WONG PUI PING v. AU WAI KI JACKY AND ANOTHER

DCCJ 1225/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1225 OF 2007

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JUDGMENT

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Introduction

1.  This is a typical water leakage case in which the Plaintiff claims against the Defendants for loss and damage suffered by reasons of their negligence, breach of duties under Deed of Mutual Covenant, contravention of section 34H of the Building Management Ordinance (Cap. 344), nuisance, distress and inconvenience.

Background

2.  The building in question is Aldrich House, 373 Shau Kei Wan Road, Hong Kong (“Aldrich House”). The Deed of Mutual Covenant of Aldrich House is dated 26 September 1968 and registered at the Land Registry with Memorial Number UB648107 (“the DMC”).

3.  The Plaintiff (“Madam Wong”) is the registered owner of Flat A, 2^nd Floor, Aldrich House (“Flat 2A”).

4.  In 1992, the 1^st Defendant (“D1”) and Madam Au Kwai Ying became the registered owners of the property known as Flat E and Flat Roof , 3^rd Floor, Aldrich House (“Flat 3E”). In 2005, D1 and the 2^nd Defendant (“D2”) became co-owners of Flat 3E.

5.  Flat 3E is vertically above Flat 2A but they are not of identical size or layout. Flat 2A is for non-domestic purpose while Flat 3E is for domestic use.

6.  In 1996, water leakage commenced. It became more serious since 1998. Madam Wong tried to contact the owners of Flat 3E through the occupants of the same and a T & T Property Agency Co. (鴻昇地産) (“the Agency”), the latter being the rent collecting agent, but in vain.

7.  Madam Wong had lodged complaints to the Incorporated Owners of Aldrich House, the management company of Aldrich House and various government departments but of no avail. The leakage continued and caused damage to Flat 2A.

8.  On 7 July 2006, Madam Wong commenced legal proceedings at the Small Claims Tribunal under SCTC No. 39689 of 2006. 

9.  The water seepage stopped in around September 2006.

10.  Subsequently, Madam Wong amended her claim and brought it out of the jurisdiction of the Small Claims Tribunal. The action was then transferred to this Court in February 2007. 

11.  Madam Wong now claims for

(i)  the costs of repair; and

(ii)  loss of rental income from September 2000 to June 2006 at the rate of $4,500 per month; and thereafter at $5,500 per monthuntil September 2006.

12.  The Defendants deny the water leakage is originated from Flat 3E. They say that water comes from the communal pipes installed at the external wall of Aldrich House. 

Flat 2A

13.  In the approved plan of the 1^st and 2^nd Floor of Aldrich House, there is no particular demarcation for Flat 2A (Bundle C1, p40 and Bundle C2, p150, photo 3).

14.  Exhibit D6 is a copy of the layout plan of Flat 2A. It has a living room, a bedroom, a kitchen and a toilet.

15.  Someone must have altered the original layout of the 2^nd Floor: the female lavatory now becomes the toilet and the kitchen of Flat 2A while part of the male lavatory becomes part of the bedroom of Flat 2A.

16.  There is no evidence as to when this alteration took place and who did it.

Flat 3E

17.  Exhibit P3 shows the layout of Flat 3E and the relative location of Flat 2A. The original Flat Roof is marked in yellow. Certain illegal structures are erected at the Flat Roof turning it from an open space into an enclosed area and integrated with the original Flat 3E.

18.  There is no dispute that Flat 3E is now divided into 4 sub-units (known as sub-unit 1, 3, 4 and 5). Each of these sub-units has its own toilet and kitchen (see Exhibit P3). There were 6 sub-units (all with its own toilet) back in 1992 or 1993. Sub-unit 2 was pulled down in 2002 and sub-unit 6 was pulled down sometime in 2006.  The relative locations of these two rooms are marked “2” and “6” in Exhibit D7.

19.  Some parts of Flat 3E have a raised floor level (about 200mm above normal interior floor level). These parts are marked in black shades in Exhibit P3.

The Plaintiff’s Case

20.  Apart from Madam Wong, there are 4 other witnesses for the Plaintiff.

(i)  Madam Wong

21.  Madam Wong told the Court that while she is the sole registered owner of Flat 2A, her younger sister, Madam Wong Sang (“the Sister”), is also the other beneficial owner.

22.  Before the water leakage, Flat 2A was used by her son to store goods of his computer business. Since after the water leakage in 1996, the son has removed all his goods.

23.  As Madam Wong was not in good health condition and that she had to look after her husband, the Sister took up the responsibility to contact the owners of Flat 3E to resolve the water leakage problem. Since June or July 1996, the Sister contacted the Agency in order to locate the owners but of no avail. She also complained to the Mutual Aid Committee of Aldrich House and the Incorporated Owners of Aldrich House (following the dissolution of the Mutual Aid Committee) and sought their assistance. That is also fruitless.  The water leakage problem got worse and worse. It caused peeling off of the paint and concrete spalling at the ceiling. Water also ran down along the columns and wall causing damage to the columns and the wooden floor tiles.

24.  In March 2004, a complaint was lodged to the Buildings Department (“BD”) and the Food and Environmental Hygiene Department (“FEHD”).  In their letter dated 18 May 2004, the BD noted that there were signs of water seepage but decided not to take any action as the structure of the property concerned was not affected (Bundle C1, p39).

25.  The Sister also sought assistance from Eternal Year Property Services Limited (“Eternal Year”) which took over the management of Aldrich House in 2004. Yet, they cannot help much.

26.  It was not until 2006 that Madam Wong learned that she could find out the identity of the registered owners of Flat 3E by conducting a land search at the Land Registry.

27.  Madam Wong lodged further complaint to the Joint Office of BD and FEHD (“the Joint Office”) in June 2006.

28.  According to the letter of the Joint Office dated 9 October 2006, they did send their staff members to investigate into the complaint on 28 June 2006. As there were signs of water leakage (but with no dripping) at the living room, Coloured Water Tests were conducted at Flat 3E. The results did not indicate any water leaking from Flat 3E to Flat 2A. During their site inspection on 22 September 2006, the Joint Office noted that while there were dry water stains, there was no further water leakage (Bundle C1, p45 and p94).

29.  Madam Wong told the Court that all the drainage pipes of Flat 3E were replaced in around June/July 2006. The water leakage stopped after that. She did not eye-witness the replacement work but learned it from the Sister only.

30.  When this matter was still before the Small Claims Tribunal, Prima Technical Services Limited (“Prima”) was instructed to assess and find out the possible location and source of the water seepage. On 16 August 2006, Prima inspected Flat 2A and conducted certain tests. Prima did not inspect Flat 3E and thus cannot carry out any test thereat.

31.  Madam Wong also said that in around October 1996, a Ms. Tang would like to lease Flat 2A as a “dim sum” workshop at $6,000 per month. However, the deal did not materialize since Madam Wong was unable to contact the owners of Flat 3E and to resolve the water leakage problem.

32.  By reason of the water seepage, Flat 2A was left vacant since 1996.  

33.  Under cross-examination, Madam Wong admitted that there was once a structure extending beyond the external wall outside the bed room/kitchen. This structure was removed sometime before 2000.

(ii) The Sister

34.  The Sister’s evidence is more or less the same as Madam Wong.

35.  In late July 2006, the Sister saw a pile of worn-out water pipes at the corridor outside the entrance of Flat 3E and the lift. Some of the pipes are 3cm in diameter. For those elbow type, they are 10cm in diameter. The pipes are of different lengths and some have interconnections.  

(iii)  Mr. Wong Man Quink (“Mr. Wong”)

36.  Mr. Wong is a close friend of Madam Wong and the Sister. Since the water leakage in 1996, he has been assisting the Sister to resolve the problem.

37.  His evidence, by and large, is the same as Madam Wong and the Sister.

(iv) Mr. Kwok Bing Sun (“Mr. Kwok”)

38.  Mr. Kwok is a caretaker of Aldrich House. He was first employed by Eternal Year in 2000 and was posted at Aldrich House since 2004 when Eternal Year took over the management of Aldrich House.

39.  In July 2006, Mr. Kwok saw a pile of worn-out water pipes outside Flat 3E.

(v) Mr. Lau

40.  Mr. Chan, solicitor for the Defendants, does not dispute the evidence of Mr. Lau. He also informs the Court that he has no question to ask Mr. Lau. As a result, the Plaintiff did not call Mr. Lau to give evidence in Court. Further, by consent, the witness statement of Mr. Lau dated 13 May 2011 is admitted as evidence in this trial.

(vi) Ms. Caskie Hung Kam Ying (“Ms. Hung”)

41.  Ms. Hung is a senior project manager of PWL Building Surveying & Adjustors Limited (“PWL”) and the expert witness for the Plaintiff.

42.  Ms. Hung has prepared the following reports and joint statements:

(i)  The report dated 16 June 2011 (“PWL 2^nd Report”)

(ii) Experts’ Joint Statement dated 15 July 2011(“1^st EJS”)

(iii) Experts’ Joint Statement dated 29 August 2011 (“2^nd EJS”)

(iv) The report dated 27 February 2012 (“PWL 3^rd Report”)

43.  It should be noted that a Mr. Poon of PWL has also prepared a report dated 3 November 2006 for the Defendants (“PWL 1^st Report”). He estimated the repair cost at about $98,000.

44.  Ms. Hung tells the Court that there are 2 pairs of communal pipes (2 pipes each) which are mounted side by side on the external walls of Aldrich House (see the pipes marked in orange in Exhibit P2). One pair of them runs from the roof level, enroute the pipe duct (through the metal roof of the illegal structure at the flat roof of Flat 3E)  in sub-unit 3 of Flat 3E,  to lower levels (“the Communal Pipes”).  Ms. Hung believes that part of the Communal Pipes is embedded in, and runs along, the raised floor area of Flat 3E before emerging from Flat 3E out to the external wall.

45.  For easy reference, I shall divide the Communal Pipes into 4 sections. The section above the roof of Flat 3E is the Upper Communal Pipes (it is marked in orange and with a “red arrow” in Exhibit P2). The section inside sub-unit 3 is the Pipe Duct. The section embedded under the raised floor is the Embedded Communal Pipes. The section emerging from Flat 3E is the Lower Communal Pipes (it is marked in green in Exhibit P2).

46.  Exhibit P4 is the close up of the part of the Lower Communal Pipes and other pipes emerging from Flat 3E. The relative position of these pipes is marked with a “red cross” in Exhibit P3.

47.  Ms. Hung said that the waste pipes (collecting waste water from basins/sinks) and soil pipes (collecting waste water from water closets) of Flat 3E may be connected to the Embedded Communal Pipes. However, it is also possible that such pipes are not so connected as installing new pipes are more convenient. When I refer to this issue again, I am talking about the connection to the Embedded Communal Pipes under the raised floor.

48.  In the PWL 2^nd Report, Ms. Hung estimated the cost of repair at around $112,000.

49.  In the 1^st EJS and 2^nd EJS, Ms. Hung made certain observations concerning the reports prepared by Proficient Surveyors & Co (“PS”), experts engaged by the Defendants, dated 2 January 2007 and 22 June 2011 respectively. I shall refer these reports as PS 1^st Report and PS 2^nd Report respectively.

50.  In the 2^nd EJS, Ms. Hung was of the view that the leakage from the Embedded Communal Pipes may not be the only cause of the water seeping through the floor slab of Flat 3E and ran into Flat 2A. She observed that other drainage pipes inside Flat 3E were not inspected and checked (Bundle C2, p6, para 1.2.4). While she concluded that water seepage was found from the floor above Flat 2A, the exact leakage element and path could not be identified (Bundle C2, p9, para 4.1.3). 

51.  In PWL 3^rd Report, Ms. Hung, after having inspected Flat 3E on 21 February 2012, opined that the sources of water leakage were the drainage pipes embedded in the raised floor area of Flat 3E. In the witness-box, she refines the suspected source area to that within the green rectangle (see Exhibit P3). 

52.  Further, she had inspected the part of the Communal Pipes which runs pass the roof top of Flat 3E and found rust patches round the Communal Pipes and the hopper. The waterproofing layer was separated from the hopper and thus rain water may seep into the Pipe Duct.

(vii) Report of Prima

53.  The Plaintiff chooses not to call any witness from Prima.

54.  Nevertheless, the report prepared by Prima: Report on Water Seepage Assessment in relation to the inspection of Flat 2A and tests conducted thereat on 16 August 2006 is part of the Plaintiff’s case (“The Prima Report”). The Prima Report is dated 28 August 2006 with 3^rd amendment made on 10 November 2006 (Bundle C2, p12 onwards) and is produced as Exhibit P1.

55.  Infrared Survey and Microwave Moisture Survey are used to assess the location and the source of water leakage.

56.  According to the Prima Report, Infrared Survey can tell the temperature variations over a surface. The lower the temperature, the higher the moisture content and thus the location of seepage. Microwave Moisture Survey can tell the moisture content in the wall, ceiling or slab. The location of water seepage usually has high moisture content.

The Defendants’ Case

57.  The Defence called Madam Au Kwai Lan (“Madam Au”) and Mr. Wong Shun Tai Stewart (“Mr. Wong”) as their witnesses.

(i)  Madam Au

58.  Madam Au is the elder sister of D1 and the aunt of D2. She is responsible to take care of all matters in relation to Flat 3E for the Au’s family.

59.  Flat 3E was partitioned into 6 rooms in late 1992 and the raised floor was also erected at that time (“the Partition”). Since after the Partition, there is no replacement of the drainage pipes of Flat 3E.

60.  She learned about the complaint of the leakage in about 2004.

61.  She further told the Court that in round June/July 2006, the canopy and certain railings of Flat 3E were pulled down in order to comply with the directions of the BD.

(i) Mr. Wong

62.  Mr. Wong of PS is the expert for the Defendants.

63.  He has prepared the 1^st EJS, the 2^nd EJS, the PS 1^st Report and PS 2^nd Report. He also prepared the latest report dated 14 March 2012 (“the PS 3^rd Report”).

64.  In the reports and joint statements aforesaid, Mr. Wong opined that there is water leakage from the Upper Communal Pipes or the Pipe Duct. Water runs along the surface of the pipes down to the floor of the Pipe Duct (there is no raised floor for this area) and then seeps through the floor slab of Flat 3E and gets into Flat 2A.

65.  Mr. Wong assessed the repairing cost at around $23,000.

Discussion and Analysis

66.  The issues here are (1) the cause and origin of the leakage; (2) whether the Defendants are responsible for the leakage; and (3) if they are responsible, the damages payable to Madam Wong. 

67.  I will first of all deal with the possible sources of leakage as identified by the witnesses during different periods of time. If necessary, I will then analysis if there is any other sources.

(A) Possible Sources As Identified

(i) Early 1996 to September 2000

68.  This is the period during which there is leakage but the Plaintiff makes no claim for loss and damage suffered. Mr. E Chan, Counsel for the Plaintiff, informs the Court that the Plaintiff only claims for loss and damage suffered from September 2000 onwards because of limitation.

69.  There is thus no need for me to make any specific finding in relation to this period of time. Yet, some points should be noted here.

70.  In the claim form filed by Madam Wong under SCTC No. 39689 of 2006, she used the words “早晚時時有污水牆外瀉下”. It means that, at first, the leakage is at the external wall. Further, the leakage is not of continuous nature as waste water flows down at the external wall intermittently in the morning and at the night time. 

71.  In around summer/autumn of 1998, the ceiling of Flat 2A was also affected by water leakage. There is no evidence to show the source or origin of the leakage that affect the external wall and the ceiling of Flat 2A at that time. They may or may not be affected by the same source. Thus, the evidence of Madam Wong and the Sister in this regard should be understood as the external wall of Flat 2A was first affected and then the ceiling.

72.  Further, I have reservation as to when Madam Au first learned about the leakage. While the Agency was responsible to collect rental only, it is hard to believe that it will not pass the complaint to Madam Au or the Defendants.

(ii) September 2000 to April 2004

73.  The leakage continued in this period but it came to an end sometime in March 2004.

74.  I said this because the BD has inspected Flat 2A on 1 April 2004 and found dry water stains at the ceiling. It means the water leakage must have stopped before April 2004. The BD noted no apparent defect at the ceiling of the bathroom and the kitchen (Bundle C1, p43-44).

75.  I am of the view that it is very important. First, it is the Plaintiff’s case that the leakage did not stop until September 2006. Further, it means that the Embedded Communal Pipes, which serve all Flat Es (around 10 units) of Aldrich House and channel waste water out to the public drainage pipes, are not the source of water leakage. The reasons are as follow.

76.  As accepted by Ms Hung, even if there is no further leakage from the source, it will take some time for the affected areas to get dry. If the source of leakage is the Embedded Communal Pipes, it means that either (i) the cracks or holes in the pipes have been sealed up, or (ii) the occupants of all Flat Es have ceased using their basins, kitchens or even toilets (there will then be no water running along the pipes and thus no leakage) for at least a week or two.  

77.  There is no evidence or even suggestion that someone has repaired or replaced the Embedded Communal Pipes in this period. The cracks or holes in the pipes would not seal up themselves. I rule out the first possibility.

78.  As to the second possibility, I find it highly improbable in the absence of supporting evidence. I rule out this possibility too.

79.  It is thus my finding that there is no leakage from the Embedded Communal Pipes.

80.  How about the waste pipes and soil pipes of Flat 3E? I think the Court has to consider them separately because even if they are connected to the Embedded Communal Pipes, there must still be some parts which run on its own (such parts connecting the basins or sinks or floor drains or water closets to the Embedded Communal Pipes) bearing in mind the location of the Pipe Duct and that there are 4 toilets and kitchens. I shall refer to those pipes which run on its own as the Flat 3E Pipes.

81.  There is no evidence or even suggestion that the occupants of Flat 3E have ceased using their basins, kitchens or even toilets for a period of time as mentioned above. The reasoning that applies to the Embedded Communal Pipes also applies to the Flat 3E Pipes. It is thus my ruling that there is no leakage from the Flat 3E Pipes.

(iii) April 2004 to September 2006

82.  It is not clear when did the leakage resume. Anyway, it is not really that important.

83.  Madam Wong or the Sister lodged a complaint to the Joint Office on 16 June 2006. Officers of the same inspected Flat 2A on 28 June 2006 and found signs of water leakage. As a result, the officers also inspected Flat 3E and carried out Coloured Water Tests. (Bundle C1, p99). The results of these tests are negative.

84.  If the Flat 3E Pipes are connected to the Embedded Communal Pipes, the negative results mean there is no leakage from the Flat 3E Pipes and the Embedded Communal Pipes.

85.  If the Flat 3E Pipes are not connected to the Embedded Communal Pipes, the negative results can only show that there is no leakage from the Flat 3E Pipes.  

86.  Mr Wong inspected Flat 2A and Flat 3E in December 2006. He found high moisture content at certain parts of the ceiling of Flat 2A (see Exhibit D6, such parts are marked with “H”). He also conducted Coloured Water Tests and Water Ponding Tests at Flat 3E. Once again, the results are negative. This is not surprising as it is the Plaintiff’s case that there is no more water leakage since September 2006 because of the replacement of the drainage pipes of Flat 3E in July 2006.

87.  For the Coloured Water Tests, Mr. Wong tested the water closets only. For Water Ponding Tests, they were applied at the toilets.

88.  Negative results mean, to say the least, there is no water leakage from the Flat 3E Pipes or the floor slab of the toilets of Flat 3E.

89.  Apart from the tests at Flat 3E, Mr. Wong also conducted microwave tests at Flat 2A on 2 December 2006 and 17 December 2006 respectively. The results show no increment of moisture content at the spots tested (Bundle C2, p84). Indeed, the moisture content was lower on 17 December 2006.

90.  The tests carried out by the Joint Office and Mr. Wong (if the Flat 3E Pipes are not connected to the Embedded Communal Pipes) may not be able to show that there is no leakage from the Embedded Communal Pipes. Does it mean that they are the source of water leakage? If yes, why did the leakage stopped in September 2006?

91.  Mr. E Chan submitted that the leakage stopped because the Defendants had replaced all the drainage pipes inside Flat 3E. The only evidence that can support his submission is that Mr. Kwok and the Sister saw worn-out drainage pipes outside Flat 3E. I am afraid that is insufficient to prove, on balance of probabilities, that the drainage pipes of Flat 3E are replaced. The witnesses only saw pipes outside Flat 3E. If the submission of Mr. E Chan is correct, it means that anything placed outside Flat 3E must come from the flat. It should be noted that the witnesses had not entered Flat 3E and they did not eye-witness any replacement work.

92.  In order to replace all the drainage pipes of Flat 3E, the raised floor must be excavated in order to reach the pipes embedded thereunder. It means that the water closets and part of the floor tiles of the toilets and the kitchens have to be dug up and replaced with new ones after the replacement of the drainage pipes. Photographs of the toilets are taken by Mr. Wong on 2 December 2006. They are annexed to the PS 1^st Report (Bundle C2, p96 and 97.  Better copies of the photographs are sent to the Court on 28 March 2012). The condition of the toilets (including the grouting between the floor tiles, the grouting between the water closets and the floor tiles, the pipes, the water-closets and the stains on the tiles and around the pipes) as shown in the photographs does not tally with the suggestion of any replacement of new floor tiles and water closets in July 2006.   

93.  It is therefore my finding that there was no replacement of the drainage pipes of Flat 3E in 2006.

94.  There is no other evidence which can prove there was leakage from Flat 3E or the drainage pipes at Flat 3E. The Prima Report can only demonstrate which parts of the ceiling have a higher humidity level or higher moisture content. In a multi-storey building, there is no presumption that the water source necessarily came from the flat immediately above (Hui Ling Chun v Shiu Mak Ying and Another, unreported, DCCJ No. 10294 of 2001, 3 March 2004; Vast Team (Hong Kong) Ltd v Hong Kong Marine Contractors Ltd [2011] HKDC 120).

95.  The reports or statements prepared by Ms. Hung and Mr. Wong are of limited relevance and assistance. They are prepared after the leakage has stopped. What they observed in 2011 and 2012 may or may not be the same as that in 2006.

96.  While there is no replacement of the drainage pipes of Flat 3E and yet the water leakage stopped, the only reasonable conclusion is that there is no leakage from the Embedded Communal Pipes.

97.  There is no allegation or no evidence to show that the Communal Pipes have been replaced or repaired. If the source of the leakage is the Communal Pipes, there is no reason that the leakage stopped in September 2006 without repair or replacement. 

98.  It is therefore my ruling that the Plaintiff has failed to prove water leakage from the drainage pipes at Flat 3E.

(B) Other Sources

99.  As Flat 2A is affected by water leakage, the water must come from other source(s), for example, rain water or the broken pipe(s) of other unit(s) on higher floor(s). How can the water get to the ceiling of Flat 2A? How can the water seep through the ceiling? Should there be waterproofing membrane or waterproofing works at the floor slab of the Flat Roof which is an exposed surface according to the approved plan of Aldrich House?

100.  Since water was there, it is clear that it has its own way in getting to the ceiling of Flat 2A. The point is we do not know where it comes from and its path. 

101.  Ms. Hung is of the view that the construction of the raised floor adds extra weight loading to the original floor slab. The total weight of the floor (original + raised floor slab) probably exceeds the weight bearing capacity of the original waterproofing works (”the Waterproofing”) and thus causes damage thereto. By reason of the damage, the Waterproofing fails to serve its function and thus water can seep through the malfunctioning Waterproofing into Flat2A.  

102.  Mr. Wong holds a different view. He said that anyone can get access to the original flat roof and thus its loading capacity and that of the Waterproofing should be able to bear the weight of an ordinary male. He did certain calculations by reference to ordinary concrete (with a weight of 70-80 lb per ft³) and light weight concrete (with a weight of 28-32 lb per ft³) to show that the weight of the raised floor (its thickness is around 350 mm at the flat roof area and around 200 mm inside the original Flat 3E) is far lighter than an ordinary male of around 150-200 lb. 

103.  Before I deal with the views of Ms. Hung and Mr. Wong, I shall go back to the locations of seepage in Flat 2A again. According to the Prima Report, it is the rear portion of the living room and the bedroom (Exhibit P1, p23. Exhibit D7 may not have clearly identified the water seepage locations). These areas are immediately underneath the original Flat 3E. That is indoors. Would there be any waterproofing work at the floor slab concerned? While there is no evidence on this, I think it is more probable than not that there is no waterproofing works as it is not necessary. 

104.  The front portion of the living room which is immediately underneath the original roof flat of Flat 3E (now underneath the toilet and kitchen of sub-unit 3) where there should be waterproofing work is not identified by Prima as a location of water seepage.

105.  As to Ms. Hung’s view, there is no evidence as to the loading capacity of the Waterproofing. There is also no evidence as to whether there is any waterproofing work in relation to the raised floor.        

106.  Mr. E Chan submitted that the Defendants have not merely failed to adduce evidence concerning whether there is any waterproofing work at the raised floor and the construction materials used but also failed to adduce evidence as to the original layout of the 6 sub-units and the layout out of the drainage pipes embedded under the raised floor etc. He submitted that this Court should draw adverse inference against the Defendants.

107.  While there is no dispute as to the legal principles that the Court can draw adverse inference against a party under the maxim omnia praesumuntur contra spoliatorem and the principle set out in Tullet & Tokyo International Securities Ltd v APC Securities Co. Ltd [2001] 2 HKC 713, I think it is always a matter of evaluation of evidence and the principles should be applied against the background of the case.

108.  I do not think it is possible for the Defendants to adduce any evidence as to the loading capacity of the original flat roof and the Waterproofing without digging up the flat roof and to carry out relevant tests. It is for the Plaintiff to prove her case. If the Defendants are required to adduce evidence in this regard, it means shifting the burden onto the Defendants.

109.  The raised floor was constructed 20 years ago. Is it reasonable to expect the Plaintiff to keep the papers concerning the waterproofing work and the layout of the pipes? I do not think so.

110.  In the absence of evidence as to the loading capacity of the Waterproofing and whether there is any waterproofing work in relation to the raised floor, I prefer Mr. Wong’s view and it is my ruling that the construction of the raised floor, by itself, would not cause damage to the Waterproofing.         

111.  The fact that there is water at the ceiling of Flat 2A does not necessarily mean that the waterproofing layer (if any) at the floor slab immediate above is defective. Water may come from somewhere with no waterproofing or with defective waterproofing and runs to the ceiling concerned without the need of going through that part of waterproofing layer immediate above the ceiling.

112.  In the present case, there is no evidence as to where the water comes from and how it gets to the ceiling of Flat 2A.

Conclusion

113.  I have carefully considered all the evidence and submission of the parties. While I have great sympathy with the Plaintiff, I am afraid I still have to say that she has failed to prove her case.

114.  I have no alternative but to dismiss her claim.

115.  I also make an order nisi that the Plaintiff to pay costs of this Action to the Defendants including all costs reserved to be taxed if not agreed. This order shall become absolute unless there is application to the otherwise within 14 days after handing down of this Judgment.

116.  If I may be permitted to echo the observation of HH Judge Lok in Vast Team (Hong Kong) Ltd v Hong Kong Marine Contractors Ltd [2011] HKDC 120 that water leakage claims are both expensive and difficult litigations. Though a lot had been done here, the cause of the water leakage remains a mystery. The position may be different if the Plaintiff engages experts soon after the water leakage but not to wait until 10 years later in 2006.