VAST TEAM (HONG KONG) LTD v. HONG KONG MARINE CONTRACTORS LTD

DCCJ 5903/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5903 OF 2008

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BETWEEN

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JUDGEMENT

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1.  This case arises out of a complaint of water leakage in a multi-storey building.

2.  The parties are able to agree on the quantum of the Plaintiff’s claim in the sum of $90,000, and the only issue before the court is whether the water leakage was originated from the Defendant’s flat.

Background

3.  The Plaintiff is the registered owner of Flat A, 9^th Floor, Block 16 Villa Rhapsody, Symphony Bay, No. 533, Sai Sha Road, New Territories (“Flat 9A”), and the Defendant is the registered owner of Flat 10A of the same building (“Flat 10A”) which is immediately above Flat 9A.

4.  Starting from February 2008, the occupants of Flat 9A found that there were signs of water leakage in the ceiling of the master bathroom, and containers were used to collect the water dripping from the ceiling.  A report was made to the Management Office of Villa Rhapsody (“the Management Office”), and the staff of the Management Office conducted an investigation together with a contractor on 5 February 2008.  By that time, the contractor suspected that the problem was caused by a leak in the hot water supply pipes in Flat 10A, and he advised the occupants of Flat 10A not to use the bathtub of the master bathroom for the time being.  The occupants of Flat 10A complied with the request and ceased using the master bathroom for about a month.  The water leakage problem improved.

5.  On or about 25 April 2008, the water leakage reoccurred.  This time the leakage was more serious and water buckets were used to collect the water dripping from the ceiling.  The water seepage also extended to the ceiling of the bedroom adjourning to the master bathroom in Flat 9A.

6.  Infrared thermography scanning tests were conducted in Flat 9A on 15 July and 16 September 2008 by the Plaintiff’s contractors. There is a disagreement between the parties’ experts as to the interpretation of the results of these tests, but such tests clearly show that water was leaking from some unknown source to the master bathroom of Flat 9A.

7.  The Plaintiff also made a complaint to the Joint Office of the Building Department and the Food and Environmental Hygiene Department (“the Joint Office”) which was responsible for dealing with such kind of complaints.  The staff of the Joint Office inspected Flat 10A on 21 May 2008 and conducted water supply pipes pressure test and water dye tests in respect of all suspected drainage outlets in Flat 10A.  The results of these tests were all negative.  The Joint Office therefore engaged a consultant to investigate the source of the water leakage.  On 10 October 2008, the consultant conducted a number of tests in Flat 10A including bathtub and shower area joint sealant water spray tests and bathroom floor flooding test.  The results of these tests were again negative.  Subsequently, the tests conducted by the Water Supplies Department also did not show that there was any leakage in the water supply pipes in Flat 10A.  Based on the results of these investigations, the Joint Office concluded in April 2009 that there was no evidence to show that the source of the water leakage was in Flat 10A.

8.  Without waiting for the final findings of the Joint Office, the Plaintiff commenced the present action against the Defendant on 23 December 2008.

9.  After the commencement of legal proceedings, the parties sought expert’s opinion about the possible cause of the water leakage. The Plaintiff’s expert is Mr. Patrick Lau (“Mr. Lau”) whilst the Defendant’s expert is Mr. Andrew Kung (“Mr. Kung”).  They are both Authorised Persons under the Building Ordinance, Cap. 123 and building surveyors of considerable experience.

10.  Both experts first inspected Flats 9A and 10A on 5 May 2009.  They found that there were signs of water seepage in Flat 9A. Preliminary spray tests were carried out on that day in the shower cubicle of the master bathroom of Flat 10A and the external wall of Block 16 Villa Rhapsody (“the Building”), but the results of these tests were not conclusive. There was an access panel in the void near the water supply pipes of the bathtub of the master bathroom of Flat 10A.  The access panel was sealed on that day.  Without opening the access panel, the experts were not able to inspect the water supply pipes of the bathtub.  The Defendant’s witnesses testify that they were willing to let the Plaintiff’s expert to inspect the water supply pipes on that occasion, but they did not have the tools to remove the access panel.  Both experts agreed to inspect the water supply pipes in the next inspection.

11.  The next joint inspection took place on 20 May 2009.  With the access panel removed this time, the experts were able to inspect the water supply pipes of the bathtub.   Mr. Lau found that certain parts of the water supply pipes appeared to be new and there was a waterproofing layer in the floor slab underneath the bathtub.  According to Mr. Lau, these suggested that certain repair work had been carried out recently. However, Mr. Kung disagrees.  From the condition of the water supply pipes and the waterproofing layer, Mr. Kung says that there was insufficient evidence to show that repair work had been carried out recently.  The Defendant also denies that it had carried out any repair work whether relating to the said pipes or at all.  Water pressure test was performed on that day, and the result showed that there was no leakage in all the water supply pipes in Flat 10A.  Hence, if water leakage was to continue after May 2009, the source would not be the water supply pipes in the bathtub.

12.  Without finding any evidence suggesting that the source of the water leakage originated from Flat 10A, the experts then suspected that the water might have come from the external wall of the Building.  The experts therefore tried to agree on the methodology for the conduct of the water spray test in the external wall of the Building.

13.  The next inspections were conducted on 10 and 11 July 2009.  Scaffolding was erected on the external wall outside the master bathrooms of the two Flats, and high pressure water jet test was performed on 11 July 2009.  The result was again negative.

14.  The experts then inspected Flat 9A on 17 October 2009 to ascertain whether water was still leaking to the master bathroom of Flat 9A.  During such inspection, Mr. Lau found that there were still signs of such water leakage.

15.  There was complaint of termite activity in Flat 9A and so Mr. Lau went to inspect Flat 9A on 17 and 18 November 2009.  During these inspections, Mr. Lau found that there were still signs of water seepage. Further, traces of termite activity found in the ceiling of the master bathroom of Flat 9A suggested that there was persistent dampness in the floor slab between the master bathrooms of the two Flats.

16.  In 17 March 2010, both Mr. Lau and Mr. Kung conducted another inspection of Flats 9A and 10A.  By that time, Mr. Lau found that there were still some signs of water seepage.  He also found that there was a crack in the marble wall of the shower cubicle of the master bathroom of Flat 10A.  However, Mr. Kung disagrees that there was such crack in the marble wall, and the “crack” alleged by Mr. Lau was just a natural grain of the marble panel.

17.  In April 2010, the following repair and maintenance works were carried out in the external wall of the Building:

(a)   the external wall of the guest bedroom of Flat 11A of the Building with the work lasted from 12 to 26 April 2009; and

(b)   the external wall of the master bedroom of Flat 12C of the Building with the work lasted from 15 to 30 April 2009.

These repair works were carried out by the contractor engaged by the Management Office after the lodging of the complaints by the other residents of the Building that water was seeping to their flats from the external wall of the Building.

18.  Mr. Lau first testified at the trial on 11 January 2011.  In order to confirm whether the crack in the marble wall of the shower cubicle of the master bathroom of Flat 10A was still the source of the water leakage, the trial was adjourned to enable the experts to conduct further tests in the Flats.  Fluorescent dye test was therefore conducted on 1 February 2011 and the result of the test was again negative.

19.  During the latest inspections in February 2011, Mr. Kung found that there was still dampness in the ceiling of the master bathroom of Flat 9A and so he is of the opinion that the water leakage problem had not been completely solved. This tends to suggest that there is still a source for leakage outside Flat 10A.  On the other hand, Mr. Lau found that there was only some moisture in the ceiling and the presence of such small quantity of moisture did not suggest that the problem of water leakage still existed.  After all these tests and inspections, at least one thing is clear.  The problem of water leakage should have been solved by now.  If the problem continues, the source of water leakage is not from Flat 10A.

20.  After conducting the aforesaid tests and inspections, Mr. Lau rules out external wall as the possible source of the water leakage, mainly because of the negative result of the high pressure water spray test conducted in the external wall of the Building in July 2009.  When the problem first started in February 2008, Mr. Lau is of the opinion that the water came from a leak in water supply pipes of the bathtub of the master bathroom of Flat 10A.  The Defendant was able to identify the source of the leakage and carried out the necessary repair work shortly before the inspection on 20 May 2009.  After that, the water leakage continued though the problem was less serious, and so there had to be another source for the water leakage. According to Mr. Lau, the new source was the crack in the marble wall of the shower cubicle of the master bathroom of Flat 10A.  The Defendant was again able to identify the source of the problem and carried out the necessary repair work, and that was why the result of the fluorescent dye test conducted in February 2011 was negative.  Based on his investigation, Mr. Lau is of the view that the sources of the water leakage were in Flat 10A.  On the other hand, the Defendant’s expert, Mr. Kung, is of the opinion that there is no evidence to support that the source of the water originated from Flat 10A.  Despite the result of the water spray test conducted in July 2009, there was still a possibility that the water came from the external wall of the Building, which is supported by the fact that repair and maintenance works were carried out in the external wall of the Building in April 2010.  Mr. Kung says that his opinion is also consistent with the findings of the Joint Office.

Possible causes of the water leakage and the findings of the court

21.  According to the dicta of HH Judge Ng in Hui Ling Chun v Shiu Mak Ying, unreported, DCCJ No. 10294 of 2001 (decision on 3 March 2004), in the case of water leakage in a multi-storey building, there is no presumption that the water source necessarily came from the flat immediately above.  The plaintiff has the burden of proof to show that the source of water came from the defendant’s flat, and it is not for the defendant to find out the real source of the water leakage or to prove that its origin did not come from his flat (see: paragraph 2 of the judgment).

22.  In the opinion of the experts of the parties, the possible causes of the water leakage can be listed out as follows:

(i)   water leaked from the water supply pipes of the bathtub of the master bathroom of Flat 10A some time before 20 May 2009;

(ii)   water leaked from a crack in the marble wall of the shower cubicle of the master bathroom of Flat 10A; and

(iii)   water leaked from the cracks in the external wall of the Building.

23.  The experts had examined the other water pipes in Flat 10A and rule out the possibility of water leakage from those pipes. The communal drainage pipes in the Building were too far away from the area of water seepage in the ceiling of Flat 9A and so both experts also rule out the communal pipes as the source of the water leakage.

24.  Both parties agree that the Defendant was not responsible for the maintenance of the external wall of the Building whether the wall was outside Flat 10A or not.  Hence, the Defendant would not be liable if external wall was the source of the leakage.

25.  There have been extensive investigations in the master bathrooms of Flats 9A and 10A in the period from mid-2008 up to now. If water was leaking from the master bathroom in Flat 10A, the source could only have been the defective water supply pipes of the bathtub.   However, this could not have been the source after May 2009 because, according to the inspection of the access panel of the bathtub on 20 May 2009, the water supply pipes were found by then to be in good condition.  After the inspection in May 2009, the water leakage continued though the problem was less serious, and so there had to be a new source of the water leakage.  If the source was in Flat 10A, it had to be from the crack in the marble wall of the shower cubicle. This was unlikely to be source prior to May 2009 because: (i) Mr. Lau did not notice the presence of such crack in the earlier inspections; and (ii) the results of the water spray tests conducted in the shower cubicle of the master bathroom of Flat 10A in October 2008 by the consultant of the Joint Office and in July 2009 by the parties’ experts were all negative.  Assuming that the water leakage problem is to continue now, the source cannot be the crack in the marble wall as the result of the fluorescent dye test conducted in February 2011 was negative.

26.  In such circumstances, what was the cause of the water leakage?  Looking at the history of this case, if Mr. Lau is right, the Defendant was always able to identify correctly the sources of the water leakage and carried out the necessary repair works, and as a result no direct evidence could be obtained by the Plaintiff about the cause of the leakage.

27.  Having carefully considered the facts of the present case and all the expert evidence, I prefer to accept the opinion of the Defendant’s expert, Mr. Kung, that there is insufficient evidence to show that the source of the water leakage was in Flat 10A, and that leakage from the external wall of the Building remains a very likely cause of the water leakage.

28.  Assuming that the sources of the water leakage were in Flat 10A, it would virtually mean that all the following coincidences happened at the same time.  Firstly, there was a serious leak in the water supply pipes of the bathtub of the master bathroom of Flat 10A starting in February 2008 at the latest.  Secondly, despite that it would not be too difficult to obtain direct evidence to prove such cause, the staff of the Joint Office and its consultant could not ascertain the cause of the water leakage despite the extensive tests conducted in the master bathroom of Flat 10A in the period from May 2008 to April 2009.  Thirdly, despite the negative effort of the consultant and the staff of the Joint Office in locating the source of the leakage, the Defendant or its contractor was able to identify correctly the source of the water leakage and carried out the repair work in the water supply pipes of the bathtub some time prior to 20 May 2009. Fourthly, after the elimination of such source, another new source of water leakage developed in the crack in the marble wall of the shower cubicle.  Fifthly, the Defendant or its contractor was again able to identify correctly the new source of the water leakage.  Sixthly, the Defendant’s contractor carried out the necessary repair work in respect of the crack in the shower cubicle.  Further, the contractor left no traces of the repair work and such work was effective to stop the water leakage.  That was why the result of the fluorescent dye test was negative in February 2011.

29.  As I see it, there were simply too many coincidences for Mr. Lau’s opinion to be true.  Further, according to the evidence of the Plaintiff’s director, Mr. Shoong Yuk Leung Michael, the Defendant had all along been adopting a passive role in the handling of the whole affair.  The Defendant did very little in trying to locate the source of the water leakage, and it was simply relying on others to ascertain the cause of the problem before it agreed to carry out any repair works.  To a great extent, such attitude can also be shown in the correspondence between the Defendant and the Joint Office.  If that was its attitude, I find it extremely unlikely that the Defendant would have taken the initiative at least on two occasions to carry out the repair works.  Further, as shown by the history of the investigation in the past few years, the chance of the Defendant in correctly identifying the sources of the water leakage was rather slim.  Even if the Defendant took the initiative to carry out the repair works, it would have no guarantee that the contractor left no traces of the works, or that such works were effective to stop the water leakage.  In particular, the crack was deep in the marble wall and there was no guarantee that the transparent sealant would fill in all the gap in the crack.  Finally, if the Defendant was able to ascertain the causes of the water leakage at a much earlier time, it would have served the Defendant’s interest in disclosing such fact to the Plaintiff.  In such case, the Defendant would only have to pay for the Plaintiff’s limited damages and legal costs up to that stage, which would certainly be more desirable than getting itself involved in an uncertain litigation which is both expensive and time-consuming.

30.  Further, the results of the tests conducted by the staff and the consultant of the Joint Office also do not support Mr. Lau’s opinion about the causes of the water leakage.  If water was leaking from the water supply pipes of the bathtub of the master bathroom of Flat 10A, the results of the water supply pipes pressure tests conducted by the staff of the Joint Office on 21 May 2008 and subsequently by the Water Supplies Department should have been positive, and yet it was not the case.  Although Mr. Lau expresses some doubt about the accuracy of such tests, there is no reason for the court to believe that the staff of these Government authorities were not doing their work properly.  Further, the problem of water leakage continued after the carrying out of these tests, and so it tends to support that the source of the water leakage was in fact elsewhere.

31.  Neither was the “crack” in the shower cubicle the likely cause of the water leakage.  The results of the shower area joint sealant water spray test conducted by the consultant of the Joint Office on 10 October 2008, the water spray test and conducted by the parties’ experts in July 2009 and the fluorescent dye test in February 2011 were all negative, which showed that water was not leaking from the shower cubicle of the master bathroom in Flat 10A at different points in time.  Again, Mr. Lau expresses some doubt about the accuracy of the tests conducted in 2008 and 2009.  He believes that the crack was the cause but the Defendant had repaired such defect by filling the crack with some kind of transparent sealant.  However, if the results of the tests conducted in October 2008 and July 2009 were all negative which did not support the crack being the source of the problem, why should the Defendant had taken the trouble of asking its contractor to conduct further investigation relating to the crack and to carry out the related repair work?  Hence in my judgment, the “crack” in the shower cubicle was not the source of the leakage.

32.  One of the issues at the trial is whether the Defendant had carried out any repair works in the master bathroom of Flat 10A. In this regard, the Defendant’s witness, Mr. Chan Chi To, denies the same. However, Mr. Chan Chi To also testifies that because he was busy most of the time, it was his father, Mr. Cliff Chan, who was mainly responsible to liaise with the Management Office relating to the water leakage complaint.  Since the Defendant has not arranged Mr. Cliff Chan to testify in court, the Plaintiff asks the court to draw an adverse inference against the Defendant and to find that the Defendant had actually carried out the repair works.

33.  I disagree.  Whether the court should draw an adverse inference against a particular defendant depends on the facts of the individual case.  Mr. Chan Chi To provides the court will all the material facts of the case.  Further, Mr. Cliff Chan is the father of Mr. Chan Chi To and they work together in the same company.  Mr. Chan Chi To also stayed in Flat 10A for most of the material time.  In such circumstances, Mr. Chan Chi To would be able to know whether the Defendant had engaged contractor to carry out any repair works in Flat 10A.  Further, as I have mentioned above, the objective facts of the present case do not support that the Defendant would have taken the initiative to carry out the repair works itself.  Hence, I find in favour of the Defendant on such particular issue.

34.  If the water was not coming from Flat 10A, where did it come from?  Looking at the history of this case, there is no easy answer to this particular question.  As there were repair works in the external wall outside Flats 11A and 12C of the Building in April 2010, leakage from the external wall of the Building remains a very likely cause.  Such repair works were carried out by the Management Office in response to the water leakage complaints made by the other residents in the Building.  As I see it, if these residents were making the same kind of water leakage complaints, then external wall was a likely source of the problem.  Timing-wise, it also fits the facts of the present case, as there was no more water seepage in the ceiling of the master bathroom of Flat 9A, at least not to a significant extent, after the completion of such repair works in the external wall of the Building.

35.  However, such theory is not without difficulty. Firstly, if the external wall was the source, it is not easy to explain why the result of the high pressure water spray test conducted in July 2009 was negative.  Secondly, according to Mr. Lau, if the water was coming from the external wall of the flats above Flat 10A, there should have been extensive damage in Flat 10A caused by the water leakage as well.  As the damage in Flat 10A was not significant, external wall was not a likely source of the water leakage.  Thirdly, if water was leaking from the external wall, how can one explain that the problem of water leakage improved in March and April 2008 after the occupants of Flat 10A did not use the master bathroom for a month.  Further, the problem could not have simply improved by itself.  As there was no repair work carried out in the external wall of the Building in March and April 2008, it is very difficult to explain why the condition simply improved by itself. 

36.  For the first difficulty, I accept the evidence of Mr. Kung that because of how the test was performed, it was not possible for them to cover every piece of external wall of Flats 9A and 10A.  If there were cracks outside the tested area of the external wall, the result of the test might still be negative.  Further, the test only covered the external wall of the said two Flats.  If there were cracks in the external wall of the flats above, which is supported by the carrying out of the repair works in the external wall of Flats 11A and 12C in April 2010, then the test result might still be negative.

37.  I then come to the second difficulty.  According to the inspections carried out by both experts, there was some damage caused by water leakage even in Flat 10A itself and certain area of the wooden floor near the master bathroom need to be replaced.  Such damage could have been caused by the leakage originating from the cracks in the external wall of the other flats above Flat 10A.  Further, depending on the pattern of the development of the cracks and whether there were honeycomb structures in the external wall, Mr. Lau agrees that it was possible for the water in the external wall of the flats above 10A to pass through tiny cracks or honeycomb structures in the external wall of Flat 10A directly to the ceiling of the master bathroom of Flat 9A without causing extensive damage in Flat 10A.  Although Mr. Lau says that such scenario was unlikely, I accept the opinion of Mr. Kung that it was quite possible for water to leak from other flats to Flat 9A in such manner.

38.  It is not easy to deal with the third difficulty. Assuming that external wall was the source of the water leakage, it is very difficult to explain why the problem simply improved in March and April 2008 when there was no repair work carried out in the external wall of the Building.  Despite that, there were various factors which might affect the amount of water that leaked to Flat 9A, for example the amount of rainfall in the relevant period of time.  In any event, the court cannot solve all the mystery in the present case.  As I have mentioned above, I do not accept that the water supply pipes of the bathtub or the “crack” in the marble wall of the shower cubicle of the master bathroom of Flat 10A was the likely source of the water leakage, and so the Plaintiff has simply failed to prove that the source of the water leakage was in Flat 10A.  It is not the Defendant’s duty to prove the cause of the leakage.  Hence even if there is some difficulty with Mr. Kung’s theory, I still find, on the balance of probabilities, that the source of the water leakage was not in Flat 10A and the external wall remains a likely source of the problem.

This case illustrates one point: water leakage claims are both expensive and difficult litigations.  Despite the extensive and expensive investigation done in the past few years, the cause of the water leakage remains a mystery.  I can fully understand the frustration of the Plaintiff in the present case, but law still requires the Plaintiff to prove, on the balance of probabilities, that the source of the water leakage was in Flat 10A.  As the Plaintiff has failed to discharge such burden of proof, I have no option but to dismiss its claim.  I also make an order nisi that the costs of the action be to the Defendant with certificate for counsel, which shall be made absolute 14 days after the date of the handing down of this judgment.