Harmony Trump Ltd. v. Kwok Leung Po Chang

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 9 OF 2001

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J U D G M E N T

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1. This is a claim for damages arising out of an allegation that water has leaked into the plaintiff's flat from the defendant's adjoining flat. The claim is based on negligence, alternatively nuisance and also a breach of the deed of mutual covenant (DMC). The damages claimed relate to the cost of repairs to the drawing room of the plaintiff's flat in the sum of $69,700 and there is also a claim for general damages for discomfort and inconvenience caused by the repair works.

2. This has been a four day trial where each party has called a chartered surveyor and briefed counsel. Costs will therefore be out of all proportion to the amount of the claim itself and, having regard to the incidence of taxation, both winner and loser will, I fear, be out of pocket.

3. The plaintiff's flat is A1, 18th Floor, Summit Court, 144-158 Tin Hau Temple Road. It is the home of Mr and Mrs Yeung Pui-wah, Mr Yeung being a director of the plaintiff company, and of their family. The defendant's property is the adjoining flat, A2. The defendant and his wife, both of whom are about 80 years old, live there together with their domestic helper, Miss Hermelinda Dacquel, who was called to give evidence for the defendant, she having been employed at the premises for the past 12 years or so.

4. There is a helpful floor plan of both properties, which is at page 53, bundle C. The important feature to observe is that a party wall separates the two drawing rooms, as it does the two balconies immediately off those rooms. There are photographs of the front elevation of the building at C102, which comprises a high quality block of residential flats built over 20 years ago.

5. It is helpful to embark on this judgment by examining the principal issues which call for a decision by me. The most fundamental of these is the requirement that the plaintiff must show that the damage caused to its drawing room parquet floor, skirting board and marble flooring strip was the result of an escape of water from the defendant's flat into its flat, and that this was the result of negligence, which in terms of this case means that this escape of water was caused by some fault on the part of the defendant which I will need to examine more closely in due course.

6. If that is shown on a balance of probabilities, then the question of damages will need to be addressed. There are two heads of damage.

7. Firstly, the cost of repairs caused by the water damage, which should present little difficulty, save for the issue of whether it was reasonable of the plaintiff to have replaced half of the parquet in the drawing room, or whether it was only necessary to replace a much smaller part of the damaged floor.

8. The other matter concerns a claim for general damages for discomfort and inconvenience caused to the occupants whilst the repairs were being carried out. This raises the interesting point of whether the plaintiff, who is a limited company, can claim these damages in respect of the occupants of the property that it owns, or whether at least Mr Yeung, as one of the occupants, should also have been made a plaintiff to sue for this head of damage for himself and for his family. The amount sought for discomfort and inconvenience is in the vicinity of $20,000.

9. I now turn to the evidence. Mrs Yeung Ku Chui-ling, being the lady of the house at Flat A1, gave evidence as to the state of the premises which had been acquired in early 1998 by her husband and herself through the plaintiff company. Her witness statement starts at page 51.

10. The property was extensively and expensively refurbished at a cost of over $1.3 million, including the laying of a new parquet floor. A strip of marble was laid just inside the balcony door in the main reception room and the balcony itself was finished with a marble floor and marble walls. This work took about two months to complete and the family went to live there in May 1998.

11. During 1999 she noticed water stains appearing on the balcony marble party wall with Flat A2. This would occur after wet weather and the water stains would dry out and disappear during dry weather. There is no claim for any damage to the balcony, although there has been much evidence directed to the causes of such staining to which I must make some further reference presently.

12. Gradually during the course of 1999, she noticed that some water stains were appearing on the parquet floor of the drawing room. This was observed to have got much worse following the passage of Typhoon Sam on 22 August 1999, when the No. 8 signal was hoisted and when there was much rain and high winds. The water stains spread and the timber floor began to bulge.

13. Matters became worse following the passage of Typhoon York on 16 September. This was an unusually severe storm, the worst since Typhoon Ellen in 1983, and it required the Observatory to raise the No. 10 signal. At this time the water stains had become even more widespread and the bulging extended to part of the marble slab just inside the balcony door. There are photographs which show this damage at pages 55 to 60. The staining, as well as the lifting and bulging of wood and marble is well illustrated in these photographs.

14. Mr and Mrs Yeung felt that the problem had by now become so serious and worrying that they decided to call Mr Kwong, their builder, to try and establish the cause of the problem. He attended the following day, 17 September, and suspected that the water was coming from the adjoining flat, A2. Mrs Yeung and Mr Kwong decided to call on the owners of the next-door property. They were not in at the time but their domestic helper, Miss Dacquel, let them in.

15. They found that the wall-to-wall carpet in the reception room of this flat was soaking wet and that dehumidifiers were on to try and draw the wetness from the carpet. Both Mrs Yeung and Mr Kwong have described how the water in the carpet came through their stocking feet. Although they did not walk over the whole of the carpeted floor, their evidence, which I accept, is that the wettest part of the carpet was in the centre and close to the balcony.

16. Mr Kwong had come with a camera. He then proceeded to the balcony to see whether he could find any possible source for the water leaks into Flat A1. The photographs that he took are at C66 and 67, which show that the paintwork and fabric of the party wall has been badly maintained. He also noticed and photographed a number of plants kept on the balcony floor. He has expressed the view that rainwater could have permeated through this badly maintained wall into the other side, hence the water stains appearing on the marble of the plaintiff's balcony wall.

17. He was also concerned that leaves from the plants could have blocked the drain on the floor of the defendant's balcony, which may have caused an accumulation of surface water, which in turn could have caused an ingress of water into the plaintiff's property. This was further considered by the parties' expert witnesses, whose evidence I will come to presently.

18. The defendant and his wife did not give evidence, although this has been their home for at least 12 years. Both are elderly people in their 80s and the lady is gravely ill. Consequently their domestic servant, Miss Dacquel, who has looked after them at Summit Court for 12 years, gave evidence.

19. She had let Mrs Yeung and Mr Kwong into the flat on 17 September in the absence of her employers. I had thought that this may have been rather high-handed behaviour on the part of Mrs Yeung to march into the flat with her builder in the absence of the householders and start taking photographs. But perhaps one can well understand her anxiety in a worsening situation, with an increase of water damage to her property. Clearly, she wished to deal with the matter as soon as possible and with Mr Kwong present, she needed to take advantage of having him available and getting his views and advice as soon as possible.

20. Miss Dacquel's evidence is that there has never been any water damage in her employers' flat during the 12 years that she has lived there, nor has there been any complaint from neighbours above, below or to the side of a possible escape of water from their flat to any other part of the building. There has never been any sign of dampness in this property.

21. That having been said, the really significant part of her evidence relates to the events surrounding Typhoon Sam in August and Typhoon York in September. I take Typhoon Sam first.

22. The sliding balcony doors at Flat A2 have a metal roller shutter which can be rolled down to act as a windbreak in bad weather. When the arrival of the typhoon was imminent, Miss Dacquel, in securing the premises, tried to roll down these shutters but there was some sort of defect there which prevented her from doing so. At the height of this typhoon the wind was so strong that it shattered a pane of glass in the sliding balcony door, exposing the reception room to wind and rain, with the result that a lot of rain came into the flat. Page C69 contains photographs showing the aftermath of the typhoon.

23. To compound matters, Miss Dacquel has told me that there was a delay of four or five days before a glazier could come to replace the glass. This meant that the property was not weatherproof during this period, when further substantial quantities of rain fell on Hong Kong.

24. The next part of Miss Dacquel's evidence is particularly significant. It relates to the events surrounding Typhoon York. Miss Dacquel's employers are keen to have a circulation of fresh air in the flat, and so windows and the sliding balcony doors are frequently left open.

25. Now, as this typhoon approached her employer instructed her to leave the balcony door open, by leaving a 1 foot gap in the centre. There were two reasons for this. Firstly, the wish for fresh air, but more particularly, having had the bad experience of a shattered glass door during the previous typhoon, the employer considered that an open gap in the door would alleviate wind pressure on the glass panes, allowing the wind to pass through the gap. On this occasion she was able to roll down the metal shutter and bolt it to the ground, which might have afforded some protection from the weather.

26. It seems to me that the last thing one would contemplate doing with the approach of a big typhoon such as York, is to leave one's sliding balcony doors open. The expected happened. Miss Dacquel was woken during the night by the sheer force and noise of wind and rain. She went to the reception room to hear the typhoon batter the metal shutter which, despite its retaining bolt, was riding up by an inch or two at the bottom, letting in the driving rain.

27. She has said that when she first inspected the carpet during the course of the night, it was not particularly wet, and so she left the sliding door open. When she came to look at it again at about 6 in the morning it was wet, but this was confined to an area of about 3 feet across and a few feet into the room at the point where the door had been left open.

28. Where her evidence differs from that of Mrs Yeung and Mr Kwong as to the area and degree of wetness, I have no doubt that they are right and that she has understated the situation. This was a big typhoon with powerful winds and torrential sheeting rain. I am satisfied that great quantities of rain water had got into the reception room and onto the carpet, giving it a thorough soaking. I find that a widespread area was wet, emanating from the area immediately opposite the open door.

29. This, therefore, is the state of the eyewitness evidence. I now come to what the two surveyors have said. Mr Mak, for the plaintiff, a very experienced chartered surveyor, well qualified to speak on matters such as these, his report is at pages 46 to 72 of bundle C, and Mr Remus Wong, for the defendants, also a chartered surveyor, although less experienced in the profession, but also well able to express an opinion on water damage such as this (see pages C78 to 81).

30. This case is unusual and unsatisfactory because neither expert has had the opportunity to visit the other party's premises, and so both are expressing a one-sided view from their side of the fence as it were. Mr Mak inspected the plaintiff's flat on 27 October 1999, a month and a half after Typhoon York, and Mr Wong saw the defendant's flat in April 2000, after things had really had a chance to dry out over the dry autumn and winter seasons.

31. This state of affairs came about because once Mrs Yeung had pointed the finger of guilt at the defendant's property as the source of the water leak, the parties stopped talking, save for some unconstructive correspondence between their respective solicitors. The fact that the defendants have not been afforded the opportunity of inspecting the damage to the plaintiff's flat before the repairs were carried out is cause for strong complaint by Mr Khaw, who appears for the defendants.

32. Mr Mak's opinion is that water has leaked from the defendant's flat and through the party wall into the plaintiff's flat. He has prepared the floor plan at page C53 and marked there the area which has been affected by water with a series of arrows. This is all self-explanatory from the plan itself.

33. He was carefully cross-examined by Mr Khaw with a view to demonstrating that water could have come into the plaintiff's flat from sources other than the defendant's property. The principal propositions were that water could have got in behind the marble slabs covering the balcony party wall from the front elevation of the building by entering from the exposed gap between the marble slab and the fabric of the building. Mr Khaw also proposed that water could have got in via the edges round the light fitting on the marble wall (see page C68), or through the marble itself, which is a porous material and gradually moved into the flat through the glass doors. Whilst Mr Mak was willing to accept that water could have got in behind the marble in the way suggested by Mr Khaw, he did not accept that water could have got into the flat in this way and caused this sort of damage.

34. Mr Khaw also drew attention to rainwater on the floor of the balcony and that this might have seeped through the marble and got under the frame of the sliding door. Mr Mak would not have this, pointing out that the reception room floor level is higher than the balcony floor and that that water could not have got in by these means.

35. He also would not accept that rainwater could have entered through the sliding doors. He drew attention to the fact that the upright posts at the side of the frame of the sliding doors were fixed to the wall and, therefore, watertight. In any event, the doors themselves were in good condition, having been checked during the renovation works done by Mr Kwong in 1998. In any event, I accept Mrs Yeung's evidence that these doors did not leak.

36. Mr Mak, I thought, gave rather graphic evidence when he suggested that the water contained in the defendant's wet fitted carpet could have "migrated" sideways under the party wall and into the plaintiff's flat.

37. Mr Wong, the defendant's surveyor, inspected their flat in April 2000 and found it to be in good order. There had been no sign of damage, although it is right to say that their insurer had paid them $40,000 to put right damage caused by Typhoon York, and over $5,000 for damage caused by Typhoon Sam.

38. Mr Wong also checked the balcony and, in particular, the drain which he tested and found to be in perfect working order. He could find no source for an escape of water from the defendant's flat into the plaintiff's property. He was unable to examine the state of the dividing wall because there are built-in cabinets there which make access to the wall difficult. He has produced photographs showing the state of the defendant's flat to be in very good decorative order (see pages C90 and 91).

39. Having had regard to all of this evidence, I am satisfied that on a balance of probabilities the cause of this damage to the plaintiff's flat - and there can be no doubt that that flat had been damaged - has been an escape of water from the defendant's reception room at the corner close to the balcony sliding doors and under the wall and into the plaintiff's reception room at the points shown on the floor plan and the photographs at pages C55 and 60.

40. The major damage has been caused by the rainwater entering the defendant's flat during the course of Typhoon Sam, when the glass pane shattered and when water must have poured onto the carpet. This was compounded by the fact that a glazier could not replace the glass frame for a number of days. Even though the domestic helper was able to roll down the shutter over this period of days, she having been unable to do that before the glass shattered, these shutters could never be a substitute for an air and watertight glass door.

41. So I am satisfied that the problem started in a serious way following that typhoon, with the denouement on 16 and 17 September, when Typhoon York hit Hong Kong. The fault really lies with Miss Dacquel's employer, who instructed her to leave the sliding doors opening. Nobody would sensibly give such an instruction. It should not have been given, particularly as the shutter was not working. With the shutter down, the risk of the glass shattering again would have been minimal. This, I am afraid, was an act of folly. The carpet was soaked as a result and I am sure that Mr Mak is right; the water from the soaked carpet migrated through the wall, causing the water damage to get even worse.

42. The defendants have, inter alia, pleaded Act of God, having regard to the typhoons which caused the initial invasion of water into the defendants' flat. This plea must fail. The law is summarised in Charlesworth & Percy, 9th Edition, 12-33 and 12-34, page 903 (see also Born Chief Company v Tsai George [1996] 2 HKC 282). Typhoons are a well-known and expected occurrence during Hong Kong summers. People must take proper precautions to guard against their effects.

43. On 16 September the opposite was done by deliberately leaving the sliding doors open; and something temporary could and should have been in August before the glazier replaced the broken pane. Plastic sheeting could have been put up. Mr Kwong refers to this in his witness statement. The roller shutter is a device against wind and is not watertight. This by itself was an insufficient measure.

44. There is no doubt that these findings of fact demonstrate default on the part of the defendant, so that the claim in negligence and nuisance must succeed. There is also a breach of the DMC, its material terms being clause 9c which is as follows:

"Not to use his part of the building for any illegal, unlawful or immoral purpose, nor to permit anything therein or thereupon which may create unnecessary noise, or may become a nuisance, annoyance, damage or inconvenience to the other occupiers of the building."

45. The terms of this clause are wide enough, in my judgment, to embrace the escape of water in the way that I have found to have occurred here. That being so, the plaintiffs have established liability against the defendants as pleaded in the amended statement of claim.

46. I now turn to damages. The repair costs come to $69,700. This of course includes replacing the parquet well beyond the immediate stained and bulging areas. I accept Mr Kwong's evidence that there was a knock-on effect as the wooden blocks became distorted up to the centre line of the room. The entire cost of these repairs are, in my judgment, perfectly reasonable and should be allowed in full. I will therefore give judgment for the entire sum of $69,700 under this head of damage.

47. The more interesting dispute relates to the claim for inconvenience and discomfort. This is a claim by the plaintiff company for the occupants who, of course, are not plaintiffs.

48. Mr Paul Lam, in the course of a most helpful and comprehensive final speech, submits that the courts take a pragmatic approach in awarding damages. He has instanced the holiday cases in England, such as Jarvis v Swan Tours Limited (1973) 1 QB 233, where a father successfully sued for himself and for his family for a spoilt holiday.

49. He has drawn attention to Tech Pearl Printing Limited v Cheung Ting-chu [1999] HKC Lexis 1360, where Master Tim Woolley awarded damages for disturbance to a company, as plaintiffs, who had suffered intimidation by triad debt collectors.

50. Mr Khaw responds by saying that this was disturbance to the plaintiff company in its business operations, and not on behalf of others. I am bound to say that I prefer Mr Khaw's analysis. The plaintiff's company in this case has not suffered discomfort and inconvenience qua company. This has been suffered by the occupants of the plaintiff's property.

51. Mr Yeung should have been made a plaintiff in order to bring the claim under this head for himself and for his family and dependants. Had even a late application been made to me to add him as 2nd plaintiff, I would, in all probability, have allowed that to happen.

52. For these reasons, therefore, I refuse to make any award for discomfort and inconvenience. Had I been able to make such an award under this head, I would have awarded $10,000 for this disturbance, where workmen were on the premises for two weeks.

53. Accordingly, there must be judgment to the plaintiff in the sum of $69,700 with interest thereon at half the judgment rate from the date of the writ until today and thereafter at the judgment rate from today until payment.

54. Costs, I would have thought, must follow the event and

therefore the costs will be to the plaintiff and there will also be certificate for counsel.