CHIOU HSIN YING v. WONG SHING YU BYRON

DCCJ 3304/2017

[2021] HKDC 1225

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3304 OF 2017

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J U D G M E N T

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1.  This action is for the loss and damage to a residential property as a result of water seepage.

2.  The plaintiff and the defendant are upper and lower floor neighbours of a multi-storey residential building - Lung Cheung Garden (“the Building”), No 26 Praya, Kennedy Town, Hong Kong.  The plaintiff was the owner of Flat B, 35^th Floor, (“P’s Flat”),[1] and the defendant owned Flat B, 36^th Floor (“D’s Flat”).[2]

3.  D’s Flat is situated immediately above P’s Flat.  The terms of the Deed of Mutual Covenant registered in the Lands Registry by Memorial Number UB6022477 (“the DMC”)[3] applies to both flats.

Background

4.  The following events are not disputed:-

April 2016	Water began seeping into P’s Flat, causing severe damage to the concrete ceiling and walls of the master bedroom as well as the ceiling of the toilet at P’s Flat.  The plaintiff complained to the building management office.	§5 of P’s WS [59]
July 2016	The seepage persisted and the plaintiff complained again to the building management office and to the Food and Environmental Hygiene Department (“FEHD”).	§6 of P’s WS [59]
14 July 2016	FEHD inspected both flats.	§7 of P’s WS [59]
28 July 2016	FEHD carried out inspection and conducted Colour Water Dye test (“CWT”).	§7 of P’s WS [59] [989-990]
2 September 2016	FEHD conducted inspection at both flats.	§7 of P’s WS [59]
October 2016	FEHD informed the parties that their inspections were inconclusive as to the source of seepage but confirmed that there was seepage at P’s Flat.	[983 & 992]
24 November 2016	FEHD notified the defendant that it would appoint David S K Au & Associates Ltd (“DSKA”), a professional consultant, to investigate the water seepage.	[966]
17 December 2016	Upon agreement between the plaintiff and the defendant over the telephone, the plaintiff, the defendant’s mother and 3 contractors engaged by the defendant (including Su Kin Leung (“Su”))  attended both flats for an inspection (“December Inspection”).	§§7-8 of P’s WS [59]
Mid-late December 2017	Su advised the defendant that to inspect possible seepage from the water pipes, an opening to the floor of D’s Flat was required.	§7 of Su’s WS [394]
5 January 2017	Su provided a quotation to the defendant (“January Quotation”)  in respect of opening up the floor and inspection of embedded water pipes at D’s Flat.	[378-379]
January 2017	As the defendant did not wish to disturb his tenant, the proposed works to D’s Flat were withheld.	§8 of Su’s WS [394]
February 2017	Seepage persisted and the plaintiff engaged a surveyor firm, Hong Kong Survey Limited (“P’s Expert”)  to conduct more comprehensive investigations.	§9 of P’s WS [60]
16 February 2017	The plaintiff’s husband tried to make an appointment with the defendant on WhatsApp for P’s Expert to conduct an inspection at D’s Flat but they were not able to agree on a mutually acceptable time.	[1041-1043]
23 February 2017	P’s Expert’s first inspection at P’s Flat made the following observations/ conclusions:- (1)  The master bedroom and the bathroom at P’s Flat was affected by seepage. (2)  Florescent material was found on the ceiling at the master bedroom of P’s Flat. (3)  Evidence and signs that D’s Flat was the source of seepage. (4)  No evidence/signs of damage/ seepage at the external wall and the pipes thereat of the building.	[104-106] [96]
27 February 2017	The plaintiff commenced an action at the Small Claims Tribunal against the defendant for damages caused by the seepage in the amount of $50,000.	[967-973]
4 March 2017	P’s Expert’s second inspection at P’s Flat observed seepage.	[104-105] §5.2.2 of P’s 1st Expert Report [104]
15 March 2017	DSKA was engaged by FEHD and carried out its first inspection to both flats.  Pond test at D’s Flat and first result of monitoring of P’s Flat was made.	[1009]
4 April 2017	DSKA conducted the 2nd result of monitoring of P’s Flat.	[1009]
13 April 2017	P’s Expert issued a report (“P’s 1st Expert Report).	[73-157]
26 April 2017	P renewed the tenancy agreement with her tenant (“Renewed Tenancy Agreement”).	§13 of P’s WS [54] [158-161]
20 May 2017	The plaintiff’s tenant gave notice of his intention to terminate the Renewed Tenancy Agreement.	§14 of P’s WS [54] [162]
23 May 2017	DSKA Investigation was reported in FEHD’s letter to the defendant stating that the source of water seepage could not be located.	[992]
15 June 2017	The plaintiff discontinued her claim at the Small Claims Tribunal.	[978-981]
29 June 2017	The plaintiff’s solicitors sent a letter before action demanding response within 14 days (ie, by 13th July 2017).	[163-165]
29 & 30 June 2017	The plaintiff entered into non-exclusive agency agreements with 2 property agencies.	§16 of P’s WS [55] [166-167]
1 July 2017	The Renewed Tenancy Agreement was terminated and the plaintiff’s Flat was left vacant.	§33 of P’s WS [64]
8 July 2017	The Management Office put up a “Notice of scaffolding” at D’s Flat for works to be undertaken at D’s Flat between 12 and 26 July 2017 (“Notice”).	[168]
21 July 2017	The writ was issued.	[1-32]
12 September 2017	Hong Kong Building Inspection & Structural Diagnostic (“D’s Expert”)’s first inspection at both flats (at which P’s Expert was also present).  It was found that seepage has ceased.	[407-522]
12 October 2017	D’s Expert’s second inspection at both flats (at which P’s Expert was also present).	[3/407-522]
4–15 November 2017	Remedial works took place at P’s Flat and the plaintiff obtained a quotation on the replacement of wardrobe for the master bedroom.	§§23-24 of P’s WS [60] [365-366]
9 November 2017	D’s Expert issued a report in respect of the Joint Inspection (“D’s Expert Report”).	[407-522]
December 2017	The plaintiff renewed the non-exclusive agency agreements with the property agencies.	§25 of P’s WS [61]
13 January 2018	P’s Expert issued a report to comment on D’s Expert Report (“P’s 2nd Expert Report”).	[218-364]
3 January 2018	P’s Flat was let to a new tenant starting on 8 January 2018.	§25 of P’s WS [61] [368-376]

The plaintiff’s case

5.  The plaintiff’s case is that since about April 2016, water began seeping from D’s Flat to P’s Flat, causing severe damage to the concrete ceiling and walls of the master bedroom as well as the ceiling of the toilet at P’s Flat.[4]

6.  P’s Flat was let out since 1 June 2015 to 31 May 2017 and thereafter from 1 June 2017 to 31 May 2019.[5]

7.  Since July 2016, the plaintiff had made various complaints to both the Management Office of the Building and FEHD in relation to the seepage.

8.  The seepage persisted until around late July 2017 when works were undertaken at D’s Flat (“D’s Works”).  As a result of the seepage and the defendant’s failure and/or refusal to put a stop to it (until around late July 2017), the plaintiff has suffered loss and damage.[6].

The defendant’s case

9.  The defendant accepts that there were signs of water seepage in P’s flat.  However, it is the defendant’s case that D’s Flat was not the source for the seeped water.[7] 

10.  The defendant put the plaintiff to strict proof regarding the alleged loss and damages suffered.  The defendant also denies that the alleged loss and damages suffered by the plaintiff was due to the alleged water seepage problem.[8]

11.  The following are the parties’ agreed list of issues in dispute[9]:-

Issue (1):  Whether the works undertaken by the defendant at D’s Flat between the date of P’s 1^st Report and the D’s 1^st first Report remedied the water leakage problem?

Issue (2):  Whether D’s Flat was the source of the water leakage problem at P’s Flat?

Issue (3):  If the source of the water leakage problem is D’s Flat, whether the defendant is liable under the DMC, for nuisance and/ or negligence.

Issue (4):  If the defendant is liable, what is the appropriate quantum (Prayers C to E)  and is it appropriate to grant injunctive orders (Prayers A and B).

The Legal Principles

12.  It was held in Lam Ting Kwan & Lam Ng Sau Ling v Teamwell Corporation Limited (DCCJ 17/2016, 26 November 2019)  (applying Yan Wing Fai Rich & Another v Century One Limited (unreported, DCCJ  2773/2009, 2 February 2011):-

“Once that the defendant was made aware that there was a water leakage the source of which could reasonably be identified to be from its property, it has the duty to investigate, locate and repair such water leakage in a prompt and reasonable manner.” (Emphasis added)

13.  There is no presumption in law that the source of water leakage into the floor below must necessarily come from the flat above.  The plaintiff bears the burden to show that, on balance of probabilities, the source of water came from the defendant’s flat, 張秀玲及另一人 訴 鄭禮莊, CACV 268/1998, unreported (9 April 1999)  at § 21 and followed in Leung Yung Chun & another v. Chan Wing Sang & others [2000] 1 HKLRD 456 at 461I.

14.  Woo J. (as he then was)  in 張秀玲’s case, supra stated in paragraph 26 that the test that the defendant knew or ought to have known is a pre-requisite to hold one liable for nuisance in the context of water seepage in multi-storey building in Hong Kong:-

“26. 漏水可能導致「滋擾」，而法律就這項目有很明確的規範。簡單地說，有以下幾種普遍情況：

(1)  若漏水是在一處地方（包括樓宇單位）中發生，招致鄰舍（包括另一單位）損失時，而事源地方的戶主（是使用該地方的人，不一定需要是業主）明知漏水根源，他便是有意圖滋擾而須負法律責任。法律責任包括賠償及受禁制令禁制。

(2)  若漏水不是事源地方戶主自己或自己應代為負責的人所招致，而他又不知道漏水已發生，他就不須對漏水所招致鄰舍的損失負責。

(3)  若漏水不是事源地方戶主自己或自己應代為負責的人所招致，當他知道漏水源於他單位內，他須在無合理延誤下作出補救。否則，他須為該項漏水所招致鄰舍的損失負上法律責任。

(4)  以上三項中的「知道」，是指兩種情況：(a) 是實質地知道，或(b) 是在通常及合理謹慎下應可知道。故此，就算戶主實質上不知道漏水的存在，因為他不在事源地方，他也不能藉此推卸責任。他身為戶主，對自己使用的地方要負法律責任。若在通常的情況下戶主應可知道有關使用地方的情況，在法律上他就被當作知情。作為地方的戶主，他應對該地方作出合理謹慎的處理。故此，對該地方的情況而言，一切他應在合理謹慎下可知道的，法律也當他知道。

(5)  第(2)和第(3)項所述的「戶主應代為負責的人」，是指一切戶主准許進入或使用戶主地方的人，包括他的家人、朋友、僱員和入內工作的人，但不包括未獲他或上述的人准許而進入地方的人。”

15.  “Knowledge”, in the context of water seepage cases, be it an actual or constructive one, is not the mere knowledge of one’s neighbour experiencing water seepage problem or the aftermath of water seepage but is in reference to knowledge of the source of water seepage. 

  Liu JA stated (at §7)  the following:-

“7. 最先，知情滲漏的後果並不是知情滲漏根源。在「滋擾」來說，知情是要知道滲漏根源。在法律上，如果某人意圖騷擾鄰居，而確實令到鄰居受到騷擾，那就成為法律上造成「滋擾」，那就是犯了侵權，而他應承擔侵權的法律責任。在滲漏方面看來，如他不知道滲漏的根源出於他自己使用的物業，他便無意圖騷擾鄰居，所以侵權申訴不能成立。鄭先生在不知道滲漏根源之前，在他住宅內使用浴缸，這也必然不是不合理的。＂

10. 丘大律師引述薛利單飛 訴 奧加理閑（譯音）Sedleigh-Denfield v. O'Callaghan, [1940] AC 880 一案作為根據。該案是一宗涉及滋擾的案件：如一方面是知道或應該知道滋擾的來源，而不採取合理的行動消除或停止滋擾，他就可以作當為採納了那項滋擾，要負責其有關破壞的後果。而女皇 訴 疏諾（譯音）R v. Shorrock，[1994] QB 279一案中指出，控方一定要有証據顯示被控訴滋擾的一方知道或者應該知道滋擾的存在或來源。在那宗案件中，被控滋擾一方租出一塊田地作為週末開音樂晚會之用。被控滋擾一方當時並不在場。法官引導陪審團說：被控訴滋擾一方面應該一定要被証明他知道或者應該知道週末音樂晚會可能有滋擾的危險。雖然這是一件刑事案件，但是除非被控訴人知道滋擾來源或存在或者應該知道滋擾的來源或存在，就不能說他是有犯案意圖。但如果法庭信納他有辦法可隨時獲得滋擾的來源或存在的資料，就可推斷他是應該知道滋擾的根源。

11. 在本上訴案中，鄭先生不能說是知道或者應該知道滲漏根源，因為他沒有隨時可以獲得的滲漏根源資料。滲漏是一個相當複雜的問題。就算以吳先生與張女士來說，他們也只是懷疑滲漏源於在鄭先生的單位內，但不能確實。兆龍行在1993年2月3月間的驗查亦沒有最後結果。甚至連仲量行也需要個多月的時間才作出報告。所以，不能說鄭先生有即時可獲得的資料知道滲漏根源。在這案情下，因為滋擾當時還未發現，鄭先生一定不可以說是已經採納了滋擾。當時雙方也不知道滋擾根源是在那一個地方，怎可以說鄭先生是已經採納兆龍行的滋擾，應對吳先生及張女士負責任呢？＂(Emphasis added)

  上訴法庭法官梁紹中：—

“17. 吳先生聲稱有水從上面滲漏入他的單位，造成滋擾。吳先生指滲水原因是鄭先生單位內的喉管有損壞。他曾向鄭先生投訴，並且在數次與鄭先生的通訊及在一九九三年二月二十六日給鄭先生的律師信中，再三知會鄭先生作出修理，但鄭先生獲悉滋擾情況後，不但沒有採取適當行動，進行勘察滲水根源及作出補救，反而仍然任由滲水情況延續。在法律上，這已構成鄭先生採納了存在著的滋擾，因此他須負法律責任賠償。

18. 原審法官對事實有以下裁決：滲水的原因是兆龍行更換牆外污水渠時，「工藝不精」所引致。吳先生於一九九三年三月至四月間曾兩次派人進入鄭先生單位內，進行勘察和測試，追尋滲水根源，鄭先生都沒有阻攔，測試得以順利進行。而鄭先生接獲四月九日送達之仲量行測試報告後，獲悉滲水原因是單位內的去水喉與新裝於牆外之污水渠的接駁處有問題，便在最短時間內，通知兆龍行修理。工程在四月二十一日進行。一天內後就修理妥當，滲水問題從此解決。

19.  從以上的事實，鄭先生不是滲水滋擾的製造者。鄭先生在獲悉滲水的根源後，已採取適當步驟，進行堵塞，防止滋擾繼續漫延。因此在未查出滋擾的原因時，吳先生的投訴並不証明滋擾是出自鄭先生處，更遑論証明鄭先生知道此事。因為雙方的單位同屬一座多層大廈，在鄭先生單位之上，還有其他單位。有可能滲入吳先生單位內的水是從鄭先生單位上面的其他單位滲漏而下。鄭先生接獲投訴的事實，亦不能視為他知道滲水是源於他的單位和有滋擾存在。只有在他獲悉滲水原因後，即四月九日獲悉測試結果後，鄭先生才能採取方法補救。在此之前，吳先生不能只憑單位出現滲水情況，在未有証據可以証明是樓上單位所引致，就歸咎於鄭先生，把滲水責任放在他身上，要他採取適當的措施去查出滲水根源，反証滲水並非源於他的單位。不過，如果當時鄭先生可以循其他即時可獲得的途徑，知道滲水是由他引起的，因此應該對滋擾存在有知悉，那末，他就有責任去消除滋擾和避免不良效果。但是這種情況，在本案並不存在。”

16.  張秀玲’s case, supra, was also followed in Loke Yuen Jean Tak Alice and Wong Kit Ying and others [2019] HKCFI 1895 (see §57)  and Mohan Selvaraj v Grace Ka Man O’Brien [2020] HKCA 698 (see §17)

17.  The principles on nuisance, in the context of water seepage for multi-storey building in Hong Kong, have been extensively reviewed by Marlene Ng J in Loke Yuen Jean Tak Alice, supra at §§49-80.  In terms of the extent of duty to abate nuisance, the leaned judge stated (at §59):-

“…… Thus, the defendant’s duty is a “measured” duty, which is determined by what is fair, just and reasonable as between two neighbours, having regard to all the circumstances, including the extent of the foreseeable risk, the available preventive measures, the cost of such measures and the resources of both parties.  In my view, the above observations in Goldman and Leakey & ors are directed to what a reasonable person in the shoes of the defendant would have done, so the label of nuisance or negligence has no real significance. The common law is concerned in working out the fair and just content/incidence of a neighbour’ s duty rather than affixing a label and inferring the extent of the duty from it.”

18.  It is not for a defendant to find out or identify the correct source of water seepage or to prove that its origin did not come from his property.  See, Hui Ling Ling v Sky Field Development Ltd, HCA 35/2007, unreported (8 May 2012)  at para 23.

Issue (1): Whether the works undertaken by the defendant at D’s Flat (“Restoration Works”)  between the date of the P’s 1^st Report and D’s 1^st Report remedied the water leakage problem?

19.  It is the plaintiff’s case that the Restoration Works were remedial works to stop the water seepage. In gist, the plaintiff’s case is after the Restoration Works, there were no more seepage and an inference should be drawn that the Restoration work have remedied the source of water seepage.

20.  The defendant says the Restoration Works did not involve any remedial work and it was not an attempt to cure the seepage.  The notion of the Restoration Works has remedied the seepage is mere speculation without evidential basis.

21.  P’s Expert comments that:-

(i)  There is evidence of seepage at the master bedroom ceiling and the toilet ceiling at P’s Flat as at the date of inspection (ie February and March 2017);[10]

(ii)  The significant decrease in moisture content at P’s Flat as recorded in D’s Report as opposed to that in P’s 1^st Report could be attributable to D’s Works.[11]

22.  Ms Chan, counsel for the plaintiff submits that given that both experts adopted the same methodology in respect of the scope of inspection and testing methods (ie, visual inspection, infrared scan, electrical conductivity sensing, microwave scan and water sample analysis), the differences in moisture content at P’s Flat as recorded in P’s 1^st Report and D’s 1^st Report could only be attributable to the Restoration Works.  Ms Chan further submits that the peculiar timing and secretive nature of D’s Restoration Works (which was based on the quotation dated 5 January 2017 (“January Quotation”)  but only carried out some 6 months later – shortly after the pre-action letter[12]was issued.  As the Restoration Works was carried out without informing the plaintiff, Ms Chan submits that this can only be explained as the defendant’s attempt to avoid legal liability.

23.  Since it is not disputed that seepage has ceased the latest by the Joint Inspection on 12 September 2017, Ms Chan submits that it could hardly be a coincidence and since it is not the defendant’s case that any works had been undertaken to the external wall of the Building, the most probable cause and the irresistible inference must be that the Restoration Works have remedied the seepage.

The Analysis

24.  Mr Su, gave evidence to the effect that the Restoration Works were carried out as per Fat Lee’s quotation dated 5 January 2017.[13]

25.  The quotation stated that the works included the checking of water pipes (喉管檢查), replacement of water pipes (重新更換)  and making good plastering works (泥水修補).  The quotation states that the water pipes were to be replaced by new pipes in any event.  The quotation was at $50,000 which did not include any repair or replacement of waterproofing membrane.  The receipt[14] was issued for $50,000 only. 

26.  Mr Su confirmed that after opening up the floor tiles, no leakage of water from the water pipes could be seen.[15]

27.  In cross-examination, Mr Su explained that he was a plumber and repairing waterproofing membrane was not his expertise.  Mr Su only opened up the surface area of the flooring to check the embedded water pipes.  He did not deal with the waterproofing membrane which was entrenched in deeper level.

28.  The following are the experts’ observation in respect of the extent of the Restoration Works as set out in the Joint Report:[16]

29.  Both experts agreed the follows findings:-

(1)  認同原告人單位（即35樓B室）內廁所天花曾受滲漏影響；

(2)  認同被告人單位（即36樓B室）內廁所的地磚及外牆排污喉管有曾改動的跡象。

30.  The plaintiff’s Expert’s opinion upon investigation:-

“比較2017年3月及2017年9月的相片紀錄（Appendix I(4)），被告人單位（即36樓B室）內廁所地台磚及企缸地台磚有明顯分別。本人亦發現於2017年2月及2017年9月被告人單位（即36樓B室）的廁所外牆喉管曾經作出大量改動，包括外牆喉管更換新的隔氣、改動原有的喉管及將供水喉安裝於外牆位置。原告人亦有提供通告有關被告人單位於2017年7月12日至7月26日曾經有外牆搭棚工程（Appendix I(3)）。顯示被告人單位（即36樓B室）內廁所地台連企身牆身的防水層（包括企缸底部及周邊牆身）及其相關排污喉管曾進行維修。”

31.  The defendant’s Expert’s comments on the plaintiff’s Expert’s investigation:-

“對比2017年2月與9月的外牆相片，可以看到被告人單位的外牆排污喉管加裝了U型隔熱，但實際工程項目不詳。”

32.  Mr Su is a contractor engaged by the plaintiff.  He does occasional miscellaneous odd job for the plaintiff and he has little interest in the outcome of this action.  The authenticity of the quotation provided for the Restoration Works and the receipts are not challenged.  I accept Mr Su’s evidence that he did not possess the required experience and skill to repair or replace the waterproofing membrane.

33.  Mr Yan, counsel for the defendant submitted that the direct evidence available to the court must prevail over the “inference” drawn from the coincidence of cessation of the water seepage.  In order for water to seep from D’s Flat to P’s Flat, there must be (a)  a leaking source, eg, cracked pipes; and (b)  failure of the waterproofing membrane.  This notion is also accepted by the plaintiff’s Expert.  Mr Yan further submitted that the replacement of the water pipes alone would not have cured the water seepage problem found at P’s flat. 

34.  Mr Yan’s submission must be based on the premises that the leakage water pipe(s)  is not the sole source of water seepage.  Otherwise, if the water pipe(s)  were fixed, the only source of water seepage would then be cured.

35.  I now come to the evidence on the water pipe(s)  leakage from D’s Flat.  There are two facts that are of significance.  Firstly, Mr Su, after opening up the floor and carried out investigation, found there to be no water pipe leakage.  Secondly, had there been water pipe leakage, it would have been detected in the CWT conducted by FEHD and DSKA.  Yet, both test results were inconclusive.  Having considered the evidence on the leakage of water pipes, I find that the evidence is contrary to the case that water pipe leakage was the only source of leakage.

36.  Whilst Ms Chan’s submission is logical and forceful, the evidence before the court does support the case that Mr Su did not carry out remedial work in respect of the waterproofing membrane which was a pre-requisite for remedial work for water seepage.  I therefore find that the Restoration Works have not remedied the alleged water leakage problem.

Issue (2): Whether D’s Flat was the source of the water leakage problem at P’s Flat?

37.  Water source detection and tracing is a technical matter which requires on-site investigation and testing by experts.  Due to the variable form of water movements, the determination of the source of water seepage is a challenging exercise which is helpfully summarised in the Professional Guide by the Hong Kong Institute of Surveyors Building Surveying Division (“HKIS Guide”)[17]:-

“Section 2.0 Understanding Water Seepage in Residential Buildings

2.1 Common Water Seepage Problems

Water seepage can be one of the most difficult building problems to rectify, yet it is very common in buildings, especially older ones that were poorly-designed and built, and those that are inadequately maintained. In Hong Kong, the office responsible for handling public complaints of water seepage in residential units is the Joint Office (JO)  of the Food and Environmental Hygiene Department (FEHD)  and Buildings (BD). The JO received over 25,000 complaints on water seepage in buildings in 2010. Many of these case were referred to surveyors in private practice or consultants for investigation. It is, therefore, important that surveyors be competent in determining the scope and nature of the defects, investigative techniques, available tests, and diagnostic procedures.

Although water in liquid form is familiar to all of us, its source and movement, which cause seepage, are often mysterious. Water may come from ‘natural’ sources like rain and condensation or from water-carrying services like potable water, flush water, or air conditioning chilled water pipes. The movement of water can be horizontal, vertically downwards, or even upwards, as it is aided by gravity or capillary action. Heat and thermal difference can also cause water movement in almost all directions in building. As a result, water movements and ramifications can be difficult to trace. Knowledge of construction technology and the properties of water, together with the use of specialised equipment and diagnostic techniques, are essential for investigating the causes of seepage, especially in complicated cases.” (Emphasis added)

38.  As it is the plaintiff’s case that the defendant should be liable for negligent and/or causing nuisance by allowing water to seep from D’s Flat to P’s Flat from April 2016 onwards, and since there is no presumption in law that the source of water seepage must come from the flat above, the burden is on the plaintiff to prove that D’s flat was the source of water seepage.

39.  FEHD and water leakage experts were engaged to adduced expert reports on liability and quantum.

The FEHD investigation

40.  FEHD conducted its investigation on the alleged water seepage from July to September 2016 (“FEHD Investigation”):-

(1)  Moisture measurement was conducted at P’s Flat on 14 July 2016.  Three (3)  affected areas were identified to have suffered from high moisture content.[18]

(2)  CWT was conducted at D’s Flat on 28 July 2016.  Five (5)  Colour water was used in the CWT to test different drainage points.[19]

(3)  Moisture measurement was conducted at P’s Flat on 2 September 2016[20].

(4)  Plaster sample was collected and sent to laboratory for examination.  The Analytical Report dated 23 September 2016 revealed that no colour dye could be found in the plaster sample.[21]

41.  The result of FEHD Investigation was reported in its letter to the defendant dated 5 October 2016.  It was stated that the source of alleged water seepage could not be confirmed and the FEHD would consider conducting further professional investigation (“…… 因應一宗滲水舉報，本處職員曾於2016年7月28日到 貴單位 [P’s Flat] 進行調查，並在有關排水渠進行色水測試。直到目前，仍未能確定引致滲水的源頭。由於滲水問題持續，本處會考慮進行專業調查。本處會稍後通知你有關的安排及調查進度 ……”). [22]

42.  On 24 November 2016, FEHD notified the defendant that it would appoint DSKA, a professional consultant, to investigate the alleged water seepage.[23]

DSKA’s investigation

43.  DSKA conducted its investigation on the alleged water seepage from March to April 2017 (“DSKA Investigation”):-

(1)  CWT was conducted at D’s Flat on 15 March 2017[24];

(2)  No colour dye was observed at D’s Flat after the CWT by DSKA[25];

(3)  A further monitoring survey was conducted on 6 April 2017.  Again, no colour dye was observed at P’s Flat.[26]

44.  The DSKA report concluded that the following were all unlikely source(s)  of seepage:-

(1)  Leakage of the drainage pipe;

(2)  seepage caused by water infiltration from the floor slab of the bathroom and shower area and the enclosing walls of shower area in the bathroom;

(3)  water supply pipe leakage;

(4)  rainwater penetration from building envelope

45.  The result of DSKA Investigation was reported in FEHD’s letter to the defendant dated 23 May 2017.  It was stated that the source of alleged water seepage still could not be located:-

“因應一宗滲水舉報，本處的合約顧問公司區兆堅建築及工程設計顧問有限公司職員曾都受滲水影響單位 [P’s Flat] 及你的單位 [D’s Flat] 進行第三階段的滲水調查及測試，包括浴室的地台蓄水測試、浴室內淋浴間的地台蓄水測試及其周邊牆壁灑水測試，但仍然無法確滲心水原因 ……”[27]

The experts engaged by the parties

46.  Ms Lau Shan La of Hong Kong Survey Limited (“Ms Lau”)  prepared a first report for the plaintiff dated 13 April 2017 (“P’s 1^st Report”)[28] following two inspections at P’s Flat on 23 February 2017 and 4 March 2017 and a follow-up report dated 13 January 2018 (“P’s 2^nd Report”)[29] mainly to comment on D’s Report as referred to herein below.

47.  Mr Chung Wai Hoi Vincent of Hong Kong Building Inspection & Structural Diagnostic Limited (“Mr Chung”)  prepared a report for the defendant on 9 November 2017[30] (“D’s Report”)  following the Joint Inspections with Ms Lau.

48.  The two experts prepared a joint expert report on 7 August 2019 (“Joint Report”)[31] after the joint site inspections of P’s Flat and D’s Flat on 12 September 2017 and 12 October 2017 respectively (“the Joint Inspections”).

49.  Ms Lau in court agreed to the following:-

(1)  She prepared P’s 1^st Report dated 13 April 2017 based on her inspections held on 23 February 2017 and 4 March 2017 at P’s Flat without carrying out any test at D’s Flat.[32]

(2)  She sent a colleague to attend to the inspections and tests carried out by D’s expert, Mr Chung, on 12 September 2017 and 12 October 2017. 

(3)  P’s 2^nd Report was prepared in response to the expert report prepared by Mr Chung.  No further inspection or tests were carried out for the preparation of P’s 2^nd Report.

(4)  In preparing her expert reports, Ms Lau did not have the benefit of drawings and building plans.  She was not in possession of the figures in relation to the thickness and construction technology of the floor slab (樓板)  separating the two flats in issue.

(5)  In reference to the term “with raised floor construction” in the Inspection Report of the DSKA[33], Ms Lau accepted that such construction technology comprises of (from top to bottom):-

(a)  Floor tiles (top finish at D’s Flat);

(b)  Cement sand screed (under the floor tiles);

(c)  Water pipes with void filled up by soil;

(d)  Waterproofing membrane on top of the floor slab (bottom layer above the floor slab);

(e)  Floor slab.

(6)  Ms Lau further accepted that in order to allow water to seep from D’s Flat to P’s Flat, there are two pre-conditions:-

(a)  Water source (eg, leaking pipes); and

(b)  Failure of waterproofing membrane.

(7)  Ms Lau agrees that the “HKIS Guideline” supra is a relevant and applicable guideline for practitioners in investigating the source of water seepage.

The external wall as a possible source of seepage

50.  In drawing the conclusion that water seeped from D’s Flat to P’s Flat, Ms Lau primarily relied on the result of the Electrical conductivity sensing and microwave scan.[34]

51.  Ms Lau accepted that the technique of electrical conductivity sensing was used to detect the moisture contents of the ceiling surface.  The result showed the individual readings at different check points (the “check point chart”)[35].  It ranged from 1 to 99.9.  The higher the figure, the higher the moisture level.  There were in total 39 check points.  A wardrobe was placed inside the room and no readings could be made at the points where the wardrobe was placed.  The wardrobe blocked access to the reading of 9 check points.  Out of the 39 check points, there were 6 that had a reading over 90.

52.  The readings of 97.9, 99.9 and 99.9 were obtained at check points 2, 3 and 11 which were all closer to the two external walls.  From these readings, the external walls were possibly a source of water seepage.  Ms Lau nevertheless excluded external wall as a possible source on the basis that there was no rainfall at the time of inspection.

53.  The other 3 reading over 90 were readings of 99.99, 99.99 and 99.99 obtained at check points 23, 31, 39 which were closer to the bathroom.  The wardrobe was placed at the corner of the room between the external wall and the bathroom.  From the diagram, one cannot rule out the fact the wardrobe may have covered a possible pathway of water flow from the external wall to the 3 high readings near the bathroom.  Photographs in P’s 2^nd Report show that after the wardrobe was removed, wet stains could be seen on the original spot blocked by the then dismantled wardrobe.[36]

54.  Mr Chung during cross-examination commented on the readings of the test conducted by Ms Lau.  Mr Chung, by comparing the readings of moisture contents at P’s Flat on 23 February 2017[37] and 4 March 2017[38], found that the latter readings were generally lower than the former.  Mr Chung opined that this finding was inconsistent with the theory that D’s Flat was the continuous source of water seepage.  Otherwise, the moisture reading should have remained in more or less the same level.  Mr Chung was of the view that the findings in fact supported the theory that the source of water seepage in fact was coming from the external wall.  This was because there was no significant rainfall between 23 February 2017 and 4 March 2017 and water that seeped into D’s Flat through the external wall before 23 February 2017 dried up gradually from 23 February 2017 to 4 March 2017 causing the moisture contents at P’s Flat to decrease. 

55.  Having considered the check point chart and the experts’ evidence, I am satisfied that from the positions of the 6 highest reading check points and the position of the wardrobe covering vital check points from the external wall to the bathroom, the external walls could have been a source of water seepage.  I accept Mr Chung’s opinion that had D’s Flat been the continuous source of water seepage, one would have expected the moisture contents at P’s Flat on 23 February 2017[39] and 4 March 2017[40] to be in the similar range of reading as opposed to revealing a downward trend.  The general lower reading of moisture contents on 4 March 2017 does support the theory of source of water seepage probably originated from the external wall rather than from D’s Flat.

56.  Microwave scan was used by Ms Lau to detect the moisture contents at specific depths, naming 30 mm, 70 mm and 110 mm, measured from the ceiling surface.  The result was presented by way of graphical images showing the moisture distribution[41].

57.  Similar to the result of the electrical conductivity sensing test, there were two areas in the ceiling of master bedroom of P’s Flat being identified with high moisture contents: (a)  near the bathroom (ie, big circle area); and (b)  near the air conditioner/external wall (ie, small circle area).[42]

58.  The moisture contents at 30 mm, 70 mm and 110 mm were all high in the big circle area and the small circle area.  Ms Lau explained that the depth of 110 mm is close to the floor level of the D’s Flat.  However, Mr. Yan submitted that it does not prove that water actually came from D’s Flat as Ms Lau admitted that she did not know the thickness of the floor slab, so, whether 110 mm is close enough to the waterproof membrane is uncertain; and Ms Lau also accepted that the result of the two circles can be explained by the existence of a horizontal crack at, say the depth of 110  mm, 120 mm or 150 mm, within the floor slab.  Mr Yan submits that even ignoring the effect of capillary action, at most the tests could only show that water moved downwards from 110 mm depth to the ceiling surface; it could not prove that water seeped from D’s Flat to P’s Flat.

59.  Mr Yan further submits that the small circle area is closer to the external wall.  This indicated that the external wall could be the source of water seepage.  The theory of Ms Lau that water seeped from the big circle area to the small circle area works perfectly in a reverse manner, ie, water seeped from the small circle area to the big circle area.

60.  As no microwave scanning was conducted at the ceiling area that was blocked by the wardrobe.  This may also have affected the proper analysis on the source of water seepage.

No defect on the external wall?

61.  Ms Lau reported that (1)  No defect was found on the external wall based on her visual inspection; and (2)  There was no rainfall found between 23 February 2017 and 3 March 2017.[43]

62.  Ms Lau carried out visual inspection of the external walls.  She admitted in cross-examination that some defects on the external wall could not be identified by visual inspection.  Such as spalling inside concrete, hollow block (空心磚)  and hairline crack.  Ms Lau accepts that these defects, if existed could provide a pathway to water.  Nevertheless, Ms Lau did not carry out hammer tapping test to the external wall tiles immediately outside the window to see if there were hollow block there (空心磚). 

63.  Mr Chung identified white colour water stain on the external wall, which Mr Chung opined was the indication that water seeped through the cracks/holes on the external wall and the substance that the water carries left there and underwent some chemical reactions over the time (風化作用).[44]

64.  Ms Lau accepted that water pond/colour dye test needed to be carried out in two different days because time should be allowed for dye water to seep through the concrete slab before it can be observed in the lower flat.  Ms Lau said she would normally allow 21 days.

65.  There was rainfall recorded within 21 days before Ms Lau’s first inspection on 23 February 2017, which included 2, 4, 5, 6, 8, 9, 19, 20, 21 and 22 February 2017.  Mr Chung opines that there is a strong indication that the water seepage problem was caused by external weather as there was recorded rainfall before 23 February 2017 whilst there was no recorded rainfall between 23 February 2017 to 4 March 2017.  Ms Lau admitted that she did not know the details of raining condition on those days.  I accept Mr Yan’s submission that the record does not show the rainfall concentration in Kennedy Town and therefore does not preclude rainfall to be a source of water seepage through the external wall and air-conditioning platform of the Building[45]

66.  Further, there were air-conditioners mounted on the external wall and the air-conditioners are equipped with water discharging hoses.[46] Vertical water tracks were visible at both sides of air-conditioning platform.[47]  There are also water pipes fixed onto the external wall.  These are all potential source for water seepage through cracks of the external wall.

67.  Ms Chan submits that the external wall has been expressly excluded as a possible source of seepage in the DSKA draft report.[48] So far as the external wall was concerned, the DSKA report’s main focus was on rainwater as a possible source of seepage.  The report referred to rainfall from 15 March 2017 and 6 April 2017 and concluded that rainwater penetration from building envelope is unlikely.  The issue of possible water source from air conditioning water discharging hoses at the external wall was not considered.  Neither were the vertical water tracks and the external wall water stain marks referred to.  The DSKA report has not expressly excluded the external wall as a possible source of seepage.

68.  I accordingly find that the evidence before me is insufficient to exclude the external wall as a probable source of water seepage.

The fluorescent colour dye found on the ceiling of P’s Flat

69.  At Ms Lau’s first inspection on 23 February 2017, fluorescent material was found on the ceiling of the master bedroom at P’s Flat.[49]

70.  Ms Chan submitted that in the absence of evidence that any other colour dye test was being carried out during the period between the FEHD Inspections and the first inspection of P’s Expert, an irresistible (if not the only)  inference should be drawn that those fluorescent material was a result of the colour dye test conducted by FEHD which was only discovered after FEHD’s final inspection on 2 September 2016.  Ms Chan further submitted that this is a firm proof that D’s Flat must be the source of seepage.

71.  In cross examination, Mr Chung accepted that such fluorescent material is likely to be the result of a colour dye test.  He also confirmed that he had knowledge that FEHD had conducted a colour dye test prior to P’s Expert’s first inspection.  Mr Chung also admitted that it is possible for fluorescent material to take more than a month to show.

72.  Ms Chan’s submission is based on fluorescent colour used at FEHD’s CWT.  It is therefore necessary to visit evidence in regard to the CWT carried out by FEHD on 28 July 2016.  The record of CWT to drainage inlets[50] shows that the colours used in the test were as follows:-

(1)  “OII - Orange II” for the water closet;

(2)  “BS - Brilliant Scarlet 4R” for the basin;

(3)  “AR - Sulforhodamine B” for the washing machine;

(4)  “WT -Aquerouos Rhodamine WT” for the shower tray;

(5)  “RB Rhodamine B” for the sink. 

73.  Neither “EY - Eosin Yellowish” nor “FS - Fluorescein Sodium” were used.  Mr Yan submits that the record shows that no fluorescent colour dye was used in the colour dye test carried out on 26 July 2016 and the fluorescent colour dye shown on the photos could not have been the colour dye used by FEHD.

74.  When Mr Chung answered questions in regard to the fluorescent colour dye, he was not shown the record of colour water test.  In re-examination, Mr Chung clarified that he did not know what colour was used by FEHD in that test.  It is not disputed that some of the affected areas were masked over by adhesive tapes.  Mr Chung opines that some construction materials may also contain such fluorescent colour dye and the ceiling may have been contaminated.

75.  The record of CWT shows that the colours used were mainly reddish or orange, which do not appear to contain fluorescent.  This is against the notion that the fluorescent colour dye found on the ceiling of P’s Flat had traces of the colour dye water used by EFHD in CWT.  In fact, Ms Lau does not suggest that the fluorescent material found on the ceiling was from the colour dye used by EFHD in the CWT.  Neither Ms Lau nor Ms Chan suggest any of the 5 colours used by FEHD contained fluorescent.  Ms Chan’s submission is therefore not supported by expert evidence and is contradicted by the record of CWT by FEHD.  Accordingly, I find the photographs of the fluorescent colour dye in P’s Flat is of low probative value and I do not accept it as proof of source of seepage from D’s Flat.

76.  In light of my finding that 1)  the Restoration Work did not remedy the water seepage problem; 2)  seepage from external wall cannot be ruled out as a source of water seepage; and 3)  the tests conducted by FEHD and DSKA were inconclusive; I find that the plaintiff has failed in discharging its duty in proving that D’s Flat was the source of water seepage.

Issue (3)  – Assuming that the source of water seepage was D’s Flat, whether the defendant is liable under the DMC, for nuisance and/or negligence

77.  Clause 5.1.6 of the DMC which provides that:-

“Each Owner shall be responsible for and shall indemnify the Manager all other Owners and occupiers against all actions proceedings claims and demands whatsoever arising out of or in respect of any loss or damage to any person or property caused by or as a result of the act or negligence of such Owner or any occupier of any part of the Building owned by him or any person using such part of the Building with his consent expressed or implied or by or through or in any way owing to the overflow of water therefrom.”

78.  Clause 5.1.10 of the DMC which provides that:-

“Each Owner shall notwithstanding the obligations of the Manager to maintain the entire Building keep the part of the Building in respect of which he is entitled to exclusive possession in good repair and condition and shall maintain the same to the satisfaction of the Manager and in a manner so as to avoid any loss damage nuisance or annoyance to the owners or occupiers of any other part or parts of the Building. The expenses of keeping in good and tenantable repair and condition the interior of each Unit and all the fixtures and fittings and all plumbing therein or appertaining thereto and all the windows and doors thereof shall be borne by such Owner who is entitled to the sole and exclusive use occupation and enjoyment thereof.”

79.  Had I found Issues 1 and 2 in favour of the plaintiff, the following would have been my findings on Issue 3.

80.  The factual disputes as to when the plaintiff made the water seepage report to the defendant and whether the defendant’s mother had agreed to remedy the problem were factual disputes as to when the plaintiff was made aware of the water seepage problem of D’s flat.  As FEHD was engaged and investigations results were either inconclusive or pending from DSAK, the defendant could not have known or ought to have known the source of water seepage was from D’s Flat when even the professional from EFHD were unable to draw such conclusion after tests and investigation. 

81.  The factual disputes before the delivery of P’s 1^st Report are disputes not relevant to the core issue before the court, which is when the defendant knew or ought to have known the source of water seepage.

82.  Ms Chan submitted that the defendant should not be allowed to rely on not having knowledge of the source of water as a defence as it is not pleaded in the Defence.  The issue of whether the defendant possessed the requisite knowledge of the source of seepage is a question of mixed law and fact.  “Knowledge” is the requisite element in establishing nuisance and negligence for which the plaintiff bears the burden of proof.  The Statement of Claim has not specifically pleaded that the defendant had the requisite knowledge either.  That said, both parties should nevertheless be allowed to call evidence and examine on this issue for the determination of Issue 3 as defined and agreed by the parties.

83.  The factual issues before the delivery of P’s 1^st Report would nevertheless be relevant to the issue of whether the defendant had acted promptly, reasonably and been cooperative in the investigation of the source of seepage.  I find the following facts material to this issue.  The defendant allowed FEHD to carry out tests from his flat.  He engaged contractors to quote and later carry out Restoration Works.  In the small claims action, the defendant in his defence stated “…… 我方已在積極配合屋宇署及食環署的調查工作並曾承諾如果找到滲水源頭為被投訴單位，我方願意即時作出維修。唯滲漏調查需時以及在沒有找到問題根源前無法展開 [任] 何工程 ……”. [51] 

84.  The defendant has also undertaken to cooperate in finding the source of seepage and he responded to the plaintiff solicitor’s demand letter.  He has taken proactive steps to follow up matters with FEHD on the progress of DSKA’s investigation results. In my judgment, the chronology of events shows that the defendant has acted promptly, reasonably and have been cooperative in finding the source of seepage.

85.  Had I accepted P’s expert report and found D’s flat to be the source of the water seepage, I would have found the time when the defendant received D’s expert’s report would constitute actual knowledge of D’s flat being the source of water seepage. 

86.  P’s expert report was dated 13 April 2017 but was not sent to the defendant until 29 June 2017 and received by the defendant in early July 2017.  Restoration Works were carried out in D’ flat from 12-26 July 2017.  The defendant subsequently sent a holding letter to the plaintiff on 13 July 2017[52] and in the meantime the defendant requested the Joint Officer to provide a copy of the test report.[53]  By 12 September 2017, the seepage has ceased.  It is not disputed that after the Restoration Works there were no more water seepage.  Damages claimed are in respect of loss and damages before July 2017 and I would have found the defendant not liable for the damages claimed.

Issue (4): If the defendant is liable, what is the appropriate quantum

87.  Had I found the defendant liable, the following would have been my assessment for damages.

88.  Since the seepage has ceased, the plaintiff no longer seeks any injunctive reliefs.  The plaintiff also no longer seeks damages for nuisance and inconvenience caused.

Costs of remedial work at P’s Flat by Artist Company $17,800

89.  P’s expert agrees that D’s expert’s figures are also within market rate.  I will allow $16,600 under this head.

Costs of HKSL investigation $27,000

90.  Pre-action surveyor fee incurred by the plaintiff for investigating into the source of seepage was at $17,000. This should be allowed. 

91.  The remainder of $10,000 are expert disbursement which is a matter for taxation.

Loss of Rent 1 July to 3 January 2018 (6 months at $18,500 per month)  at $111,000

92.  The plaintiff signed a tenancy with the existing tenant Mr Lai to renew the tenancy from 1 June 2017 to 31 May 2019 at $18,500 per month, for a period of 24 months.  In May 2017, Mr Lau gave notice to terminate the tenancy on the basis that the water seepage problem has become intolerable. 

93.  The plaintiff subsequently rented out the premises at a monthly rent of $21,000 on 3 January 2018. 

94.  But for the water leakage, Mr Lau would not have moved out.  The plaintiff should be compensated for loss of income for the loss of her tenant.  That said, the plaintiff is under a duty to mitigate her loss.  There is no evidence as to why it took 8 months for her to find a new tenant.  Given the fact that renovation work to P’s Flat had completed by the end of July 2017, I would expect a competent estate agent and reasonable landlord to be able to find a new tenant within 2 months by the end of September 2011. 

95.  Further, but for Mr Lau’s moving out, the plaintiff would not have rented out the premises at a higher rental in January 2018.  The extra rental gained should be taken into account to put the plaintiff in the position as if the tort has not been committed.

96.  I would therefore allow loss of rental as follows:-

[$18,500 x (24 – (8-4)  month)] – ($21,000 x 16 months)  = $34,000

Commission to estate agent at $8,400

97.  This item is allowed at $8,400.

Replacement of wardrobe at $12,800

98.  The plaintiff has obtained a quotation for the replacement of the wardrobe.  However, by the date of trial, the wardrobe is yet to be replaced.  Since the new tenant has already moved in since January 2018, there is no evidence that the plaintiff intend to replace the wardrobe with a new one.  I would have allowed the costs of the damaged wardrobe only. 

99.  The damaged wardrobe was used for 7 years and the photographs showed that the wardrobe has the usual wear and tear.  There is no evidence of how much the wardrobe costs at the time of purchase.  Doing the best in the circumstances I would have awarded $3,000.

Compensation paid to Mr Lai

100.  The plaintiff claims loss under this head as she had to compensate Mr Lai in respect of the termination of the Renewed Tenancy Agreement in the sum of $21,045.00.

101.  There is no documentary support under this head.  The plaintiff did not give particulars for the claim under this head.  By the time the tenant gave her notice of termination, the plaintiff has already commenced small claim proceedings and have engaged the expert.  She clearly had litigation in mind, hence, it is surprising that the plaintiff has no documentary support for this claim.  I am neither persuaded that claim under this head is reasonable nor satisfied that the evidence substantiates such claim. 

Summary

102.  Had I found the defendant liable, I would have allowed damages at:-

$16,600 + $17,000 + $34,000 + $8,400+ $3,000 = $79,000 plus interest.

103.  The plaintiff has failed on balance of probabilities in establishing liability against the defendant and I make an order as follows.

Order

(1)  The plaintiff’s claim be dismissed.

(2)  The plaintiff shall pay the defendant’s costs of this action with certificate for counsel to be taxed if not agreed.

104.  I thank both counsel for their assistance.