WONG MAN TAT v. CHAN YUEN MAN AND OTHERS

DCCJ 2853/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2853 OF 2005

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JUDGMENT

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Background:

1. The Plaintiff is the owner and occupier of Flat 1802 (“1802”) of Block C, Westlands Gardens, No. 4 Westlands Road, Quarry Bay, Hong Kong (“the Building”) and the Defendants, the owners of Flat 1801 (“1801”) of the Building.

2.  On or about 13/4/2004, the Plaintiff received notice from the manager of the Building that the occupiers of Flat 1702, the unit below 1802, complained about water seepage at the ceiling area near the master bedroom storage area next to the master bedroom en-suit bathroom (the “Master Bathroom”).

3.  The Plaintiff hired a licensed plumber to investigate the source of the water seepage. The plumber could not find any water seepage at any water supply pipes or drains in 1802’s Mater Bathroom. To locate the source of the water seepage, the plumber removed the floor tiles inside 1802’s Master Bathroom and discovered there was water seeping from the partition wall dividing the Master Bathrooms of 1801 and 1802.

4.  The plumber inspected 1801’s Master Bathroom and found the original bathtub was removed and a shower stall in its place. In order to discover the source of the water seepage, the plumber suggested the Defendants should also remove the floor tiles to 1801’s Master Bathroom.

5.  The Defendants refused; however, after the floor tiles of 1802’s Master Bathroom were removed, water no longer seeped down to 1702.

6.  The Plaintiff contacted various governmental departments and tests were conducted, but the source of the water seepage was still uncertain. The Plaintiff hired surveyors and varies tests, including an infrared thermographic test, were conducted. The Plaintiff alleged the tests conclusively proved the shower stall and floor drain in 1801’s Master Bathroom were the sources of the water seeping into 1802’s Master Bathroom.

7.  Although on or about 2005’s Lunar New Year, the Defendants changed the floor titles in the shower stall of 1801’s Master Bathroom, the seepage continued.

The Claim:

8.  The Plaintiff therefore applied to this Court for an injunction restraining the Defendants from repeating or continuing the nuisance of water seepage from the shower stall and floor drain of the Master Bathroom in 1801 to 1802; an order that the Defendants to rectify the same; and damages for: (1) diminution in value of the premises to be assessed; (2) discomfort and inconvenience and disturbance; (3) surveyor fee of HK$20,000.00 and; (4) plumber charges of HK$15,000.00.

The Defence and Counterclaim:

9.  The Defendants deny there was any water seepage from the Master Bathroom of 1801 into 1802. In their Statement of Defence, the Defendants pointed to a broken and concealed water supply pipe on the 1802 side of the partition wall as the source of the water seepage in 1802.

10.  In September 2004, the Food & Environmental Hygiene Department conducted a colour pigment test in 1801’s Master Bathroom and failed to find any sign of water seepage.

11.  In or about January 2005, to locate the source of water seepage, the Defendants engaged a plumber to remove all floor tiles in the shower stall of the Master Bathroom of 1801. No water seepage was revealed after the tiles were removed.

12.  The Defendants counterclaimed against the Plaintiff for: (1) discomfort and inconvenience and disturbance to be assessed; (2) surveyor fee of HK$10,000.00; and (3) plumber charges of HK$8,500.00.

Preliminary Applications:

13.  Prior to commencement of the trial, the Defendants applied for: (1) Leave to adduce Expert Evidence; and (2) Amend the Defence and Counterclaim.

14.  First, Mr. Wong, Counsel for the Defendants, applied to adduce two expert reports into evidence: A survey report by Prudential Surveyors International Limited (the “Prudential Report”); and a thermographic survey report by Infrascan (HK) Limited (the “Infrascan Report”).

15.  Mr. Cheung, Counsel for the Plaintiff, agreed to the introduction of the Prudential Report, but objected to the introduction of the Infrascan Report. Mr. Cheung’s objections centred on probative value and delay.

16.  After careful consideration, I found the Infrascan Report clearly relevant to both the source of water seepage and the reliability of the Plaintiff’s expert report drawn from infrared thermographic tests. Leave was granted for the Defendants to adduce both expert reports and on consent, costs was to the Plaintiff in any event agreed at 1½ hours.

17.  Second, Mr. Wong applied to amend the Statement of Defence and Counterclaim under Order 20 rule 5 of the Rules of the District Court. The amendments involved only house keeping matters and there was no objection from Mr. Cheung to the application; however, Mr. Wong also applied to adduce additional documentary evidence.

18.  After a short break for learned Counsel to discuss this application, agreement was reached and the parties consented that the Plaintiff should have costs in any event for this application, agreed at 20 minutes.

The Issue:

19.  Although the claim was clothed in nuisance, breach of the Deed of Mutual Covenant of the Building and section 34H of the Building Management Ordinance, Cap. 344 (to keep the interior in good repair and condition and to maintain the same in good order), the Defendants never disputed their responsibility under the Deed of Mutual Covenant and Building Management Ordinance, but contested liability solely on the ground that the water seepage did not originate from 1801.

20.  Accordingly, there is only one issue in this matter: Is water continually seeping from the Master Bathroom of 1801 into 1802’s Master Bathroom?

The Plaintiff’s Evidence:

21.  The Plaintiff’s case was based on two grounds. First, two Survey Reports dated 11/12/2004 and 30/5/2005, both prepared by Dudley Surveyors Ltd (individually referred to as the “2004 Dudley Report” and “2005 Dudley Report” and cumulatively as the Dudley Reports”).

22.  The Dudley Reports were in turn based on two Rapid Infrared Thermographic Survey Reports, dated November 2004 and June 2005, prepared by Building Diagnostic Consultants Ltd. (individually referred to as the “2004 BDC Report” and “2005 BDC Report” and cumulatively as the “BDC Reports”).

23.  The 2004 Dudley Report stated the first visual inspection of both 1801 and 1802 occurred on 25/10/2004. On that occasion, it was noticed that the bath tub of 1802 had been removed and under the wash basin of 1802, there was a patch of wet area of approximately 300mm x 150 mm, on the 1802 side of the partition wall between the Master Bathrooms of 1802 and 1801.

24.  In the 1801 Master Bathroom, it was observed that the original bathtub had been removed and replaced by a shower stall, with tiles on both the wall and floor inside.

25.  Instruction was left for the Plaintiff not to use the 1802 Master Bathroom washbasin until the next inspection date.

26.  On 5/11/2004, Dudley’s second inspection, the wet area under the washbasin in 1802 was unchanged. Dudley decided a Rapid Infrared Thermographic Survey (“RITS”) would be required. On 19/11/04, Building Diagnostic Consultants Ltd. conducted the first of two RITS.

27.  The principle of RITS is the detection of energy by an infrared scanner and mapping the temperature contours over the surface of a target object to provide an appropriate measure of the temperature variation over the surface of the object. Thermal data is then transformed into a colourised picture, showing different colours for different temperatures on the object. 

28.  To detect the presence of water seepage, it is necessary to first take a base set of thermographic pictures of the object, then water would be introduced in the suspected source of  seepage and a second set of thermgraphic pictures would be taken for comparison.

29.  If the suspected source was indeed the origin of the water seepage, the second thermographic picture would show a temperature decrease by way of a colour change from the first thermgraphic picture. The colour change is the result of lower temperature associated with the presence of colder water seeped from the suspected source. 

30.  The 2004 BDC report was based on thermographic pictures and water tests conducted on 19/11/04. On or about 3:00 PM 19/11/04, a set of base thermographic pictures was taken at the partition walls between the two Master Bathrooms. Even on these base pictures, there was clearly an area where the temperature was lower than the surrounding areas. The 2004 Dudley Report concluded that this indicated the presence of water in the partition wall even before water was applied in 1801.

31.  Water was then sprayed on to the wall and floor of the 1801 shower stall. In or around 3:15PM, staffs of Dudley Surveyors Ltd. noticed water starting to appear around the concrete floor slab surrounding the floor drain in 1801’s Master Bathroom. The Defendants’ plumber exposed this area of the concrete floor slab when he removed a single floor tile surrounding the floor drain, during his investigation of the source of the water seepage. I will have more to say on this later.

32.  At or around 3:45PM, a second set of thermographic pictures was taken. At this time it was noticed that the water seepage observed near the floor drain had enlarged.

33.  At or around 4:00PM, the water test to the shower stall was concluded and water was sprayed into the floor drain of 1801’s Master Bathroom. In or around 4:25PM, a third set of thermographic picture was taken and the test was concluded at around 4:40PM.

34.  The Plaintiff’s case is that thermographic pictures taken on 19/11/04, attached as pages B-3 (page 88 of the bundle of documents) and B-5 (page 90 of the bundle) Appendix B of the 2004 Dudley Report, clearly indicated that after water was sprayed into the shower stall and floor drain of 1801’s Master bathroom, the water seepage area observed in the base thermographic picture had noticeably enlarged, indicating water seepage from the shower stall and the floor drain.

35.  The 2005 Dudley Report stated on 12/5/2005, after the floor tiles of the 1801 Master Bathroom were replaced, a second RITS test was performed to confirm if the water seepage problem had been fixed. This time it was noticed that the floor tile surrounding the 1801 Master Bathroom floor drain has been replaced. The concrete floor slab was no longer visible.

36.  The 2005 BDC Report concluded that there were still signs of water seepage at the partition wall at the 1802 Master Bathroom after water test at the wall, floor and drain of the shower stall of the 1801 Master Bathroom shower.

The Defendant’s Evidence:

37.  The Defendants’ case depended on two reports. The first is an Investigation Report by Prudential Surveyors International Ltd., dated June 2005 (the “Prudential Report”). The second report is a Thermographic Survey Test Report by Infrascan (HK) Limited dated 13/11/2006 (the “Infrascan Report”).

38.  In the Prudential Report the author, Mr. Kevin So, stated he and another Prudential staff were present during the second RITS test. In paragraph 5.5 of the Prudential Report, Mr. So stated: “…we did not observe any water seepage inside the master bathroom of Flat 1802 either on the wall or on the slab.”

39.  This is surprising because in paragraph 6.4 of the same report, Mr. So went on to state: “On the contrary, the broken and now concealed up feed potable water supply pipe found in the floor slab of Flat 1802 (the area surrounding such water pipe which was still wet during our inspection) might well have been the source of the water seepage.”

40.  Clearly, Mr. So did see signs of water seepage in the 1802 Master Bathroom around the “up feed portable water supply pipe”. During his testimony, Mr. So confirmed that was the same area the Plaintiff said water was seeping from 1801. Accordingly, Mr. So agreed there was water seepage in 1802’s Master Bathroom floor, but pointed to the up feed water supply pipe in 1802 as the source of the seepage.

41.  In the Infarscan Report, Mr. Christopher Stanley, a recognized expert in the use of RITS to detect water seepage in Hong Kong, stated there was no moisture in the wall below the damp patch observed in the BDC Reports and the RITS pictures taken from 1702 ceiling. At the site where water seepage was originally report, clearly did not show any presence of water.

42.  Perhaps based on Mr. Stanley’s observation, Mr. So in paragraph 6.3 of the Prudential Report stated: “Also, as the damp patch observed inside Flat 1702 was quit remote from the master bathroom of Flat 1802 and no sign of water penetration was observed on neither the exposed floor surface nor the party wall at the master bathroom of Flat 1802, it seems most improbable that the source of water seepage noted inside 1702 could have originated from Flat 1801.”

43.  This however is a red herring. The Plaintiff’s claim is based on water seepage from 1802 to 1801’s Master Bathroom and not water seepage to 1702. This whole incident may have started because the owner of 1702 complained about water seepage, but that seepage has now abated. The source of the water seepage in 1702 may or may not be one of the same as the source of water seepage into 1802, but that is irrelevant because the issue concerns the source of water seeping into 1802 and not water seeping into 1702. Just because there is no water seeping down into 1702, does not mean the source of water now seeping into 1802 is not from 1801.

44.  Mr. Stanley also criticized the BDC Reports. In the Infrascan Report, he said: “Also the temperature settings on the thermograms are on different settings so this difference is due the thermogram settings not an increase in water.” (sic)

45.  During his testimony, Mr. Stanley referred to the different setting as a set of “shifting goal posts”. When I examined the various RITS pictures in the BDC Reports, it was clear that the colours used to denote different temperatures were clearly different from picture to picture.

46.  For example, in thermographic scan #3 attached to the 2004 BDC Report, in the upper left picture (taken before the water test), the upper temperature limit (represented by pink colour) was 23.6 degrees and the lower temperature limit (represented by dark blue) was 19.6 degrees. Yet, in the upper right picture (taken after the water test), the upper temperature limit (also represented by the same pink colour) was 23.9 degrees and the lower temperature limit (again represented by the same dark blue colour) was 19.9 degrees.

47.  Since a RITS picture shows temperature contours over the surface of the wall and the temperature variation is represented by different colours, Mr. Stanley’s argument was unless the same colours represent the same temperatures in both the before and after pictures, these pictures cannot provide any meaningful information.

48.  The colour vs. temperature scales from the after water test in thermographic scan #3 had clearly numerically increased from the before water test pictures, which meant if there was no temperature change the after water test picture would have shown a colour change anyway.   Accordingly, the increase in dark green and blue colours in the after water test picture did not necessarily represent a lowering of temperature but may be due solely to this change of scale.

49.  The result is repeated in other RITS pictures in the BDC Reports and rendered the BDC Reports and the Dudley Reports, which were based on the BDC Reports totally unreliable.

50.  I agree with Mr. Stanley’s argument and I find both BDC Reports unreliable and I reject the conclusions drawn from these reports.

51.  The BDC Reports were however not the only evidence the 2004 Dudley Report relied on. Although not specifically stated in the 2004 Dudley Report, in photographs 11, 12, 13 and 14 attached to this report, it was stated after the water test watermark was observed on the concrete floor slab where the Defendant’s plumber had removed a floor tile.

52.  If this observation was true, it would mean that there was water seepage from the tiles inside the 1801 shower stall into the concrete slab below the tiles. 

53.  Mr. 陳家全, the Defendants’ father, testified that during the water test on 19/11/04, he saw water leakage from the edge of the shower stall on top of the floor tiles and concluded that the watermark on the concrete slab was caused by water leaked on top of the tiles and not from water seepage from under the tiles.

54.  Mr. Chan Kwok Wai of Dudley Surveyors Limited, who was also present during the 19/11/04 water test, testified that he saw no leakage on top of the tiles and the watermark observed on the exposed concrete slab was from seepage under the tiles.

55.  Mr. Chan Kwok Wai is a professional surveyor, his testimony was certain and he never wavered during intense cross-examination by Mr. Wong.  Mr. 陳家全 on the other hand, had totally confused about the date he observed water leakage on top of the tiles. He first mentioned it was the date management office staffs performed the water test and only when remained by Mr. Wong, referred to the 19/11/04 water test.

56.  Furthermore, given the importance of this evidence, it was odd that Mr. 陳家全’s written statement never mentioned about the water leakage on top of the tiles during the 19/11/04 water test.

57.  Between Mr. Chan Kwok Wai and Mr. 陳家全’s evidence, I prefer Mr. Chan Kwok Wai’s evidence and therefore I find as a matter of fact that there was water seepage from the wall and floor tiles in the shower stall of 1801 down to concrete floor slab.

58.  I will now deal with Mr. So’s alternative source of water seepage. Water supply pipes are under high pressure, even if there was just a tiny pinhole, one would expect a jet of water coming out from the pinhole. If the hole was larger, there would be a gush of water coming out.

59.  Yet, there was no evidence that there was any jet or gush of water from the water supply pipe. In fact, from the evidence of the Plaintiff’s son’s testimony, water had been cut off from this supply pipe years ago, during a prior redecoration, and an alternative water supply pipe had been connected to supply water to the washbasin in 1802’s Master Bathroom.

60.  Accordingly, Mr. So’s alternative source of water seepage can easily be dismissed.

61.  Additionally, Mr. So testified normally there is no additional waterproofing under wall tiles in the shower stall and the original under-slab waterproofing installed during construction of the Building would only extend 3 to 4 inches above the floor level. This leaves a substantial part of the wall inside the shower stall without any waterproofing protection.

Conclusion

62.  To summarize, it was agreed that there is water seepage at the bottom of the partition wall in the 1802 Master Bathroom. Immediately next to the partition wall on the 1801 side, the original bathtub was replaced with a shower stall made up with tiled walls and floor. The wall and floor tiles in the shower stall leaks water into the concrete floor slab below the tiles.

63.  In other words, there was water seepage into 1802 side of the partition wall and there is a source of water seepage on the 1801 side of the partition wall. There being no evidence of any another source for this water seepage, the only logical conclusion is that the water seeping from the tiles in the 1801 shower stall was the source of water seeping into 1802.

The Injunctions:

64.  I have found there is water continuingly seeping from the Master Bathroom of 1801 into 1802’s Master Bathroom, therefore the Plaintiff’s application for an injunction should be allowed.

65.  The plaintiff’s application for an order against the Defendants to rectify the water seepage should also be allowed.

Damages:

66.  The Plaintiff’s claim for HK$15,000.00 as plumber fees were not disputed by the Defendants and the Plaintiff should have judgment for this part of his claim.

67.  As to the claim for surveyor fee, this is really part of the Plaintiff’s costs of this litigation and should not have been included as part of his damages claim.

68.  As to damages for diminution in value of the premises, discomfort and inconvenience and disturbance, these are to be assessed on a date to be fixed.

69.  The counterclaim is dismissed.

Costs:

70.  I see no reason costs should not follow the event and accordingly, the Plaintiff should have costs of this action, to be taxed if not agreed.

71.  Although no difficult legal concept was involved in this matter, Counsels’ assistance was invaluable to me and I have no hesitation in issuing certificate for counsel.