WONG WAI TAK BELINDA AND ANOTHER v. SMART TEAM INTERNATIONAL INVESTMENT LTD

DCCJ 1023/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1023 OF 2009

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BETWEEN

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JUDGMENT

Background

1.  The Plaintiffs claim that as a result of vibration caused by demolition and renovation works carried out at the Defendant’s premises at Flat B on the 4th Floor of Tower 18 of Parc Oasis at 49, Tat Chee Avenue in Kowloon ("Flat 4B"), cracks appeared in the Plaintiffs’ flat directly below, at Flat B on the 3rd Floor of Tower 18 of Parc Oasis ("Flat 3B"). The Plaintiffs claim that the damage to Flat 3B was caused by the negligence of the Defendant, the owner of Flat 4B, or its agents, servants, officers or employees. They seek damages in the total sum of $87,000, representing the costs of the repair works required to be carried out at Flat 3B, costs for accommodation and loss of use of their flat for a period of 21 days to carry out the necessary repair works, and $7,000 as the fees for a survey report prepared by the Plaintiffs' expert.

2.  The Defendant denies that any damage has been sustained by the Plaintiffs as a result of any negligence on its part. It denies that it had caused or allowed excessive noise or vibration to be transmitted from Flat 4B to Flat 3B.

3.  On 3 January 2009, the Plaintiffs' appointed expert Mr. Nathan Lee ("Mr. Lee") prepared a report in respect of his inspection of Flat 3B on 29 December 2008. He identified 20 cracks detected in the living room, master bedroom, two other bedrooms, the master bathroom and the kitchen of Flat 3B.

4.  On 10 June 2010, Registrar R. Lai gave leave to the parties to adduce expert evidence on the cause of the damage to the Plaintiffs’ property and the costs of repairing the damage. By Order of Registrar S. Lo made on 28 September 2010, the parties' appointed experts were to conduct a joint inspection of Flat 3B on or before 12 October 2010, such inspection not to be postponed without leave of the court, and the joint report of the experts to be lodged with the Court within 14 days from the date of the joint inspection.

5.  On 9 October 2010, a joint inspection of Flat 3B was carried out by Mr. Lee and the expert appointed by the Defendant, Mr. Kung Cheung Fai ("Mr. Kung"). A joint inspection report was prepared by Mr. Lee and Mr. Kung and filed in court on 28 October 2010 ("Joint Report"). The Joint Report sets out the respective opinion of Mr. Lee and Mr. Kung on the cause of the 20 cracks detected by Mr. Lee.

6.  Counsel for the Plaintiffs confirmed at the commencement of trial that notwithstanding references made in the Amended Statement of Claim to excessive noise and vibration transmitting from Flat 4B as a result of the demolition and renovation work carried out there, the Plaintiffs would not be making any claim for damages in respect of the noise created in the course of such works. The Plaintiffs' claim is confined to the cracks having been formed in Flat 3B as a result of the vibration transmitted from the works carried out at Flat 4B.

The issues

7.  From the evidence produced at trial, the issues which have to be determined are:

(1)   What is the cause of the cracks which appeared in Flat 3B and are the subject matter of the Plaintiffs' complaint?

(2)   Is the Defendant liable to the Plaintiffs in respect of the damage to Flat 3B?

(3)   What are the damages payable by the Defendant to the Plaintiffs?

What is the cause of the cracks which appeared in Flat 3B and are the subject matter of the Plaintiffs' complaint?

8.  It is Madam Wong's evidence that during the time when demolition and decoration works were carried out in Flat 4B in December 2008 ("Works"), she had seen plaster and small stones falling from the ceiling in the bedroom of Flat 3B onto the floor. Photographs were taken of the materials which had fallen. The vibration from the Works was so extensive that, according to Madam Wong, a glass plate which had been stuck on the wall near the kitchen of Flat 3B had dropped onto the floor. The noise and vibration had commenced on 22 December 2008, and the noise and vibration was so excessive that Madam Wong had to leave Flat 3B during the day. When she telephoned the security guards to complain, she had to cover her head with a blanket in order to be heard. Madam Wong discovered cracks at various places in Flat 3B on 24 December 2008 and made another complaint to the management company. The noise from the Works was so excessive that it was loud even on the ground floor, and when Madam Wong complained about the matter to the security guard on the ground floor on 24 December 2008, they had to talk loudly or shout over the noise. Madam Wong claimed that from the noise emitted, she believed that a mechanical breaker was being used for the Works (which is denied by the Defendant).

9.  The Plaintiffs' expert, Mr. Lee, is a registered professional surveyor with experience in building surveying and property maintenance, renewal and renovation works. According to Mr. Lee, the most likely cause of the cracks in Flat 3B is vibration caused by the force of the demolition works carried out in Flat 4B, which vibration transmitted through the structural floor slab of Flat 4B and ceiling of Flat 3B and caused cracks to appear in the ceiling and walls of Flat 3B.

10.  Mr. Kung, the Defendant's expert, is a registered structural engineer with work experience in (inter alia) foundation works, tendering for site foundation design and construction works, building construction works and advising on structural defects. According to Mr. Kung, the cracks in Flat 3B are most likely attributable to natural phenomena such as thermal movement, differential movements, shrinkage or inadequate shear reinforcement during the construction stage of the building.

11.  In gist, Mr. Kung's evidence is that the cracks on the partition brick walls are formed as a result of differential movements between the brick partition wall and the reinforced concrete slab or beam. Brick walls, being porous, undergo a continuous and repeated process of absorption and release of moisture, as affected by the humidity and temperature in the environment. Bricks therefore expand and shrink, but if there is constraint to such swelling, stress is created and reflected in the weakest points to create the appearance of cracks. The concrete slabs or beams in Flat 3B act as such restraints, since the rate of swelling in concrete is very small compared to that of bricks.

12.  For the same reason, Mr. Kung considers that the cracks detected at the junction between the ceiling slab/wall and the decorative wooden cornice/moulding in the dining room of Flat 3B, which he termed gaps as opposed to cracks, are caused by shrinkage or differential movements of the wooden moulding and the concrete slab or the wall, or otherwise due to a loss of connection or adhesion of the cornice itself.

13.  In relation to the cracks found on the ceiling slab, Mr. Kung states in the Joint Report that these are caused by thermal movement, shrinkage, inadequate shear reinforcement at the construction stage, corrosion of steel reinforcement, excessive loading on the slab or deflection of the slab. For one crack found on the ceiling at the junction of the ceiling and the partition wall (identified as C13 in the Joint Report), Mr. Kung's evidence is that movement at the joint in particular is expected to be large. It is also Mr. Kung's belief that metal lathing or bonding material was not provided at the joint to reduce the appearance of cracks.

14.  As can be expected, Mr. Lee does not dispute principles of differential movement. However, he points out that in the construction industry, there is the common practice of applying wire mesh across the junction of the concrete beam and the brick wall at the construction stage, in order to release the stress caused by differential movement. Mr. Kung's belief is that such metal lathing was not used in Flat 3B because his opinion is that if lathing had been used, the cracks which appeared would not be as long as they were.

15.  It is also Mr. Lee's evidence that cracks caused by shrinkage or differential movement would normally occur in the first few years after the construction of the building. Since the building in which Flat 3B and Flat 4B are situated was completed in 1992, the more likely cause of the cracks, in Mr. Lee's opinion, is not shrinkage or differential movement, but vibration caused by the Works carried out at Flat 4B.

16.  According to the Joint Report, Mr. Kung does not rule out vibration as the cause of the cracks identified as C10 and C12, which are cracks in the second bedroom and the third bedroom in Flat 3B. However, bearing in mind the overall pattern of all the cracks detected and the fact that only one crack appeared on the ceiling of the living and dining room of Flat 3B, Mr. Kung remains of the view that the cracks detected in Flat 3B were not caused by vibration, and that the more likely cause of such cracks is shrinkage or differential movements, thermal movement or inadequate shear reinforcement at the construction stage.

17.  Mr. Kung's evidence is that a crack caused by impact from above would not appear as a simple line. If vibration was indeed transmitted from the ceiling slab down to Flat 3B, Mr. Kung's opinion is that lines would radiate from the source of impact, connecting the crack to the ceiling. The cracking would be random, occurring in patches in all sides of the ceiling of Flat 3B. Moreover, as the ceiling slab is thin and the span between the concrete beams or supporting walls on the sides of the living and dining room of Flat 3B is long, Mr. Kung's evidence is that if the cracks were caused by vibration transmitted from Flat 4B, he would expect more extensive cracks on the ceiling of the living and dining room, whereas there was only one crack detected on this part of the ceiling of Flat 3B.

18.  First of all, I accept the Plaintiffs' evidence and Madam Wong's evidence in particular that she had not seen the cracks in Flat 3B before December 2008, and that they first appeared on 24 December 2008, after excessive noise and vibration were transmitted from Flat 4B into Flat 3B when the Works were conducted in Flat 4B. The Plaintiffs purchased Flat 3B in October 2006. Decoration work had been done by the previous owner. From the available evidence, Flat 3B had been maintained in a good condition. The cracks which are the subject matter of the Plaintiffs' complaint were described by the experts as hairline cracks or minor cracks, being approximately 1 m to 3 m long, and about 1.5 mm wide. From the photographs adduced at trial, they cannot be said to be unnoticeable, if they had existed before December 2008.

19.  At this juncture, I dismiss as incredible the assertion made by Mr. Chan of the Defendant, that he had not seen any cracks at Flat 3B when he went to the premises on 24 December 2008. As pointed out by Counsel for the Plaintiffs, Mr. Chan had been taken to Flat 3B on 24 December 2008 as a result of the complaints made by the Plaintiffs regarding the Works which had caused excessive noise, vibration and damage to Flat 3B. The complaint is verified by the records of the management office. Mr. Chan accepted in his evidence that before he went to Flat 3B, he had been told of the complaint, and that when he went to Flat 3B on 24 December 2008, Madam Wong had pointed out the cracks and damage to him, and photographs were taken by the management. His claim that he had not noticed any cracks on the walls and ceiling of Flat 3B at all on that day is a gross exaggeration, if not untrue and incredible.

20.  Mr. Lee's evidence is that at the time of his first inspection in December 2008, the cracks were clean without dust, and he believed that they had occurred recently. Mr. Lee accordingly eliminated shrinkage or differential movement as the cause of the cracks, as he considered that shrinkage normally occurs within one year after completion of decoration works.

21.  Counsel for the Defendant cast doubt on Mr. Lee's reliance on the clean or dust free appearance of the cracks and his assertion that they were recent in December 2008. Although Mr. Kung initially claimed in the Joint Report that all the cracks identified in Flat 3B were likely to have developed over a period of time, he changed his stance in Court by saying that it is very difficult to give an opinion on the history and timing of the formation of cracks, although he maintains that Mr. Lee's claim, that the cracks were dust free and hence recently formed, is "very low" in accuracy.

22.  Mr. Kung states in the Joint Report that as the condition of Flat 3B prior to the commencement of the Works in Flat 4B is not known to him, it cannot be precluded that some of the cracks had existed before the Works were carried out. However, he accepts in the Joint Report that vibration due to the demolition works at Flat 4B "may unfold the existing cracks in greater extent".

23.  In the light of all the evidence, I am satisfied, on a balance of probabilities, that the cracks in the living and dining room, the master bedroom and the two other bedrooms in Flat 3B, which had not been detected by the Plaintiffs prior to December 2008 but which appeared or became more apparent to the naked eye shortly after commencement of the Works in Flat 4B, were caused by the vibration created in the course of the Works carried out at Flat 4B in December 2008. Notwithstanding all the arguments advanced by Mr. Kung on the basis of principles of differential movement and shrinkage of brick and timber materials, such shrinkage or differential movement is more likely to occur in the early stages of the completion of construction or renovation works of a flat.

24.  Even Mr. Kung accepts, in cross-examination, that the rate of shrinkage of concrete is highest at the early stages of construction of the building, and that such rate of shrinkage would be reduced in the course of time. He also accepts that timber used in decoration works would be seasoned, for the purpose of reducing shrinkage of such timber to the minimum. The use of seasoned timber in decoration materials hence reduces the occurrence of shrinkage.

25.  Further, it is Mr. Kung's evidence that the partition walls in Flat 4B and Flat 3B are sand bricks, and he accepts that where bricks are covered by finishing such as cement sand, plaster or paint, the rate of moisture absorption and release would be reduced.

26.  In relation to the pattern of cracks that may be caused by vibration, Mr. Kung accepts that cracks would be exhibited at the weakest points of a surface, which may be at the finishing. In view of the clear evidence that the ceramic tiles on the entire floor, the floor itself to some depth as well as the floor skirting and a part of one partition wall of Flat 4B had all been removed, I accept that there would be impact or force exerted at different points across the ceiling slab of Flat 3B, and I am not surprised that such impact or vibration would first and immediately be manifested in the weakest points such as the junction between the ceiling or wall and the timber moulding, or elsewhere on the ceiling or partition wall which has a weak point.

27.  Mr. Kung also accepts that by the time a vibration wave has traveled a distance and through different materials, the wave would no longer be uniform. Since the cracks detected in Flat 3B were all seen on the finishing or surface layer, and the base layer was not examined, Mr. Kung also accepted in cross-examination that it was uncertain whether the crack on the sub-layer would be exactly the same in shape or curvature as the crack apparent on the surface layer. It may not be entirely reliable therefore to dismiss vibration as a cause of the cracks simply by virtue of the pattern of the cracks as they appear on the surface of the wall or ceiling.

28.  As for Mr. Kung's opinion that cracks caused by vibration should be most apparent on the ceiling of Flat 3B, apart from the fact that cracks manifested in areas other than the ceiling may represent the weakest points in the structure most susceptible to damage by vibration, the fact that 9 of the 20 cracks complained of by the Plaintiffs (nearly 50%) are found on the ceiling of Flat 3B would support Mr. Kung's statement.

29.  Mr. Kung's opinion, as stated in the Joint Report in respect of the cracks identified as C15 to C20, is that cracks due to thermal movement, shrinkage or inadequate shear reinforcement at the construction stage of the ceiling slab may reappear on the surface if there is "a slight movement of the structure". He accepts that vibration from the Works in Flat 4B can cause such slight movement of the structure. Mr. Kung also accepts in cross-examination that if cracks had existed in the sub-surface prior to the Works, the manner in which the Works were carried out in December 2008 would have aggravated the cracks and caused them to materialize in the manner they exhibited in December 2008. These matters, and Mr. Kung's opinion in the Joint Report that the likely cause of the cracks identified as C10 and C12 includes vibration, further support my conclusion that the vibration caused or contributed to the cracks appearing in Flat 3B in December 2008.

30.  In relation to the cracks detected in the ceiling of the master bathroom and the kitchen, the ceiling slab in these areas had been covered by false ceiling. Hence, there is no evidence from the Plaintiffs or from Mr. Lee that the cracks had not been seen before the Works commenced in December 2008. I am not satisfied that such cracks would more probably than not have existed before then, particularly in view of the evidence of the peeling off of paint which is apparent on the ceiling of the kitchen.

31.  For the same reason, I am not prepared to allow the Plaintiffs' claim to extend to the guest bathroom. The false ceiling in the guest bathroom had not even been opened up for inspection in or at any time after December 2008. I cannot infer from the available evidence that cracks must or would have appeared in the ceiling of the guest bathroom, and that repair works would be required.

Is the Defendant liable to the Plaintiffs in respect of the damage to Flat 3B?

32.  The issue framed by the parties on the question of liability is whether the Defendant's Works constituted negligence, nuisance and/or breach of the Deed of Mutual Covenant governing the building ("Deed").

33.  Clause 1 of the Deed which is referred to in the pleadings does not assist the Plaintiffs, as it refers to structural alterations (which are not shown to be the case here). Clause 12 of the Deed prohibits an owner from making or causing or permitting any disturbing noise, and from doing or causing or permitting anything to be done which "will interfere with the rights, comforts and convenience" of other occupants of the building.

34.  Apart from the Deed, it cannot be disputed that it is reasonably foreseeable by the Defendant, or by Mr. Chan who supervised the Works on behalf of the Defendant, that the application of force to the floor and the walls of Flat 4B, and the creation of vibration in the course of the Works which is likely to spread from Flat 4B are likely to cause damage to neighboring properties such as Flat 3B directly below Flat 4B. Damage to the owners of Flat 3B is hence reasonably foreseeable as a consequence of the Works.

35.  An act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his ownership or occupation of land is an actionable private nuisance (paragraph 20-01, Clerk & Lindsell on Torts, 20th Edition). Mr. Chan of the Defendant and counsel for the Defendant seek to emphasize that the Works were common renovation works and nothing out of the ordinary, but if such lawful act causes physical damage to the neighboring Flat 3B, such Works constitute nuisance (paragraphs 20-06 & 20-07, Clerk & Lindsell on Torts, 20th Edition).

36.  I would also consider the application of force to the floor and walls of Flat 4B and the creation of vibration in the course of the Works to be an unreasonable user of Flat 4B.

37.  The onus is of course on the Plaintiffs to prove that on a balance of probabilities, the cracks of which they complain were caused by the vibrations created in the course of the Works carried out at Flat 4B in December 2008. I have found that they have successfully discharged their burden. As Counsel for the Plaintiffs have rightly emphasized, the Plaintiffs do not have to prove that the Defendant's breach of duty or negligence was the sole, or even the main, cause of their damage provided that they can demonstrate that the Defendant's breach made a material contribution to the damage (para.2-29, Clerk & Lindsell on Torts, 20^th Edition). Any contribution which is not de minimis can be considered to be a material contribution (per Lord Reid in Bonnington Castings Ltd. v. Wardlaw [1956] AC 613, at 621).

38.  Given that damage to Flat 3B is reasonably foreseeable, even if there had been latent defects in Flat 3B which had been caused by differential movement or otherwise, if such latent defect has been aggravated or made apparent by the Works executed in Flat 4B, the Defendant has to be liable. As I am satisfied that the Works at Flat 4B caused or materially contributed to the cracks in Flat 3B, the Defendant's employment of a contractor to do the Works does not absolve the Defendant from liability.

39.  I conclude that the Defendant is liable to the Plaintiffs in negligence and in nuisance. There is also breach of Clause 12 of the Deed in that the Plaintiffs' property rights have been interfered with.

What are the damages payable by the Defendant to the Plaintiffs?

Cost of works

40.  The Plaintiffs rely on the quotation from Sunshine Engineering Co. ("Sunshine") dated 2 January 2009, to carry out repair, painting, cleaning and other works for a stated sum of $37,300. Much debate has focused on Sunshine's invoice, which was compared with another invoice issued by Sunshine on the same day, for essentially the same works, for a sum stated to be $39,000 but which in fact only tallies to an amount of $20,500.

41.  Mr. Lee explained that the earlier invoice for $39,000 contained errors and was replaced by the one for $37,300. Mr. Lee considers Sunshine's quote for $37,300 to be reasonable as he estimates the cost of the works involved to be $38,438.

42.  Sunshine's invoice covers work to be done to the master bathroom and the guest bathroom, which I will not allow. Mr. Lee, in the course of cross-examination, admitted that the total area of the walls in Flat 3B is 41 m² and the total area of the ceiling to be repainted is 40 m². No evidence has been adduced to explain the quantity of 105 m² and 55 m² respectively used by Sunshine for repainting the walls and the total area of the ceiling in Flat 3B. Any uncertainty or mistake in Sunshine's quotation should be construed against the Plaintiffs who seek to rely on the document. I will accordingly treat item 5 of Sunshine's quotation as costing $5,330 instead of the stated sum of $13,650 which cannot be explained, and likewise treat item 6 of the quotation as costing $5,600 instead of the stated sum of $7,700. This brings the total amount of Sunshine's invoice to $26,880.

43.  As I disallow the works to be carried out to the guest bathroom and the master bathroom, I will not allow item 8 and item 9 of Sunshine's invoice.

44.  Sunshine's quotation was submitted on the basis of repair and repainting works being carried out for the entire Flat 3B affected by the Works and the vibration. I disallow the works relating to the two bathrooms and the kitchen, which (on the limited evidence available) I estimate to roughly make up about 20% of the area of the entire Flat 3B. The charges identified in items 3 to 7 of Sunshine's quotation will accordingly be reduced by 20%, and the total costs of the invoice will be allowed at $17,674. According to Mr. Lee, these costs would be increased by roughly 15% to 20% today, and Sunshine's quotation was stated in January 2009 to be valid only for a period of 14 days. I will allow a 15% increase, bringing the sum to $20,325.10.

Costs of accommodation

45.  Sunshine estimates 7 working days for the works to be carried out at the site, and 5 days for mobilisation which Mr. Kung explains means work done outside the site. Mr. Lee considers Sunshine's estimate of the duration of works to be reasonable whereas Mr. Kung considers that 9 labor days would be sufficient for the repair and painting works to be carried out.

46.  The Plaintiffs seek alternative accommodation during the period of repair works. They rely on a quotation received for a serviced apartment in Langham Place in Mongkok, for rent at $39,600 in respect of a minimum term of one month.

47.  Having considered all the evidence, I will allow the costs for the Plaintiffs' alternative accommodation at Langham Place for a total period of 17 days, which takes into account the 5 days for mobilization such as moving and putting protective cover over the furniture at the premises, the 7 working days required for the repair and painting works, the intervening weekend for the work, and an additional 3 days to cater for the need to ventilate the premises after completion of the works. Bearing in mind the costs of $39,600 as the rent for one month, I will only allow $22,440 for the reasonable costs of 17 days’ accommodation.

Survey fees

48.  I will also allow, as part of the Plaintiffs' costs of this action and not as damages, the sum of $7,000 as the fees for the survey report.

Award

49.  The total award of damages to the Plaintiffs is accordingly $42,765.10, excluding the sum of $7,000 allowed for the survey fees. Interest will be allowed on the judgment sum at judgment rate. I will further make an order nisi that the Defendant is to pay to the Plaintiffs the costs of the action, to be taxed if not agreed, with certificate for Counsel.

Postscript on expert evidence

50.  In this case, over 5 days were spent at trial on the expert evidence of Mr. Lee and Mr. Kung. In my view, much of this time in the examination-in-chief of Mr. Kung and in the cross-examination of the experts could have been saved if the parties’ legal advisers and the experts had spent more time and devoted more effort to the proper preparation of the expert reports.

51.  It is high time that practitioners recognize that when they apply to the court for leave to adduce expert evidence, they should give careful consideration to the directions to be sought from the Court, to ensure that all the proper technical issues required to be addressed by the expert are clearly defined, and then make the best endeavors to narrow down the areas of dispute as well as the matters on which the experts should be called to give evidence. This is particularly so when the amount of the claim is not sufficiently substantial to warrant experts spending days in court to give evidence and the parties incurring the costs of paying for the time of their counsel or solicitors examining and cross-examining the experts. The lawyers should ensure that the experts have sufficient time to meet and discuss their respective opinion, to identify the grounds of their respective opinion and the matters relied upon in support of their opinion, and to identify the reasons for their disagreement. A joint statement by the experts indicating those parts of their evidence on which they are, and those on which they are not, in agreement as well as the reasons for their disagreement with the opponent expert's views should be prepared, as this will reduce the time otherwise required to be spent by the experts in court and the additional costs involved. These should all be included in the parties' consideration of the directions to be sought from the Court when application is made for leave to adduce expert evidence, and the parties should not simply ask for an order for leave to produce the evidence. The Court would expect experts to discharge their duties owed to the Court conscientiously and seriously, by attending the joint meeting and frankly discussing their views and their reasons for disagreement.

52.  Much of what Mr. Lee and Mr. Kung said in examination and cross-examination could and should have been set out in their expert reports. Mr. Lee's references to the tapping tests, and Mr. Kung's evidence on the pattern of cracks created by vibration and the codes of practice regarding structural designs of buildings were not mentioned in their expert reports although all these matters were relied upon by the experts in support of their respective opinion on the cause of the cracks. If they had been raised in their reports, or in their meeting or in a joint statement, the time on examination and cross-examination of Mr. Lee and Mr. Kung could have been much shortened. According to Mr. Lee, the experts only had "a short and brief discussion" on whether they were able to come to an agreement or disagreement and there was no detailed discussion concerning Mr. Kung's opinion. If that is true, then it is very regrettable, and the parties should recognize that it has led to the lengthening of the trial process, the unnecessary increase of costs, and a waste of the resources of the Court. This is not in furtherance of the underlying objectives of the Rules of the Court, and the Civil Justice Reform's emphases on cost effectiveness, reasonable proportion, procedural economy, facilitation of settlement of disputes and fair distribution of Court resources. Conducting litigation in this manner should be avoided, as the Court will not hesitate to mark its disapproval by an order of costs in an appropriate case in the future.