WONG SZE SHUN SYSON AND ANOTHER v. AU MEI LING EVA AND OTHERS

HCA5646/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5646 OF 1997

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J U D G M E N T

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The Plaintiffs' claim

1. The Plaintiffs issued proceedings against the 1st and 2nd Defendant on 27th May 1997. On 7th July 1997, the Plaintiffs discontinued the action against the 1st Defendant. The 2nd Defendant issued a Third Party Notice against the Third Party who never filed a Notice of Intention to Defend, nor a Defence to the claim by the 2nd Defendant. Throughout the trial, the Third Party himself was present in person except for the hearing on 17th December 1998 when he was absent from Court.

2. The Plaintiffs are the owners and occupiers of the premises known as 13th Floor, Royal Court, No.52A Tai Hang Road, and the 2nd Defendant was the occupier of the premises on the floor above, namely, the 14th Floor. It is alleged in the Statement of Claim that on or about 12th May 1997 water dropped from aluminium false-ceiling strips in the master bathroom of the Plaintiffs' premises. The water had come from the Defendants' premises. The Defendants' premises had accumulated and was flooded with water. The premises had undergone interior decoration works and a water pipe had burst and water percolated the Defendants' premises and dripped and penetrated into the concrete floor slab resulting in dripping of water into the Plaintiffs' premises. The Plaintiffs claimed against the Defendants for negligence and/or breach of duty of care under the Occupier's Liability Ordinance Cap.314. The Plaintiffs also aver that in so far as may be necessary, they will rely upon the doctrine of res ipsa loquitur to establish that the bursting of the said water pipe and the water leakage were caused by the negligence of the Defendants. The Plaintiffs only claim for special damages and do not claim any general damages. The special damages were quantified in the sum of $47,440.

3. When the matter first came before me on 28th May 1998, I inquired of the parties the reason why this claim was in the High Court and not in the District Court. The Plaintiffs explained that the Writ was taken out in the High Court because at that stage it was anticipated that the damages sought would far exceed the jurisdiction of the District Court. When it was eventually decided that the claim would only be $47,000 odd, it was decided to leave the case in the High Court and on the first day of the trial, the Plaintiffs' Counsel expressed the wish that since the parties were all gathered in the High Court, ready for trial, they would like the trial to start. The Defendants' Counsel informed the Court that it was common ground that a water pipe burst in the Defendants' flat but causation was not accepted and quantum of damages was also in issue.

Evidence adduced on behalf of Plaintiffs

4. Madam Wong Sze Shun ("Madam Wong") gave evidence that on 12th May 1997, she saw water drip in the toilet of the master bedroom. There was a lot of water dripping from the ceiling through the quartz light. Water dripped onto the bathtub. There were two lines of water which came down. She went to the 14/F and saw shallow water in the guest bathroom. In the master bedroom toilet she saw a burst water pipe. Water kept coming out and was deeper than in the first toilet. The Third Party in the proceedings who was the contractor responsible went down with Madam Wong to her flat with a bucket and he opened the false-ceiling and tried to dry it. He opened up the aluminium strips and tried to dry them. Water came through the lights onto the bathtub. The dripping went on for two days. There was an air-conditioner outside the guest bathroom in the dining room and water leaked out from the electric socket of the air-conditioner. The top of the ceiling in the master bedroom was very damp and there was a damp patch. On the wall between the wardrobe and the bay window, there was a water mark from the ceiling down to the ground. Madam Wong touched the water mark and found was wet. In the living room there was one big spot on the ceiling, like a ping pong ball, iron rust in colour. A few days after the water pipe burst, the spot grew bigger. In relation to this spot on the ceiling, it was conceded by PW3 Mr Danny K.H. Tsang, who was the Plaintiffs' expert, that this spot was not caused by the seepage of water from the flat above.

5. In the dining room under the air-conditioner and under the socket, there was a big patch of mark along the wall. This was the biggest patch which Madam Wong discovered and she found it to be very wet and water bubbles came out. The patch was about 1 foot long. After two or three months, in the guest toilet, along the corridor there was a water mark. Patches of water mark were found on the wall outside the guest toilet. She found a water mark on the wall connecting the guest room and the guest toilet. This mark was not a small one and was very clear. There was a cabinet dividing the top of the study and the ceiling and she found the paint on that wall had come off. She noticed this several days to one week after the leakage. After the leakage, she found that the paint had come off from the ceiling of the kitchen and she noticed this about one or two months later.

6. After the leakage, she found the carpet in the flat turned black and became dirty more easily. Soon after the leakage, she changed some of the lights. Water trickled from the lights, and it was dangerous and some lights became defective. The quartz light and fluorescent tube on the ceiling in the master toilet were changed.

7. Under cross-examination, she said that there was a large area of water mark on the wall where the split air-conditioner was. On the wall separating in the guest bathroom and the corridor was a water mark. She saw water in the bathroom of the 14th Floor. In the master bathroom, she saw water was oozing out from a water pipe. She saw the end of the pipe which was exposed on the floor and water was oozing out. On 13th May 1997, paint did not come off from the wall of the study, it just began to hang loose. A receipt for replacing the lights was given to the solicitors. The lights were replaced at the end of May 1997. The quartz lights and fluorescent tube in the master bathroom were replaced.

8. The Plaintiffs also called Mr Eric Jum ("Mr Jum") who was the Property Officer of AA Property Services Limited which managed Royal Court. On 12th May 1997, Mr Jum went to the 13th Floor and saw a water patch mark on the wall. This was next to the air-conditioner in the dining room. He touched it and found that it was wet. Of the damp marks in the master bedroom, he found that they were as tall as himself (5'11") and roughly 2 feet wide. There was a water mark at the end of the bed next to the bay window. He touched the wall and found that it was wet. In the master bathroom, he found a small amount of water on the outer edge of the quartz light. He also saw water dripping from the pipe above the aluminium strips in the master bathroom. He went to the 14th Floor and stood outside the guest bathroom. The floor was flooded with water and the depth of the water was half an inch to one inch. In the master bathroom, the flooding on the floor was even more serious than the guest bathroom. The tiles on the floor of the bathrooms had been removed and the concrete base was exposed and water penetrated the concrete.

9. The last witness called by the Plaintiffs was Mr Danny K.H. Tsang, who was a Director of the Oriental Loss Adjusters Limited. On 17th May 1997, he was instructed by Miss Wong to assess the damage to her flat and on the same day he inspected the premises. In the master bathroom, he noticed very obvious water marks on the concrete ceiling. In the master bedroom, he found on the ceiling an obvious piece of water mark very close to the master bathroom. It was a fresh piece of water mark. On the wall of the master bedroom, he touched the paint work and found that it was wet. On the wooden panel dividing the master bedroom and the study, he noticed wet marks on the ceiling and the higher portion of the wall on the wooden dividing panel. It was also wet. He was very sure that the source of water was the master bathroom on the 14th Floor. He also explained how the socket near the air-conditioner in the dining room became defective, namely, that the density of the concrete behind the socket was affected because the wall was drilled through to install the socket.

10. Under cross-examination, he said that the water mark in the dining room was 3 inches by 4 inches. He said it was absolutely impossible that the water came in via the external wall because the affected area was 10 feet from the external wall, so if there were cracks in the external wall, the affected part would be close to the external wall. The exterior wall had mosaic tiles, therefore it would have been quite difficult for rain water to permeate the tiles into the interior wall.

The Defence case

11. The Defence relied upon two experts, the first of whom was Mr Leung Kwok Wai ("Mr Leung"). Mr Leung said that he only spotted a water mark five inches by six inches in the middle of the wall below the air-conditioner. There was no water path above the mark, so it was impossible that the mark was caused by a water pipe burst. He said that the guest toilet had hot and cold water, and if the joint of the water pipe was defective, there would be water seepage. He said that he saw the water mark in the master bedroom near the bay window and he believed that this mark was not caused by the water pipe burst from the upper floor because the bay window was next to the outer wall and the water mark did not go from the ceiling to the wall, it started from some distance from the ceiling. He said that in his experience, it was possible that this mark was caused by seepage of water from the outside wall. His conclusion was that none of the damage was caused by the water pipe burst on the upper floor.

12. The next expert relied on by the Defence was Mr Eric Chan Kwok Hang. He was a Director in a waterproof projects company and on 13th May 1997, on the instructions of Mr Ng Yui Kwong ("Mr Ng") of the 2nd Defendant, he went with Mr Ng and the Third Party to the Plaintiffs' flat on the 13th Floor. In the bathroom, he touched the ceiling and from his judgment he opined that there had not been a seepage on the ceiling. In the study, he noticed a water mark which was caused by water seepage but the seepage had not occurred within a week or ten days. He touched the wall and powder dropped off. The presence of that indicated to him that the particles only formed after a certain period of time. If it was only several days old, the particles would not be found. In his judgment, for the particles to become dry, the time lapse would not be less than 10 to 15 days.

13. In the living room, he examined the water mark and touched it. Plaster was in loose form and there were some loose particles. When he touched the paint, it came off and was very hard. That was why, in his opinion, the water did not come from above. He also examined the false ceiling in the master bedroom and toilet and found no trace of water on the aluminium false ceiling strips. He said it would be impossible for the strips to become rusty if water seeped only once. He examined the ceiling of the 13th Floor and saw no past damage or water marks. As regards the sitting-room, his opinion was that it would only be necessary to repaint one wall of the sitting-room and the ceiling of the sitting-room need not be repainted. His opinion was that the water seepage on the 14th Floor should not have led to the wall on the sitting-room of the lower floor to have water stains. His view was that it was probable that the water seepage was caused by the external wall. In his opinion, there had to be a crack for water to pass through, otherwise, there would be no water stain.

Assessment of the Evidence

14. Mr Tsang, the Plaintiffs' expert conceded that the hairy cracks which developed, firstly, on the party wall inside the study, and secondly, on the party wall in the hallway were not the result of the flooding, but the other affected areas were caused by the water seepage from the Defendants' premises.

15. I accept the evidence of Miss Wong and Mr Eric Jum that there was the damage to the 13th Floor flat which these two witnesses testified above. I do not accept the evidence of the two Defence experts that none of the damages which Mr Leung found on the 13th Floor was caused by the water pipe burst on the upper floor. I also do not accept the evidence of Mr Eric Chan that the water mark that he found on 13th May was caused more than a week or 10 days ago and that when he touched the wall, powder came off which indicated that the powder was formed after a certain period of time. I also reject his evidence that in the living room he found the plaster in loose form and there were some loose particles and that when he touched the paint, it came off and was very hard. I accept the evidence of Miss Wong that she only saw the water mark that she gave evidence about immediately after the flooding incident. I accept the evidence of the Plaintiffs' expert Mr Tsang as regards why the water mark did not start from the ceiling in the dining room. The first reason Mr Tsang gave was that there was a different density in the cement or concrete between the top and the upper area on the party wall, and the second reason was the damage which was done to the structure of the wall near the air-conditioner socket.

16. I do not accept the theory of Mr Leung, the Defence expert, that the water leakage occurred in the guest bathroom behind the party wall with the dining room. The theory advanced by the second Defence expert, Mr Eric Chan, that the water travelled from the condenser all the way to the air-conditioner unit via a sponge rubber insulation is unacceptable because the water marks were not found immediately below the vents of the air-conditioner unit. Later, in cross-examination, Mr Chan gave another explanation for the water mark on the wall. This time he stated that there was a small pipe for drainage and the water mark was caused by the water arising from condensation. He further explained that the pipe was laid and installed beyond the top of the power socket before bending towards the left all the way to the window on the left side of the wall. This suggested installation method would not have worked because the power socket is slightly above the air-conditioner and the condensation water could not have drained properly since it would then flow back to the unit. Mr Chan never examined the installation of the air-conditioning unit at the time when he visited Miss Wong's flat. He never opened up the unit to ascertain the laying of the pipes, nor was he aware that the air-conditioning unit shared the same condenser as another cooling unit.

17. On the other hand, the final witness called by the Plaintiffs, Mr Lee Cheuk Kit ("Mr Lee") gave evidence that the pipes were laid running from the left hand side to the direction of the window in the guest bathroom. I accept the evidence of Mr Lee who was an expert on air-conditioning installations. Mr Lee actually examined Miss Wong's air-conditioning unit with a view to finding out the manner of installation of the pipes. He also had experience in previous installations of the same type of air-conditioner on the 17th Floor of the same building.

Assessment of quantum

18. On the first two items claimed by the Plaintiff, namely, the plastering and painting of all walls and ceilings in the flat, I would only allow eight man-days for this particular job and on the basis of $700 per day, that comes to $5,600. I would not allow item (3) as this is preventive in nature. For item (4), I would not allow this because in my view the aluminium false-ceiling strips need not be replaced and could be cleaned quite easily. As regards item (5), the replacement of two pieces of ceiling quartz lights, this item is not allowed. In her answer to the interrogatories, Miss Wong said that the quartz lights were not replaced, but in the witness box she said they were replaced about one month after the incident in 1997. Furthermore, the receipt for the cost of the replacement was never produced in Court so there is no evidence how much the replacement, if it took place, cost. For item (6), protection work for wall-to-wall carpet, I will allow the sum of $5,000, which is on the basis of nylon sheets or cloth being used to protect the carpet, which would cost about $5 per square foot. Item (7), the replacement of the wall power socket and its electric wiring serving the air-conditioner in the sum of $1,890 is allowed in full. As regards items (8) and (9), removal of debris and general cleaning after remedial work, I would only allow the sum of $1,000. That brings the total to $13,490.

19. I therefore give judgment to the Plaintiff in the sum of $13,490 and costs to be taxed on the District Court scale if not agreed.