LI CHING HAR AND ANOTHER v. WONG SUK KIT

DCCJ 4566/2014

[2019] HKDC 150

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4566 OF 2014

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JUDGMENT

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1.  This is a water leak case: the plaintiffs co-own Flat A1 on 13th Floor, Kin Lee Building, Nos. 138-146 Jaffe Road, Hong Kong (“Ps’ Flat”) and the defendant is the owner in the flat above (“D’s Flat”).

Background

2.  The plaintiffs’ case is that there has been continuous water seepage from D’s Flat to Ps’ Flat since 2008 or 2009 which was not rectified despite repeated requests and demands.

3.  The defendant denies this but did not instruct his expert, Mr. Wong Shun Tai, Stewart (“Mr. S. Wong”) to conduct joint water leak tests.

4.  The plaintiffs’ expert, Mr. Jacob Tsang (“Mr. Tsang”) has performed tests in the washroom of D’s Flat and found that there were water leakages from the drain of the sink as well as defective waterproofing of the floor. He concluded that “the defective waterproofing system of the bathroom floor” was the main cause of the water leaks. (Page 59 of Trial Bundle C)

The law

5.  The plaintiffs base their claim on the breach of the DMC (clause 10 which is the rather standard “not to permit anything creating a nuisance” type clause), common law nuisance and negligence.

6.  The legal principles regarding water leak cases are trite.

7.  Firstly, there is no presumption that the water must come from the flat above. The plaintiff has to establish, on a balance of probability, that the source of water was the defendant’s flat: Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456.

8.  Secondly, the fact that there might be other leakage paths would not relieve the defendant from liabilities for water seeped from his property into the property where water has seeped: Wong Ping Chun v Giant King Corporation DCCJ 4020/2012.

The dispute between the parties

9.  Despite what appeared to be an “open and shut” case given the tests results, the defendant has raised plenty of disputes.

10.  Firstly, the defendant claimed that the plaintiffs have given different times when the water seepage was first discovered and thus such evidence would be “unreliable”.

11.  However, there was a letter from the Buildings Department and Food and Environmental Hygiene Department Joint Office (“the Joint Office”) (Page 180 of Trial Bundle D) which showed that the Joint Office has received the plaintiff’s’ complaints through Wanchai District Councillor around February 2008. Further, this letter also stated that Inspector Wong of the Joint Office inspected Ps’ Flat on 7 March 2008 and located the signs of water seepage in the bathroom and suspected that the source was from D’s Flat.

12.  So whenever the plaintiffs remembered that they first discovered signs of water seepage, it was clear that they made the complaint at least as early as February 2008, and there was independent evidence to show that the signs of water seepage were present as early as March 2008.

13.  In fact, on 28 July 2009, the Joint Office’s appointed surveyor Mr. Paul Wong (“Mr. P. Wong”) was able to gain access to D’s Flat to conduct water leak tests including a water ponding test. On 24 August 2009, dye from the water ponding test was found in Ps’ Flat, thus Mr. P. Wong concluded that “the source of water seepage is defective floor of bathroom of suspected premises (D’s Flat).” (Mr. P. Wong’s report: page 66 of Trial Bundle C) 

14.  The defendant sought to submit that Mr. P. Wong’s report was inadmissible because it lacked the expert declaration and Mr. P. Wong was not called to give evidence.

15.  I cannot see any reason for such.

16.  Mr. P. Wong was instructed by the Joint Office. The Joint Office is not a party in this action. The parties have their own experts so there is no need to call him. More importantly, both the parties’ experts, in compiling their expert reports, have read Mr. P. Wong’s report so the report must be admitted so that the court is aware of all the background information available to the parties’ experts. Further, if there was any objection to the findings of Mr. P. Wong, e.g. any criticisms of the methodologies of the tests, should be something coming from the parties’ experts. No such criticism was raised. In fact, if criticism was raised, it would be even more important that Mr. P. Wong’s report should be admitted.

17.  Thus, I rule that Mr. P. Wong’s report is admissible.

18.  Mr. Tsang, the plaintiffs’ expert, has prepared two expert reports.

19.  The defendant also objected to the admissibility of Mr. Tsang’s first expert report because it lacked an expert declaration.

20.  I accept the plaintiffs’ explanation that at the time Mr. Tsang’s first expert report was compiled, they were not contemplating instructing him in a legal action. In any case, the plaintiffs’ have submitted the relevant expert declaration before the hearing of the trial. Mr. Tsang was called to give evidence and he again made that declaration in court. The defendant’s counsel has had all the time to cross examine him.

21.  The fact that the defendant still maintained that objection in the closing submission would indicate the degree of desperation in the defence.

22.  It is of note that the findings of Mr. P. Wong and Mr. Tsang are consistent: the floor of the bathroom in D’s Flat failed the water ponding tests on both occasions in 2009 and 2017, which would suggest that the defendant has done nothing (or nothing effective) to remedy the water leak problem for at least some 8 years.

23.  Despite this, the defendant claimed that both reports did not “explain the source of water seepage”. The defendant appeared to be suggesting that, the mere finding of a leaking bathroom floor was not enough, one need to prove the source of water that had actually flowed through it.

24.  The court makes its findings on the basis of “on balance of probability”. As opined by Mr. Tsang, bathroom floors are expected to be wet at some stage (that is the reason why they should be “water-proofed” in the first place!) I wonder what further tests the defendant is proposing that can “explain the source of water” beyond the tests already done. She has not proposed any and, certainly, her own expert has agreed on all the tests proposed by Mr. Tsang.

25.  The defendant also suggested that there were some periods of time when there were no water leaks. I would only agree that there were periods of time when no sign or symptom of water leaks was detected. However, I wonder how that is a defence: it is common sense that, depending on the situation and frequency of use, bathroom floors will be wet sometimes and not wet in others, and water may be spilled on different areas on different occasions. Thus, the fact that the sign or symptom of water leak has stopped is not proof that there is no longer any defect in the water-proofing of the floor: this is exactly why a “scientifically controlled” test like water ponding test has to be performed.

26.  During a period of apparent stoppage of signs of water leakage, the plaintiffs has started to renovate their flat, but then the signs of water leak recurred. The defendant suggested that there could not have been any water leak during the renovation because “any reasonable person would not have proceeded with renovation knowing that water seepage subsisted without first addressing the problem prior to the renovation.”

27.  I think that the argument makes sense only if one is dealing with a reasonable and decent neighbour who will fix a water leakage problem in his flat in a timely manner, but all the evidence shows that the defendant is quite the opposite of a “reasonable and decent” neighbour.

28.  In an attempt to explain the apparent inactivity to the water leakage and indifference to the damage suffered by the plaintiffs over the many years, Mr. Lau (the defendant’s son and witness) claimed that the defendant and himself only knew about the water seepage into Ps’ Flat in February 2015. This claim was made in court in face of all the records showing the efforts of the Joint Office contacting the defendant since 2008 including, of course, the water ponding test done by Mr. P. Wong in 2009. Mr. Lau’s explanation that: “I trusted the government officials so did not ask about the purpose of all their visits” is an insult to the court’s intelligence. Mr. Lau is clearly a thoroughly dishonest witness.

29.  In fact, all the evidence showed that the defendant and all the occupiers of D’s Flat has been persistently uncooperative: on one occasion, the Joint Office had to obtain a warrant from the Eastern Magistrates’ Court to gain access to D’s Flat.

30.  The defendant also suggested that the water leakage could have been from the 15th floor. This was a hypothesis proposed by her expert, Mr. S. Wong, but he did not (or perhaps not instructed to) perform any test to substantiate this hypothesis. I think that any party who proposes a hypothesis must produce the evidence to prove it.

31.  It has required an unless order (with indemnity costs) from the court in August 2017 for the plaintiffs’ expert, Mr. Tsang, to gain access to D’s Flat to conduct the relevant water leakage tests. But even then, according to Mr. Tsang’s evidence, Mr. Lau was harassing him and interfering with the tests by not allowing the proper amount of dye etc. to be used in various tests.

32.  Mr. Lau denied this under cross-examination but various photographs submitted by Mr. Tsang clearly showed that he had not put in a proper amount of dye etc.

33.  I see no reason why Mr. Tsang, an independent expert, should fabricate such evidence.

34.  In any case, despite all such efforts by Mr. Lau, the water ponding test (amongst others) was positive indicting defective waterproofing of the floor of the washroom in D’s Flat. This result was not challenged by the defendant nor Mr. S. Wong.

35.  Drawing inference from such behaviour pattern, I find that the defendant and Mr. Lau must all along be aware that the water seepage was coming from D’s Flat and that this has not been remedied (despite whatever Mr. Lau claimed that he had done, including allegedly “changing the water pipes” in 2010), and therefore the defendant and Mr. Lau took every effort to delay and frustrate the plaintiffs.

36.  I therefore find that the liability is clearly and firmly established with regard to a breach of DMC, common law nuisance and negligence.

Injunction

37.  The plaintiffs are seeking an order for injunction to restrain the defendant from repeating or continuing such nuisance.

38.  Under the circumstance, I think it more appropriate to order a mandatory injunction to direct the defendant to carry out all reasonable repairs to remedy the cause of water leakage as stated in paragraph 8.1 of Mr. Tsang’s expert report dated 27 October 2017 (page 59 of Trial Bundle C).

Quantum

Past and future repair costs

39.  The plaintiffs are now claiming HK$42,000 for future repair costs and HK$3,267 for alternative accommodation during the repair. These figures are supported by Mr. Tsang’s opinion and not challenged by Mr. S. Wong. I think this is reasonable.

40.  The plaintiffs are also claiming for a similar sum for reimbursement of the wasted costs for the repair work done in 2014. I note that the total sum for the renovation for the whole of Ps’ Flat came to HK$148,000. Thus, the plaintiffs are claiming about 28% of this sum as repair costs for the water leakage in the washroom and other areas. I think this is reasonable. I will also award a similar sum of HK$3,267 as reimbursement for alternative accommodation.

General damages

41.  As for general damages, and as stated above, I find that the defendant and Mr. Lau showed extreme irresponsibility towards their neighbour all along, and even after the case has commenced.

42.   I entirely agree with the observations of Deputy Judge Kate Li regarding the conduct of the defendant in an interlocutory application in this action: “This application of the defendant bears hallmarks of a desperate attempt to delay the conduct of this action. It is devoid of merits, and in my view, is an application made just for the making of application...”

43.  The court must therefore take into account that the water leakage has been ongoing since at least 2008 and so this is an extreme case of prolonged distress, frustration and inconvenience caused to the plaintiffs’.

44.  There is no mathematical formula for such intangible loss (Lee Wai Chuen and others v Cheung Chor Keung and others DCCJ 3098/2006) but I have considered the awards in Leung Yung Chuen v Chan Wing Sang [2001] 1 HKLRD 456, Wong Hon Hung & Cheung Hing Mei v Jolly Bords Limited DCCJ 5341/2006, Chung Che Shum v Dong Sai Ming Fernando DCCJ 21504/2001.

45.  I would award HK$90,000 under this head of claim.

46.  In summary:

	HK$
General damages	90,000
Past repair costs	45,267
Future repair costs	45,267
Total:	180,534

Interest

47.  There be interest for general damages at 2% from the date of writ to the date of judgment, and interest for the past repair costs at half interest rate from, say, 15 November 2014 to the date of judgment.

Order

48.  I will therefore make the following order:

i)   There be a mandatory injunction to direct the defendant to carry out all reasonable repairs to remedy the cause of water leakage as stated in paragraph 8.1 of Mr. Tsang’s expert report dated 27 October 2017 (page 59 of Trial Bundle C).

ii)   The defendant shall pay the plaintiffs general damages, past and future repair costs in the sum of HK$180,534 plus interest (in the manner as stated in paragraph 47 above)

iii)   The defendant shall pay the costs of the plaintiffs’ in this action to be taxed if not agreed, with certificate for counsel.