W. M. INDUSTRIAL (K.C.C.) LTD v. ADVANCE PLAN LTD

HCSA37/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 37 OF 2010

(ON APPEAL FROM SCTC 53322 OF 2008)

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J U D G M E N T

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Background

1.  The claimant (“KCC”) and the defendant (“APL”) shared the same building.  KCC occupied the ground floor while APL occupied the first floor.

2.  KCC alleged that APL permitted water to leak from its premise to KCC’s premise, causing damage to its property.  The first alleged leakage happened on 24 September 2007, the second alleged incident occurred on 29 May 2008 while the third occurred on 7 September 2008.  The three claims were considered together.

3.  The learned adjudicator held that there was insufficient evidence to prove that the water causing damage to KCC’s property came from APL’s premise.  Accordingly he dismissed the claim in respect of the 1^st alleged leakage.

4.  For the second leakage, APL had admitted liability but there was a dispute regarding damages.  This issue was resolved in favour of KCC.

5.  The third purported leakage occurred on 7 September 2008 and forms the subject matter of this intended appeal.  KCC alleged at around 9 p.m. there was water dripping from the ceiling.  KCC then informed the management office, and Mr Lam of the management office went up to the first floor.  Mr Lam inquired with one Ms Law (羅美妮) about the water leakage. Ms Law purportedly replied that it was caused by a customer busting a water pipe.  Ms Law assured Mr Lam that it had been fixed. Mr Lam met Ms Law at the reception area and did not go inside the room.  KCC also relied on a report written by Mr Lam 2 days after the purported leakage.  The report is consistent with Mr Lam’s evidence.

6.  APL alleged that there was no water leakage on 7 September 2008.  Ms Law testified that Mr Lam came to the first floor and asked about water leakage.  Ms Law said she did not know of any, and if there had been one she would have someone fix it.  She checked the rooms and found no signs of water leakage.  She also testified that when the customer in Room 1 had left, a cleaner went inside and found no leakage.  APL also relies on a bill that shows the customer in Room 1 left the premise at around 7 p.m.

7.  There was an alleged letter put in evidence, purportedly from Mr Lam’s superior that states that Mr Lam did not even enter the first floor and could not have talked to Ms Law.  This letter is plainly inconsistent with the versions put forward by KCC and APL and was not relied on by either.

8.  The learned adjudicator accepted Mr Lam’s evidence that Ms Law admitted there was water leakage some time before 9 p.m., 7 September 2008.  This finding cannot be challenged now.

Grounds of appeal

9.  The grounds of appeal relied upon are :

“(1) Failure to consider the alleged damage suffered by KCC was caused by the water leakage from the premise of APL;

(2) Failure to consider the previous occasions of water leakage, where APL was held not liable; and

(3) The extensive damage in KCC’s premises could not have been caused by the small amount of water leaked from APL’s premise.”

10.  Section 28 of Chapter 338 Small Claims Tribunal Ordinance provides that the only permissible grounds for leave to appeal from the Small Claims Tribunal are on point of law.  In essence, APL cannot dispute the findings of fact by the learned adjudicator.  However it is accepted that drawing improper inference from the facts may amount to an error of law.

11.  I shall consider the first ground now. Ms Dora K. H. Chan, counsel for APL submitted that the learned adjudicator came to the wrong conclusion that the water leaked from APL’s premise (if any) caused the damage in KCC’s premise.

12.  Relying on the floor plans available, the learned adjudicator was satisfied that the water came from Room 1, which was close to the damaged area (concourse) in KCC’s premise.  The water then caused damage to KCC’s property.

13.  Ms Chan submitted that the adjudicator erroneously used the floor plans, which are of different sizes and scales, to come to the conclusion that Room 1 was close to the concourse in KCC’s premise.  This is however a finding of facts that cannot be appealed against.

14.  Even if it can be said that the learned adjudicator made an error of law in using the floor plans, which I do not consider to be so, Ms Law’s admission of water leakage is fatal to the case of APL in any event, so far as the issue of causation is concerned.  The admission was given shortly after KCC complained of water leakage to the management office.  The closeness in time between the busting of water pipe and KCC’s damage makes it more likely than not that the damage was caused by the water leaking from APL’s premise.

15.  I now turn to the second ground, and that is the relevance of the previous water leakage.  I cannot see how the previous water leakage can be relevant when the learned adjudicator could find all the elements of the tort of negligence in respect of the leakage on 7 September 2008.

16.  Regarding the final ground, Ms Chan submitted that as the report by Mr Lam shows, APL had immediately turned off the water tap.  Therefore there could not be enough water to cause extensive damage to KCC’s premise.  Whether there was enough water to cause extensive damage is a finding of facts that I cannot interfere.  Accordingly I gave no consideration to this ground.

17.  A further point was raised in Ms Chan’s written submission, that is the learned adjudicator mistakenly took APL’s agreement to quantum of damages for $50,000 as admission to causation.  However, I cannot find such a confusion of the Adjudicator.  APL agreed with KCC that if APL was found to be liable, the quantum of damages would be $50,000.00 even though KCC’s claim was more than $100,000.00.  It is not opened to Ms Chan to submit that she opined that some stains in the ceiling were old stains and therefore they could not be caused by the dripping that evening.  Leaving aside the question of whether Ms Chan is sufficiently qualified for distinguishing ‘old stains’ from ‘new stains’, and ‘previous damage’ as opposed to ‘damage caused by the water leakage on 7 September 2008’, there is a greater issue caused by the agreement between parties to limit the damages recoverable.  The parties had already agreed that if APL was found to be liable for the damage, APL agreed that the quantum of damages would be $50,000.00.    As I have found above, the learned adjudicator had clearly directed his mind to the issue of causation of damage sustained before reaching his decision regarding damages based on the agreement between the parties.  He had clearly separated the issue of quantum from the issue of causation.

Conclusion

18.  APL put forward numerous matters and alleged the learned adjudicator should have considered them.  These matters are only relevant to the findings of facts.  As APL has not put forward any arguable point of law for appeal, I would dismiss its application for leave to appeal.  There shall be no order as to costs.