YIU MEI LEE v. CB RICHARD ELLIS LTD

HCSA 43/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 43 OF 2012

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM
NO. 38634 OF 2011)

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D E C I S I O N

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1. This is an application by the applicant for leave to appeal against a decision given on 31 July 2012 by an adjudicator of the Small Claims Tribunal. The applicant’s claim was for damage to be paid by the respondent for overflowing of dirty water from the sewage of the building.

2. The defendant was the management company.  Under the Deed of Mutual Covenant, the defendant was responsible to do all acts and things as may, in its opinion, be necessary or requisite for the proper management and maintenance of the building and the land, and it had the specific powers and duties under clause B1(10) to keep all the common sewers, drains, water courses and pipes free and clear from obstructions and (11) to keep all the common facilities in good and working order.

3. At the trial, the defendant called a building inspector/supervisor who testified that the defendant had regularly inspected the drains and also testified that the possible reason for the blockage which resulted in the damage to the applicant’s premises was likely to be because of the dumping of debris and rubbish by decoration workers working upstairs.  This evidence was accepted by the adjudicating officer.

4. The adjudicating officer, in coming to a conclusion on the question of liability, placed the burden of proof on the applicant.  However, under the Deed of Mutual Covenant, the defendant had the duty to maintain the drains and sewers and so on and the overflowing of waste water into the applicant’s premises was something that amounted to a set of circumstances for which the respondent should rebut.  Hence the burden of proof should be on the respondent proving that it had committed no negligence which resulted in the overflowing of water into the applicant’s premises.  On this issue, I refer to paragraphs 8-172 to 8-174 of Clerk & Lindsell on Torts, 12th edition, and also Small Claims Tribunal Appeal No. HCSA 11/2007.  Hence it is arguable whether the adjudicating officer had wrongly placed the burden of proof on the applicant.  On this point, I think this is an issue that should be argued out on appeal. 

5. The adjudicating officer further relied on clause B(5)(c) of the Deed of Mutual Covenant which provides that: 

“The manager, its servants, agents or contractors shall not be liable to the owners or any of them or to any person or persons whomsoever, whether claiming through, under or in trust for any owner or otherwise for or in respect of any act, deed, matter or thing done or omitted in pursuance or purported pursuance of the provisions of this Deed not being an act or omission involving criminal liability or dishonesty or negligence and the owner shall fully and effectually indemnify the manager, its servants, agents or contractors from and against all actions, proceedings, claims and demands whatsoever arising directly or indirectly out of or in connection with any such act, deed, matter or thing done or omitted as aforesaid and all costs and expenses in connection therewith. Without in any way limiting the generality of the foregoing, the manager, its servants, agents or contractors shall not be held liable for any damage, loss or injury caused by or in any way arising out of

(a) any defect or failure or breakdown of any of the common areas and the common facilities, or

(b) any failure, malfunction or suspension of supply of water, electricity or other utility or service to the building, or

(c) fire or flooding or the overflow or leakage of water from anywhere whether within or outside the building.”

6. However, this Deed prima facie does not seem to exclude any liability arising out of the respondent’s own negligence, hence this clause cannot prevent the plaintiff from claiming against the respondent if the loss to the plaintiff arose out of the respondent’s negligence.

7. Finally, the adjudicating officer ruled that the applicant had not produced any report from claim adjusters to prove the reasonableness of her claim which made it very difficult for an assessment of quantum.  However, there are photographs of the furniture and fittings that had been damaged and, there is evidence of loss of nine days of salary of the applicant as she had to take leave in that period to assist in the clearing of the blockage to the drain, clear her premises and discard the damaged furniture.

8. For the above reasons, I grant leave to the applicant to pursue an appeal against the decision of the adjudicating officer and I reserve the costs of this application for disposal at the conclusion of the appeal.