mr Raymond Fong, instructed by Kelvin Cheung & Co, solicitors for the plaintiff
Ms Emma Wong, instructed by K M Lai & Li, solicitors for the 1st defendant
Mr Toby Brown, instructed by MinterEllison LLP, solicitors for the 2nd defendant (1st third party) and 2nd third party
Schedule 1
Schedule 2
Schedule 3
Schedule 4
[1] see drawings nos 2-3 of the Wu 1st Report as referred to in paragraph 45 below
[2] see drawing no 4 of the Wu 1st Report
[3] see drawing no 1 of the Wu 1st Report and Schedule 1
[4] see drawing no 8 of the Wu 1st Report
[5] see drawing no 9 of the Wu 1st Report
[6] except for “a remaining portion of the external wall [hanging] at the upper portion [with] a gap of about 3mm thick between the 1/F floor slab and this remainder” (see paragraph 6.1.5(I)(A) of the Joint Report referred to in paragraph 45 below)
[7] see drawing no 5 of the Wu 1st Report
[8] the Old Cabinet was within the Yard Structure at the corner of the living and dining areas of Flat GE, so its location was referred to variously at the living area, dining area or both
[9] see footnote 8 above
[10] both foul water (eg sewage) and other waste water (eg bathing, washing machine and washbasin drainage water) would eventually go to the soil water manhole
[11] see drawing nos 6-7 of the Wu 1st Report
[12] which Ho surmised might also be pipe “A” marked in the bottom photograph on C1/79-80 taken by Loke Sr’s contractor in February 2008
[13] Wu said (and I accept) Exhibit P5 and the Bottom Photo showed the same area being the external Kitchen Wall above the Yard Rooftop (see also footnotes 120 and 154 below and paragraph 199 below)
[14] see drawing nos 6-7 of the Wu 1st Report
[15] the Experts considered such structural damage to be substantial but unnecessary, and should have been avoided since the false ceilings and wooden furring provided sufficient space and decorative cover for all electrical and mechanical facilities
[16] see drawings nos 2-3 of the Wu 1st Report
[17] see drawing no 4 of the Wu 1st Report
[18] in P’s 2nd Reply to Request for Further and Better Particulars of the Amended Statement of Claim filed on 26 February 2016 in the Main Proceedings (“2nd FBP”), P averred the GE Helper Toilet was a “damaged area” (in contra-distinction to a “leakage area”) marked pink on “Floor Plan 4” where Loke Sr arranged for renovations to be done in November/December 2007
[19] with no plea that such water leakages were caused by any defective drainage system of the 1E Master Bathroom
[20] with no plea that Ds created such nuisance
[21] ie (a) failing to ensure by inspection, maintenance and/or repair that water could not escape or leak from Flat 1E to Flat GE, (b) causing/permitting water to leak or escape from Flat 1E to Flat GE for extensive period of time, (c) failing to pay any or any sufficient heed to P’s complaints, and (d) failing to repair or replace defective drains
[22] see Chung Man Yau & anor v Sihon Co Ltd [1997] 1 HKLRD 1221
[23] eg whether the Concession (ie abandonment of the Conceded Loss) also meant P could not claim for (a) damage to property/chattels within the Yard / Light Well Structures at the Cabinet/Bathroom Areas, such as cost of the New Cabinet in the Yard Structure referred to in paragraph 229 below, and/or (b) water damage to parts of Flat GE near to but not exactly within the Yard / Light Well Structures due to water leakages entering Flat GE via defects in the Yard / Light Well Rooftops that were not impervious to water
[24] eg how to apportion and exclude the Conceded Loss
[25] at the trial, D2 relied on paragraphs 3-6 and 20 of TP1’s Amended Defence and paragraphs 1-5 of the further and better particulars of TP1’s Amended Defence in the Third Party Proceedings, and paragraphs 5 and 9-11 of D2’s Amended Defence in the Main Proceedings as his pleaded claim against D1 in the Contribution Proceedings
[26] and also relied on paragraphs 3-6, 8-10 and 12-13 of the D1’s Statement of Claim in the Third Party Proceedings and paragraphs 9(g)(i), 9(h) and 17 of D1’s Re-Amended Defence in the Main Proceedings
[27] TPs noted P alleged there were already some water leakages, say, in November 2006 before the alleged Improvement Works in January/February 2007
[28] ie (a) replacement of carpet with wooden flooring and skirting boards in the main living area, (b) replacement of wallpaper in the main living area and other decorative works, (c) replacement of the A/C units and related works in the 2 bedrooms at the rear of Flat 1E, (d) replacement of tiles “in the bathroom”, (e) replacement of main entrance door lock, and (f) replacement of water heater and tap in the 1E Kitchen
[29] D1 further relied on the facts/matters alleged in P’s Re-Amended Statement of Claim and D1’s Re-Amended Defence in the Main Proceedings to support her third party claim that nuisance as P alleged was wholly or partly caused or contributed to by TPs
[30] see Star Glory Investment Ltd v Kai Tuo (HK) Technology Ltd & ors HCA3523/2002, Chung J (unreported, 13 August 2005) para 12 (see also Four Seas Fishballs Co Ltd v Yeung Hung Sin & anor HCA4159/2003, Chung J (unreported, 25 August 2006) para 20, Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, 494, Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 524 and Hui Cheung Fai & anor v Daiwa Development Limited & ors HCA1734/2009, DHCJ Eugene Fung S.C. (unreported, 8 April 2014) paras 76 - 83)
[31] see Chinachem Charitable Foundation Limited v Chan Chun Chuen & anor HCAP8/2007, Lam J (as he then was) (unreported, 2 February 2010) paras 483-493
[32] see Harvest Treasure Ltd v Cheung Fat Enterprises Ltd [2016] 4 HKLRD 157, 164-165
[33] see Clark & Lindsell on Torts 22nd ed para 21-01 at pp 1378-1379
[34] see Clerk & Lindsell on Torts 22nd ed para 20-06 at pp 1381-1382
[35] see Clerk & Lindsell on Torts 22nd ed para 20-31 at pp 1398-1399
[36] see Clerk & Lindsell on Torts 22nd ed para 20-35 at p 1400
[37] see Clerk & Lindsell on Torts 22nd ed para 20-10 at pp 1384-1385 and Capital Prosperous Ltd & anor v Sheen Cho Kwong [1999] 1 HKLRD 633, 639 (see also Stone v Bolton & ors [1949] All ER 237, 238-239 (approved as to nuisance [1950] 2 KB 201 and on other grounds [1951] AC 850))
[38] see Clerk & Lindsell on Torts 22nd ed para 20-11 at pp 1385-1386, Capital Prosperous Ltd & anor at p 639, and Munro v Southern Diaries Ltd [1955] VLR 332, 335 citing with approval Andreae v Selfridge & Company, Ltd [1937] All ER 255, 261
[39] see Glofcheski, Tort Law in Hong Kong 3rd ed para 19.2.1 at p 724
[40] see Glofcheski, Tort Law in Hong Kong 3rd ed para 19.2.1 at p 724
[41] see Lam Po Chun v Leung Wai Chun DCCJ1085/2003, HHJ L Chan (as he then was) (unreported, 16 February 2004) and Born Chief Co (trading as Beijing Restaurant) v George Tsai & anor [1996] 2 HKLR 188
[42] see Hui Ling Chun v Shiu Mak Ying & anor DCCJ10294/2001 (unreported, 3 March 2004) para 2 citing 張秀玲及吳炳漢及鄭禮莊CACV268/98 (unreported, 9 April 1999) and Leung Yung Chun & anor v Chan Wing Sang & ors [2000] 1 HKLRD 456, and Hui Ling Ling v Sky Field Development Limited HCA35/2007, Recorder Yuen SC (unreported, 8 May 2012) para 23 (upheld on appeal in CACV122/2012 (unreported, 22 March 2013))
[43] see Hui Ling Ling at paras 24-25
[44] see Wong Pui Ping v Au Wai Ki Jacky & anor DCCJ1225/2007, DDJ J H Hui (as he then was) (unreported, 17 April 2012) paras 112-113
[45] see Hui Ling Ling at para 72
[46] see Clerk & Lindsell on Torts 22nd ed para 20-39 – 20-40 at pp 1402-1403
[47] see Clerk & Lindsell on Torts 22nd ed para 20-42 at pp 1403-1404
[48] see Sachdeva & anor v Sandhu & anor [1989] 1 EGLR 273, 277
[49] [1940] AC 880
[50] [1980] 1 QB 485, 517-518
[51] [2000] QB 836, 858
[52] CACV268/1998 (unreported, 9 April 1999)
[53] [1967] 1 AC 617
[54] in that case the damage was reasonably foreseeable so the claimants were entitled to damages (see Clerk & Lindsell on Torts 22nd ed para 20-37 at p 1401)
[55] [1994] 2 AC 264
[56] see Clerk & Lindsell on Torts 22nd ed para 20-38 at pp 1401-1402
[57] [1967] 1 AC 645
[58] see also Bybrook Barn Garden Centre Ltd & ors v Kent County Council [2001] LGR 239, 253
[59] see Vernon Knight Associates v Cornwall Council [2013] 3 EGLR 69, 71-72 (see also Holbeck Hall Hotel Ltd & anor at pp 836-837 which held that the owner or occupier of land owed a “measured duty of care” to prevent danger to a neighbour’s land from lack of support due to natural causes where the owner or occupier knew, or was presumed to know, of the defect or condition on his land giving rise to the danger, even though he had not created it, and where it was reasonably foreseeable that the defect or condition would, if not remedied, cause damage to the neighbour’s land)
[60] see Clerk & Lindsell on Torts 22nd ed para 2-09 at p 59
[61] see Clerk & Lindsell on Torts 22nd ed para 2-103 at p 129
[62] see McGregor on Damages 20th ed para 8-008 at p 102, Clerk & Lindsell on Torts 22nd ed para 2-106 at pp 130-131 and Stapley v Gypsum Mines Ltd [1953] AC 663, 687
[63] [2010] PIQR P8
[64] [1953] AC 663, 687-688
[65] [2011] 4 HKLRD 395, 422-423
[66] [1952] AC 292
[67] Clerk & Lindsell on Torts 22nd ed para 2-106 at pp 130-131
[68] see Clerk & Lindsell on Torts 22nd ed para 2-103 at p 129 and McGregor on Damages 20th ed paras 8-079 – 8-081 at pp 148-149
[69] see McGregor on Damages 20th ed para 29-017 at pp 1229-1230
[70] see Clerk & Lindsell on Torts 22nd ed para 20-29 at pp 1396-1397
[71] see Leung Yung Chun & anor at p 462
[72] see K & B Household Company Limited v The Incorporated Owners of Nos 151-153 Sai Yee Street & anor DCCJ348/2008, DDJ R Pang (unreported, 1 June 2010) para 66
[73] see McGregor on Damages 20th ed para 4-051 at pp 54-55
[74] see Clerk & Lindsell on Torts 22nd ed para 20-29 at pp 1396-1397
[75] see Wallace v Manchester City Council [1998] 3 EGLR 38 or (1998) 30 HLR 1111, 1121 cited in Moorjani v Durban Estates Ltd [2016] 1 WLR 2265, 2271-2272
[76] [2009] 3 All ER 319, 333-334
[77] [1977] AC 655, 696 and 706
[78] DCCJ934/2006, HHJ Mimmie Chan (as she then was) (unreported, 12 July 2007) paras 87-88
[79] [2016] 1 WLR 2265, 2279
[80] [2011] EWHC 3253 TCC (see also see McGregor on Damages 20th ed para 39-021 at p 1234, Calabar Properties Ltd v Stitcher [1984] 1 WLR 287 and Formalex v Abdoolally Ebrahim & Co (HK) Ltd DCCJ14886/2000, HHJ Carlson (unreported, 6 March 2002) cited in Larbons Limited paras 89-90)
[81] [2006] EWCA Civ 1090 (28 July 2006) paras 31-32 cited with approval in Moorjani at pp 2276-2277
[82] [2012] EWHC 2610 (QB) para 474
[83] CACV16/2006 (unreported, 12 March 2007)
[84] see Moorjani at p 2267 and pp 2274-2275 citing Calabar Properties Ltd at p 299 and Wallace (1998) 30 HLR 1111, 1120-1121, and see Lam Kit Yee v Lam Shuk Lam & anor DCCJ 3115/2011, DDJ Lawrence Ng (unreported, 10 March 2017) paras 92 and 95 where the claim for distress, discomfort and inconvenience was sought/ awarded for the period from commencement of the water leakage until the plaintiff and her family moved out of the afflicted premises
[85] see Chan Fei Lung v Mansion Products Ltd & ors [1990] HKC 504, John So & anor v Lau Hon Man & ors [1993] 2 HKC 356, Leung Yung Chun & anor, Lam Po Chun at paras 7 and 35-40 and Lam Kit Yee at paras 92-95 and cases cited therein
[86] see Moorjani at p 2274, Lam Po Chun at paras 7, 34 and 39, Shum Chi Yung & anor v Lam Chung Kwong & anor DCCJ 697/2005, HHJ H C Wong (unreported, 4 August 2006) para 36-37, and Lam Kit Yee at paras 96-111 whereby DDJ Lawrence Ng awarded reasonable costs of alternative accommodation and not the alternative claim of loss of enjoyment of or loss of rental profit from the afflicted premises from the time the plaintiff and her family moved out until reinstatement of her property, and the learned judge noted “there was no evidence that the plaintiff had ever attempted to rent Flat 6A out and that according to her evidence, she purchased Flat 6A for self-residence” (para 111)
[87] see Lam Po Chun at paras 39-40 and Earle at paras 5, 26 and 41
[88] see Brew Brothers Ltd v Snax (Ross) Ltd & anor [1970] 1 QB 612, 638-639 and 644, Leung Tsang Hung at pp 501-502 citing Brew Brothers Ltd at pp 638-639, and Mistry v Thakor & ors [2005] EWCA Civ 953
[89] see Clerk & Lindsell on Torts 22nd ed para 20-79 at p 1425
[90] [2015] AC 106, 113 and 125-126
[91] see also Smith v Scott & ors [1973] 1 Ch 314, 321
[92] see Brew Brothers Ltd at p 638 citing Mint v Good [1951] 1 KB 517, 528-529, and Leung Tsang Hung at p 501 also citing Mint at pp 528-529
[93] see Clerk & Lindsell on Torts 22nd ed para 20-80 at p 1426
[94] see Cockburn v Smith [1924] 2 KB 119, 128, Lee v Leeds City Council [2002] 1 WLR 1488, 1510 citing Southwark London Borough Council v Mills [2001] 1 AC 1, 12, and Li Ching Wing v Xuan Yi Xiang [2004] 1 HKLRD 754, 562-563
[95] see Clerk & Lindsell on Torts 22nd ed para 20-82 at p 1427
[96] see Clerk & Lindsell on Torts 22nd ed para 20-79 at p 1425
[97] see Edwards v Kumarasamy [2017] 2 All ER 624, 634
[98] see Clerk & Lindsell on Torts 22nd ed para 20-80 at pp 1425-1426
[99] see Clerk & Lindsell on Torts 22nd ed para 20-83 at p 1428 and Brew Brothers Ltd at p 639
[100] see Leung Tsang Hung at p 498
[101] [2003] 1 WLR 427, 431 cited in Leung Tsang Hung at p 499
[102] see L E Jones (Insurance Brokers) Ltd at p 431
[103] (2007) 10 HKCFAR 480
[104] CACV47/2017 (unreported, 1 March 2019)
[105] (1977) 52 ALJR 20
[106] (2001) 4 HKCFAR 381
[107] [2016] AC 742 at [21]
[108] [2017] UKPC 2 at [7]
[109] [2003] 2 HKC 306, 309-310
[110] eg alleged spillage from his washing machine in mid-2007 and the 06/11 Incident
[111] D2/TP1 claimed P failed to show he was negligent in not noticing the flush water pipe or washing machine drainpipe might burst, or his use of the cistern at the 1E Guest Bathroom or the washing machine at the 1E Kitchen was unreasonable
[112] most documents were lost except for a table of receipts, some carpet authenticity certificates, and some photographs showing Flat GE’s pre-existing condition
[113] see paragraph 4 of the Re-Amended Statement of Claim in the Main Proceedings
[114] so Location X was sometimes described to be at the GE Living Area or GE Dining Area or both (see footnote 8 above)
[115] see paragraph 1.6 of the Ho Report
[116] marked in pink in the “Floor Plan 1” attached to the 2nd FBP
[117] (a) water marks and dampness seen inside wardrobe of the Old Cabinet, and water/ damp/grey marks seen inside drawer area and on some drawers of the Old Cabinet (C1/30-32, 34 and 43-44), (b) damp/grey marks seen at the foot of the Old Cabinet (C1/35, 41-42 and 44), and (c) watermarks seen at the false ceiling above (C1/33 and 41-42) and at the floor below (C1/35, 41-42 and 44) the Old Cabinet
[118] watermarks seen on the walls underneath the false ceiling (C1/38-39)
[119] peeling of flaky paintwork from the plaster at the ceiling above the Helper Bed (C1/37 and 45)
[120] which was also the same area at or near to the area shown in Exhibit P5 and the Bottom Photo (see footnote 13 above and footnote 154 and paragraph 199 below)
[121] see photograph taken in November 2007 after removal of the Old Cabinet (B3/549) that showed (a) dampened/mouldy condition of wall/floor at Location X suggesting water seepage from the false ceiling down the back of the Old Cabinet to the floor, but (b) absence of water attack to the rest of Cabinet Wall which remained white and pristine
[122] which Ho agreed was an appropriate test to assess the waterproofing effectiveness of the GE Structures
[123] D1’s averment in paragraph 4(b) of D1’s Re-Amended Defence in the Main Proceedings that the freshwater supply pipe was “installed at the external wall outside the [1E Helper Room]” was clearly wrong because no adjoining external wall or no rooftop at floor level could be seen outside the windows of such room
[124] which Ho said was made of permeable ½-inch or ¾-inch decorative gypsum board with some plaster or paintwork
[125] eg P did not complain of water leakage in relation to the Courtyard Structure before early 2012, but the water spray test carried out by Wu in 2014 showed leakage there
[126] by sealing up water outlets such as drain holes, and using colour-dye water to form a small pond on the floor to see whether the colour-dye water would seep through the waterproofing membrane in contra-distinction to, say, the floor drain
[127] especially given the proximity of the GE Helper Toilet to the GE Laundry Room, the common absence of false ceilings and A/C outlets in both rooms, and the similarity of the effect on both ceilings (eg peeling paintwork and loose plaster)
[128] see eg letters by Selex Properties to D1 dated 12 and 26 April 2007 which were copied to P (D/8-9 and see paragraphs 184 and 186 below)
[129] ie removing wallpaper, re-painting walls/ceilings and replacing carpet with wooden flooring, but without mention of replacing bathtub in the 1E Master Bathroom with shower cubicle
[130] D1 said she did not obtain any quotation for such renovation/plumbing works, and it was D2 who told her the estimated total costs would be about $300,000
[131] Richard’s work schedule (C2/167-168) showed his workers worked at Flat 1E from 5 February until 2 March 2007
[132] for purchase of materials, air-conditioning works (C2/174), purchase of paint and related equipment (C2/175), water heater works (C2/178), labour cost (C2/180), and supply of miscellaneous materials (C2/181)
[133] ie to alter/rebuild the plumbing, pipework and drainage system of Flat 1E and to install a new shower tray in the 1E Master Bathroom
[134] ie D2/TP1 was liable to make good, repair and rectify defects in the Improvement Works
[135] ie D2/TP1 carried out such works negligently or allowing such works to fall into disrepair
[136] marked in pink in the “Floor Plan 2” attached to the 2nd FBP
[137] P claimed she learned from that person that someone would soon move into Flat 1E
[138] C1/48 and 56-57 showed black/grey stains on the false ceiling and watermarks on the walls, but no black/grey stains were seen on the false ceiling above the shower cubicle
[139] C1/49 showed water stains on the false ceiling near the top of the Old Cabinet
[140] C1/50 showed peeling of paintwork
[141] C1/51 showed peeling of paintwork
[142] the photographs showed water stains at the back and side panels inside of the Utility Cabinet, and serious concrete spalling exposing reinforcing bars and peeling of paintwork at Location D
[143] eg water supply pipes and water discharge drains to and from the washbasin and shower cubicle, drainpipe for the floor drain, flush water supply pipe and sewage drain for the toilet bowl, and possibly water supply pipe for the 1E Master Bathroom
[144] P said it was certainly after the FEHD carried out the Colour Test at Flat 1E in/about March 2007, but she was not sure whether it was before or after her washing machine broke down due to water damage
[145] marked in pink in the “Floor Plan 3” attached to the 2nd FBP
[146] the photographs showed black/grey stains at the false ceiling at Locations B with towels/buckets placed on the floor underneath, brown stains on the marble wall panels at Location TB, and water stains on the false ceiling and floor above/below the Old Cabinet at Location X
[147] C1/63-64 showed (a) black/grey stains on the false ceiling above Locations B, (b) lighting was switched on at the GE Master Bathroom, (c) paint was peeling off the ceiling stained with grey/green spots and water drops
[148] C1/65-66 showed brown stains on the marble panels at the corner where the Urinal was installed and also next to the Toilet Bowl
[149] C1/67-68 showed the inside of the Utility Cabinet was dampened
[150] marked in pink in the “Floor Plan 3” attached to the 2nd FBP
[151] Ho said “[roughly] I know that it ran along the wall to the corner and then connected to ……, the drainage outlet at the sink”
[152] MC recordings carried out on 28 August 2013, 24 June 2014 and 16-18 and 21 July 2014
[153] eg 3 A/C refrigerant conduits wrapped in PVC with ½-inch electric cable conduits underneath were seen in Exhibit P5
[154] the P5 Area was at the Kitchen/Yard Corner which was the same area as show in the Bottom Photo (see footnotes 13 and 120 above and paragraph 199 below)
[155] Ho agreed there were “electrical cords” and “…… [something] like four or five or six pipes go through the top ……” running horizontally along the false ceiling
[156] C1/69 showed the gypsum board false ceiling between Locations U and TB had collapsed
[157] C1/70 showed black/gray stains at the false ceiling above Location U, and water stains on the marble panels at Location U
[158] C1/71 showed water stains on the panels inside the Utility Cabinet at Location C, and along the wall and floor near the Utility Cabinet with black/grey stains
[159] C1/73 showed the marble paneled walls at the Washbasin Area were dampened with water stains
[160] C1/74 showed the marble floor around Location TB was dampened
[161] C1/75-76 showed paint peeling off the ceiling at Location Z, and brown watermarks on the beam/wall of the Glazed Wall
[162] C1/77 showed the Old Cabinet was removed, and the false ceiling and top part of the wall behind the Old Cabinet at Location X had black/grey stains
[163] marked in pink in “Floor Plan 4” attached to the 2nd FBP
[164] the acoustic cloth was removed with buckets/towels placed inside and near the foot of the New Cabinet Extension when the photographs in C1/81-83 were taken
[165] P’s letter dated 1 March 2008 (see paragraph 237 below) referred to a new water leakage in the Cabinet Area in late January 2008
[166] marked in pink in the “Floor Plan 5” attached to the 2nd FBP
[167] P claimed such letter was given to the BMO to pass to D1/Li
[168] P agreed in re-examination this was the first time she informed D1/Li in writing about the damage and cost of repair
[169] P explained the repairs referred to in the letter dated 1 March 2008 were those carried out by P / Loke Sr in November/December 2007
[170] D1 said there were many occasions in 2008 when she instructed her contractor to check for defects or leakages, and many times her contractor said there was no leakage from the pipes/drains
[171] eg going without electricity, having the New Cabinet Extension and new loudspeakers ruined, having irremovable stains on the marble in the GE Master Bathroom, and suffering ailments that required medical attention
[172] which was in situ for at least 2-3 years after P moved into Flat GE until it was removed
[173] marked in pink in the “Floor Plan 6” attached to the 2nd FBP
[174] P turned on the dryer to keep the GE Master Bathroom dry and to minimise damage
[175] C1/89-90 showed the ceiling, C1/91-92 showed the false ceiling at Location TB was removed, C1/93 showed workers removing the false ceiling at Location TB, and C1/89-93 showed the false ceiling of the GE Master Bathroom
[176] since Bathroom B was the 1E Master Bathroom (see footnote 177 below), Bathroom A must be the 1E Helper Bathroom being the only other bathroom tested by the FEHD’s staff
[177] since the 1E Helper Bathroom never had any bathtub, but the FEHD’s staff did Colour Test for the bathtub at Bathroom B, so Bathroom B must be the 1E Master Bathroom
[178] see C1/94 which showed colour-dye water collected in a basin placed between Locations U and TB outside the shower cubicle in the Original BRm Area of the GE Master Bathroom
[179] the floor drain of the 1E Helper Bathroom was just outside the shower cubicle close to external wall that faced the open space above the Light Well Structure (ie above the area at/near the false ceiling between Locations U and TB) (see such floor drain marked in the Flat 1E layout plan in Exhibit D1-3 and photograph 865-5a of Exhibit D1-1)
[180] Wu said photograph 0484 10l at B5/881, photograph 0434 10(o) at B5/882 and the YH Photo showed the same area as evident from the white drum-like structures on the Light Well Rooftop common to all 3 photographs, and Ho agreed the 2 drum-like structures on the rooftop shown in the YH Photo were the same features found in photograph 0436 10k at B5/881, photograph 0436 10e at B5/880 and photograph 0484 10l at B5/881, so these photographs all showed the Light Well Rooftop
[181] which Ho said was the external section of the 2-inch or 2½-inch Helper FD Drainpipe, but he later said he could not be sure whether it was connected to the floor drain or shower cubicle drain of the 1E Helper Bathroom
[182] see photographs at C1/96-1 - 105
[183] photographs at C/95-96 and C1/96-1 – 96-3 showed the dismantled false ceiling that exposed the ceiling soffit above Location TB
[184] see hatched green areas in Exhibit P3 – but some areas escaped water attack, eg GE Laundry Room, GE Helper Toilet, Loke Jr Bathroom, large part of Loke Jr Bedroom, Courtyard Structure (including the GE Guest Toilet), and GE Living Area near the front door
[185] Ho said the ½-inch copper pipe wrapped in white PVC material connected by screw and nut to the existing pipe system in the 1E Guest Bathroom shown in photograph 0460 4f (B5/864) was usual pipework for flush water inlet pipe for the cistern, and was usually robust enough for the job as it was made of copper wrapped in PVC material
[186] see Colour Quest Ltd & ors v Total Downstream UK Plc & ors [2009] 2 Lloyd’s Rep 1, 38
[187] 21st ed para 20-136 at p 1454
[188] see photographs taken by Loke Jr on 23 and 29 June 2011 (C1/106-131)
[189] the tenancy of the new tenant lasted until November 2015 under 2 written tenancy agreements dated 3 November 2011 and 3 November 2013 for tenancy terms from 15 November 2011 to 14 November 2013 and from 15 November 2013 to 14 November 2015 respectively
[190] see photographs in C1/132-135 and video recording made by Loke Jr in C1/136
[191] ie sewage from toilet bowl and urinal in contra-distinction to waste water from shower cubicle, bathtub, washbasin, kitchen sink and washing machine, but both kinds of water would discharge to a manhole
[192] but when 60% of the false ceiling at Flat GE was removed on Wu’s last inspection, mould growth did not appear as serious as when the false ceiling was still up
[193] see letter dated 24 June 2014 by Wu to D1’s solicitors reporting on what happened that day – B7/1202-1203
[194] Ho said “…… the ceiling itself was not 100 per cent airtight so in normal times there would be air ventilation or airflow, a little bit of airflow there, not entirely unexposed”
[195] Wu said the phenomena of water coming in diminished when rain stopped
[196] except the freshwater supply pipe that had been replaced
[197] see regulation 34 of the Building (Construction) Regulations Cap 123B
[198] see Chun Yat-nam v Attorney General for and on behalf of the Commissioner of Police [1995] 1 HKLR 390, 407-409
[199] [1951] 1 KB 517, 521-522
[200] see Leung Tsang Hung at p 501
[201] Ho considered condensation of water vapour in the atmosphere inside Flat GE was one of the causes of the alleged formation of stain marks and mould growth in the ceilings and wall surfaces of Flat GE, but mould growth was caused by a combination of (a) waste liquid from Flat 1E that contained bacteria, (b) water leakage from the external wall or the Rooftops that would provide environment for mould growth, and (c) water/moisture and rising damp that would condense on the ceilings/walls of Flat GE at “dew point” temperature, and as Flat GE was vacant and ventilation thereat was minimal, Flat GE would remain in such condition until the water leakage stopped, the walls/ceilings dried, and proper ventilation was maintained (see paragraphs 3.3-3.4 of the Ho Report)
[202] see Born Chief Co (trading as Beijing Restaurant) at p 195
[203] which stated “W3240 WASH. MACHINE LOTUS WHITE” would be delivered on 25 August 2007, and “PLEASE COLLECT CHEQUE $12,980 PAYABLE TO “MIELE (HK) LIMITED”” (C2/184)
[204] see Service/Invoice No 2007-KD 213595 dated 18 August 2007 issued by Miele (C2/182) which noted “can’t open the door”, but recorded electrical parts were changed plus “ADH equal 200”, and concluded “* water damage (we test) total 5,270”, and see also Service/Invoice No 2007-KD 214737 dated 23 August 2007 issued by Miele (C2/183) which noted “change spare parts …… (not repair)”
[205] ie it was watery inside when the technician pulled open the panel, so the buttons were non-operable, the door would not open, and the washing machine could not be used
[206] eg replacement costs for expensive branded kitchen appliances when there was no evidence they had been damaged, cost of renovation works for the GE Helper Toilet when P had no complaint for that area, cost of burglar alarm system which had nothing to do with water leakages, cost of renovation of the Loke Jr Bathroom when P had no water leakage complaints for that area, and it was unaffected by the 06/11 Incident and the incidents in 2013
[207] the rateable value of Flat GE was $358,680 (see rate demand note for October to December 2010) and $424,680 (see replacement rate demand note for January to March 2012), which meant the monthly rateable value was $29,890 for the period from November 2006 to March 2011 (which was less than the monthly rent for Flat 1E in the same period without any diminution due to water damage) and $35,390 for the period from April 2011 to March 2012 (which was less than the monthly rent of $50,000 for Flat 1E on/after November 2011)
[208] HCMP1020/2013, Recorder A Houghton SC (unreported, 5 May 2017)
[209] DCCJ4448/2011, DDJ R Lai (as he then was) (unreported, 20 April 2015) paras 192-208
[210] DCCJ 3115/2011, DDJ Lawrence Ng (unreported, 10 March 2017)
|