HUI LING LING V. SKY FIELD DEVELOPMENT LIMITED

HCA 35/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 35 OF 2007

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J U D G M E N T

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1.  This is a dispute concerning water leakage in a multi-storey building. The plaintiff, who owned the flat immediately below that owned by the defendant, complained that the defendant had caused serious water leakage to her flat. The present litigation was first commenced in the District Court, which was subsequently transferred to the High Court.

Background

2.  The Plaintiff was at all material times the registered owner of the premises known as Flat F, 6^th Floor, Block 3, Site 10, Banyan Mansions, Whampoa Garden, Kowloon (“P’s Flat”).  Save for the periods of time mentioned below during which the plaintiff and her family were not there, the P’s Flat was occupied by her and her family members including her two daughters and her husband.  The plaintiff’s son, Mr Ben Yeung Kwing Po (“Yeung”) came back to Hong Kong from Australia in around January 1998 and also resided at the P’s Flat.

3.  The defendant is a company incorporated in Hong Kong.  At all material times, the defendant carried on the business of real properties investments and owned numerous properties including several ones in the complex known as Whampoa Garden.  The defendant’s business was the leasing of properties for return of rental income.  One of the properties owned by the defendant is the flat immediately above the P’s Flat, namely, Flat F, 7^th Floor, Block 3, Site 10, Banyan Mansions, Whampoa Garden, Kowloon (“D’s Flat”).  As will be dealt with below, the D’s Flat was left vacant for a considerable periods during the time when water leakage is said to have occurred.

4.  Whampoa Garden is a complex in Kowloon comprising both residential and commercial units.  Both the P’s Flat and the D’s Flat are residential units, and were at all material times subject to the provisions contained in the Deed of Mutual Covenant registered in the Land Office by Memorial No. 2773981 (“DMC”) as well as those contained in the Sub-Deed of Mutual Covenant registered in the Land Office by Memorial No. 3969265 (“Sub-DMC”).  It is not in dispute that both the plaintiff and the defendant were at all material times bound by the provisions in the DMC and the Sub-DMC.

5.  The plaintiff relied on the following provisions in the DMC:

“Section II, Clause 3:

‘Each Estate Owner shall at all times hereafter be bound by and shall observe and perform the obligations, covenants, terms and conditions set out in this Deed and any relevant Sub-Deed and the benefit and burden thereof shall be annexed to every part of the Site and the Estate.’

Section V, Clause 4:

‘Each Estate Owner shall indemnify all other Estate Owners and occupiers against any actions, proceedings, claims and demands whatsoever in respect of any loss or damage to any person or properly caused by or as the result of the act or negligence of such Estate Owner of any occupier of his Unit or any person using his Unit with his consent expressed or implied or by or through or in any way owing to the overflow of water or the escape of fumes, smoke or anything else originating thereform.’

Section V, Clause 5:

‘Each Estate Owner shall be liable to the Manager and shall indemnify all other Estate Owners for the acts, omissions and defaults of the occupiers of his Unit and shall pay all costs, charges and expenses incurred in repairing or making good any loss or damage caused by the act, neglect or default of such person… in the case of loss or damage suffered by other Estate Owners or occupiers of any part of the Estate for which the Manager is not responsible to make good or repair, such costs, charges and expenses together with all other damages recoverable by law shall be recoverable by the person sustaining the loss and damage.’”

6.  The plaintiff further relied on the following provisions in the Sub-DMC:

“Section II, Clause 8:

‘Each Section Owner shall at all times hereafter be bound by and shall observe and perform the obligations, covenants, terms and conditions set out in this Sub-Deed and the Principal Deed.’

Section V:

‘Each Section Owner shall be bound by and shall observe and perform the covenants, provisions and restrictions contained in SECTION V of the Principal Deed and the following covenants, provisions and restrictions:-‘

Section V, Clause 2:

‘Each Section Owner shall maintain his Unit in good repair and condition to the satisfaction of the manager and in such a manner as to avoid any loss, damage, nuisance or annoyance to any other Section Owners or their occupiers.’

Section V, Clause 25:

‘No Section Owner shall use or permit or suffer his Unit to be used for any illegal or immoral purpose nor shall he do cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance to or cause damage to the other Section Owners and occupiers for the time being.’

Section V, Clause 26:

‘Each Section Owner shall take full responsibility for the conduct of the occupiers of his Unit and shall ensure that they comply with the foregoing covenants, provisions and restrictions as if they themselves were a Section Owner. If any of the occupiers of a Section Owner’s Unit shall fail to comply with any of such covenants, provisions and restrictions, the Manager shall have full power to enforce compliance by using the powers granted to it in clause (12) of sub-section A of SECTION VI hereof as if the defaulting occupier were a defaulting Section Owner.’

Section V, Clause 28:

‘Each Section Owner shall indemnify all other Section Owners and occupiers against any actions, proceedings, claims and demands whatsoever in respect of any loss or damage to any person or property caused by or as the result of the act or negligence of such Section Owner or any occupier of his Unit or the breach of the Section Owner’s obligations hereunder or by through or in any way owing to the overflow of water or the escape of fumes smoke or anything else origination therefrom.’”

The plaintiff’s case

7.  The plaintiff’s case can be seen from the Re-Amended Statement of Claim and the Witness Statement of Yeung Kwing Po Ben dated filed on 23 October 2007.

8.  According to the plaintiff, water leakage was first discovered in around September 1995.  The plaintiff complained to the management company, namely, Whampoa Garden Management Ltd (“Management Company”), but the water leakage problem continued.  The matter was initially handled by the plaintiff.  After he returned to Hong Kong in around January 1998, Yeung noticed water stains in the guess bathroom of the P’s Flat and started to assist her mother (the plaintiff) in handling the matter.  Apart from making further complaints to the Management Company, Messrs Wong & Chu were instructed to write to the defendant demanding rectification of the water leakage problem.

9.  In around May 1998, the plaintiff engaged a contractor, Messrs Wei Wa Decoration Engineering Ltd (“Wei Wa”), to rewire the electrical wires of the bathroom light switch on the wall.  In around March 1999, the plaintiff again instructed Wei Wa to replace the light bulb and

10.  Due to the water leakage problem, incidents of short circuits occurred from time to time.  The plaintiff’s whole family moved out of the P’s Flat in the period between October 2000 and January 2001.  During this period of time, the plaintiff instructed Wei Wa to carry out remedial works.  The works included the changing and re-attaching all electricity switches to different position of the walls, replacing electric installations and cables, replacing the wooden flooring and wallpaper, replacing ceramic tiles covering the walls of the master and guests bathrooms, and repainting and re-instating the false ceiling board and lightings in the ceiling.

11.  The plaintiff’s whole family moved back to the P’s Flat in around the end of January 2001 after the remedial works were completed.  For the first six months after the plaintiff’s family moved back, the situation appeared to be fine in that there was no water leakage problem.  However, according to the plaintiff, the water leakage problem reappeared and water started to drip from the ceiling of the guest and master bathroom again after six months.  The area of water stains extended to the walls which caused the paint to peel off.  The affected area extended to every part of the P’s Flat including the master bathroom, corridor, master bedroom and the living room.

12.  On around 8 January 2002, Yeung again complained to the Management Company about the problem.  In early April 2002, the plaintiff and Yeung agreed to allow the staff of the Management Company to inspect the external wall of the bathrooms of the P’s Flat.  After the inspection which took place during the period from 19 to 24 April 2002, Yeung was told that there was no obvious defects with the external wall.  Nevertheless, the Management Company rendered a new water-proofing layer onto the external wall.

13.  After the work done by the Management Company, the water leakage problem continued and extended into the master guest bathrooms.  Yeung made another complaint to the Management Company in September 2002.  Since late December 2002, the P’s Flat was left vacant.  According to the plaintiff, this was because the P’s Flat was rendered inhabitable as a result of the extensive water leakage problem.  The plaintiff further instructed Messrs Hui & Lam to write to the defendant complaining about the water leaking problem in August 2003.  This led to the letter dated 30 August 2003 and the further correspondence on this matter.

14.  On 18 February 2004, the plaintiff commenced action against the defendant in the District Court (DCCJ 865/2004).  Pursuant to an Order made by His Honour District Judge Muttrie, joint inspections by both sides together with their experts were carried out on 14 September 2004 and 11 October 2004.

15.  As noted above, the plaintiff and her family moved out from the P’s Flat in late December 2002.  The plaintiff and her family did not move back until 2007 after further substantial renovation works were done in 2006.  As will be dealt with below, Yeung accepted that the water leakage problem had effectively stopped after they moved back in 2007 and that he only recalled having made one complaint of water leakage after 2007.

16.  According to the plaintiff, the water leakage originated from the D’s Flat, and that such water leakage constituted breaches of the above-quoted provisions in the DMC and Sub-DMC.  In addition, the plaintiff also relied on the causes of action of negligence and nuisance.

The defendant’s case

17.  The defendant disputes liability.  Put shortly, the defendant took the stance that the burden of proof rested with the plaintiff and it is not for the defendant to identify the source or cause of the water leakage problem.

18.  The defendant stressed that the D’s Flat was vacant during substantial periods of time when water leakage is said to have happened.  According to the defendant (and as confirmed by the tenancies produced by the defendant at the trial), the occupation of the D’s Flat is as follows:

1^st letting: from 22 May 1991 to 21 May 1993

2^nd letting: from 1 September 1993 to 31 August 1995

3^rd letting: from 1 September 1995 to 31 August 1996

4^th letting: from 1 September 1996 to 31 August 1997

5^th letting: from 25 March 2003 to 31 May 2003

6^th letting: from 13 July 2004 to 12 July 2006 (but the tenant surrendered the tenancy in September 2004)

19.  As can be seen from above, the D’s Flat was vacant during the period from 1 September 1997 to 24 March 2003.  Further, the D’s Flat became vacant again after December 2004.

20.  In addition, the defendant highlighted three other matters.  First, according to the defendant, it conducted regular inspection of its properties including the D’s Flat and did not notice any water leakage problem at the D’s Flat.  Second, according to the defendant, if renovation or repair works were done to the D’s flat (whether by contractors arranged by the defendant or by the tenants themselves), there would be records showing that such works were done.  In the former cases, obviously the defendant would have records of engaging contractors and payment to the relevant contractors.  In the latter case, the tenants would have to seek approval from the defendant before commencing works.  However, the defendant has no record to suggest that there had been any substantial renovation or repair works done to the D’s Flat whether by itself or its tenants.  Third, the defendant produced a sample standard form document which it used when taking over vacant possession from its tenants.  The document contained various spaces relating to different areas of the D’s Flat so that any damage could be recorded by the defendant’s staff when they inspected the D’s Flat.  The point the defendant sought to make is that it did not notice any defects which might have caused the water leakage problem when they took over vacant possession from its tenants.

21.  At one stage, the defendant also raised the defence of limitation.  However, if the plaintiff’s version of events is upheld, the water leakage problem is plainly a continuous one.  Besides, the key events leading to the claims took place between 2002 and 2006 (ie the costs of the two renovations referred to above, and also the loss of rental during the time the plaintiff and her family moved out).  Hence, the defendant eventually did not press on with the defence of limitation.

22.  On quantum, the defendant raised the issue of mitigation.  In short, it is the defendant’s case that the renovation to the P’s Flat could have been done much earlier and not as late as 2006.  Accordingly, the defendant contended that the plaintiff should not be awarded damages which she should have avoided by procuring the renovation work to be done earlier.

The approach

23.  It is well established that there is no presumption that water leakage was necessarily caused by the flat above.  The plaintiff in a water leakage case bears the burden of proof to establish, on a balance of probabilities, that the source of water was the defendant’s flat.  Hence, it is not for the defendant to find out or identify the correct source of the water leakage or to prove that its origin did not come from his property.  See, eg: (a) Leung Yung Chun and Tsoi Chik Lai v Chan Wing Sang & Ors, unrep, HCA 12235/1998 (28 January 2000), para 22; (b) Hui Ling Chun v Shiu Mak Ying & Choi Chun Hoi, unrep, DCCJ 10294/2001 (3 March 2004), para 2; and (c) Wong Pui Ping v Au Wai Ki Jacky & Au Chun Yin, unrep, DCCJ 1225/2007 (17 April 2012), para 94.

24.  These legal principles aptly apply in the instance case since, as will be noted below, there are prima facie various possible sources of water which might have caused the water leakage problem suffered by the plaintiff.  In the circumstances, I am of the view that the doctrine of res ipsa loquitor does not apply in the present case.

25.  Accordingly, the key question in this case is whether the plaintiff succeeded in discharging her burden of proof.  The question is largely a factual one, which very much turns on the evidence adduced by the parties at this trial.

The factual evidence

26.  Both Yeung and the plaintiff filed witness statements for this action.  However, at the trial, counsel for the plaintiff informed this court that the plaintiff (despite having made a witness statement) would not testify.  Thus, as it turned out, Yeung was the only factual witness for the plaintiff.

27.  On the defendant’s side, there was also only one factual witness, ie Ms Fok Fung Yin (“Fok”).  She was at the material time the Leasing Manager of the defendant, and was the person responsible for the defendant’s tenancy matters.

28.  As will be apparent from the discussion set out below, the resolution of the dispute in this action does not turn on the credibility of the factual witnesses.  Fok, being the Leasing Manager, did not reside at the D’s Flat.  Yeung, on the other hand, could only testify on the condition of the P’s Flat.  His evidence is certainly relevant but is only of limited assistance on the ultimate question of liability.  In particular, Yeung was not in a position to tell what caused the water leakage problem or how it was caused.  Insofar as is relevant to the analysis set out below, I accept the evidence of Fok as I find her a credible and reliable witness.

29.  Amongst the documentary evidence produced at this trial are several Incident Reports prepared by the staff of the Management Company.  At the beginning of this trial, counsel for the defendant sought to object to the latter Incident Reports on the ground that those Incident Reports had not been sent to the defendant for their comments and that their contents had apparently been changed at the request or instigation of the plaintiff. (See the one-page written submissions lodged by the defendant’s counsel.)  Subsequently, the defendant’s counsel did not maintain its objection but, as I understand, reserved his position on the weight to be given to those Incident Reports.

30.  In my view, apart from areas which are not in dispute, this court should not give much (if any) weight to those Incident Reports.  It is not clear which staff member or members of the Management Company was or were the author(s) of the Incident Reports.  Nor is it clear as to whether the author(s) of the Incident Reports has or have any personal knowledge of the matters stated therein.  More importantly, there was no opportunity for the parties (especially the defendant) to test the accuracy or veracity of the matters asserted in the Incident Reports.  In any event, I do not find the contents of the Incident Reports particularly helpful in resolving the ultimate issues in dispute in this action.  In the circumstances, no reference would be made to the Incident Reports in the discussion set out below although I have considered their contents in the course of the analysis made with a view to determining the question of liability.

The expert witnesses

31.  As regards experts, the plaintiff only called Mr Stewart Wong (“Wong”) of Proficient Surveyors & Co as her expert.  Wong has provided two reports, the first one dated 28 October 2004 (“Wong’s 1^st Report”) and the other dated 8 December 2007 (“Wong’s 2^nd Report”).  Wong dealt with both the questions of liability and quantum.

32.  According to Wong, the D’s Flat was the origin of the water leakage problem suffered by the plaintiff.  He took the view that the water leakage from the D’s Flat was the result of “multiple causes” including the following (see para (11) of Wong’s 1^st Report, at p 13):

(1) escape of salty flush water due to defective flush water supply pipe fittings and drainage facilities;

(2) escape of fresh water due to defective fresh water pipes and fittings;

(3) escape of fresh water through worn drainage pipe fittings;

(4) the long term escape of salty flush water from the facilities of the D’s Flat.

33.  On the other hand, the defendant called two expert witnesses.  The first one is Mr Kenneth J K Chan (“Chan”) of KC Surveyors Ltd, who dealt with the question of liability.  Chan made two reports, the one dated October 2004 (“Chan’s 1^st Report”) and the other one dated July 2009 (“Chan’s 2^nd Report”).  According to Chan, the D’s Flat was not the source of the water leakage problem.

34.  Wong and Chan also produced a joint report dated 27 September 2010 (“Joint Report”) which sets out their disagreement on the various issues relating to the water leakage problem in this case.

35.  The defendant’s second expert is Mr Gilbert Chan (“Gilbert Chan”) of Jones Lang LaSalle Sallmanns.  Gilbert Chan, who is a chartered surveyor, produced one report dated 4 August 2009 dealing with the issue of quantum.

36.  Although Gilbert Chan did testify at the trial, the valuation issue was eventually agreed by the parties during the trial.  Accordingly, the issue key is the expert evidence on liability.  The defendant did not challenge the expertise of Chan.  Indeed, judging from the qualification of Chan, I do not think his expertise can be challenged.  I also find Chan’s testimony clear and reliable.

37.  The same, however, cannot be said of Wong or his evidence.  At the beginning of the trial, counsel for the defendant challenged the expertise of Wong.  At the end, this court was informed that the challenge of expertise was no longer maintained but the defendant invited this court to give little, if any, weight to Wong’s evidence.

38.  Wong submitted his 3-page CV (Exhibit P5) during this trial.  Wong also highlighted those qualifications which he regarded as relevant to the issues in this action, namely: (a) member of the Institute of Professional Investigators (UK); (b) committee member of the Hong Kong Concrete Repair Association; (c) fellow member of Hong Kong Institution of Chief Engineers (F&M); (d) registered concrete repairer (CITA); (d) Advance Professional Diploma in Building Services Engineering; (e) Certificate in Plumbing Engineering issued by the Institute of Plumbing (Hong Kong Council); (f) authorized signatory (Registered Minor Works Contractors, Class 1); (g) Certificate in Construction Supervision (Building Construction); (h) Certificate in Concrete Repair Methods for Supervisory Personnel; (i) Certificate in Reinforced Concrete - Defect Diagnosis and Remedy (CITA); (j) Certificate in Concrete Waterproofing and Leakage Repair Course for Supervisory Personnel (CITA); and (l) Certificate in Concrete Repair Methods for Supervisory Personal (CITA).

39.  To begin with, I note that Wong’s status as an expert in the context of water leakage has previously been doubted in another case heard before the District Court.  In Hui Ling Chun v Shiu Mak Ying and Choi Chun Hoi, unrep, DCCJ 10294/2001 (3March 2004), Her Honour District Judge Marlene Ng made the following observations in respect of Wong:

“28. Wong styled himself as damage surveyor, engineer, loss adjuster, claim assessor, investigator and appraiser and gave his qualifications and experience as follows :

(a) associate member (Wong’s 1^st Report) or member (Wong’s 2^nd and 3^rd Reports) or founding member since 1999 (Wong’s viva voce evidence) of Chief Engineers Association (Construction and Maintenance);

(b) C member (Wong’s 1^st Report) or association member (Wong’s 2^nd Report) or member (Wong’s 3^rd Report) of American Society of Appraisers, a United States association dealing with assessment of damages and appraising value of properties, which he joined 5 years ago;

(c) member of the Institute of Professional Investigators (UK), which membership was recognised as indication of investigatory professionalism (mostly in relation to settlement of claims) within the United Kingdom, European Economic Community and other overseas countries (including Hong Kong);

(d) member of Hong Kong Concrete Repair Association;

(e) registered professional investigator (UK);

(f) competent person certified under section 14(2) of the Factories and Industrial Undertakings (Confined Spaces) Regulations, Cap 59 (about 2 years ago);

(g) certificate in professional management training for plumbing engineering (about 7-8 years ago) by The Institute of Plumbing Hong Kong Council, which became independent from its United Kingdom counterpart after 1997;

(h) certificate in concrete repairs by the Construction Industry Training Association (“CITA”) (about 3 years ago); and

(i) certificate in concrete waterproofing and leakage repairs by CITA (about 3-4 years ago).

29. Wong said he had carried out investigating, surveying, and assessing loss in respect of water leakage and damage to premises for more than 1,500 to 2,000 water leakage claims over 18-20 years. He has also acted and been accepted as expert witness in court hearings in the Small Claims Tribunal, Lands Tribunal, District Court and High Court. Before Wong formed Proficient in 1994, he worked at an insurance company and as part-time surveyor with Kingsley Sit & Associates (from 1979) dealing mainly in claims settlement. He said about 60% of his portfolio of work related to water leakage claims. Proficient’s business also related mainly to water leakage claims and resultant damage to property.

30. Although Wong styled himself as a surveyor, he is not registered with the Surveyors Registration Board under the Surveyors Registration Ordinance Cap 141 and is not a member of the Hong Kong Institute of Surveyors (“HKIS”) established by The Hong Kong Institute of Surveyors Ordinance Cap 1148. He admitted that he did not know much about the Surveyors Registration Ordinance. Wong also agreed that members of Chief Engineers Association are not registered engineers but have overseas recognition (but he did not say what that was).

31. Lee had never heard of the Institute of Professional Investigators (UK). He understood Hong Kong Concrete Repair Association to be merely a trade union. Further, CITA’s courses were short-term 20-30 hour courses with no entry requirements or examinations, and were targeted at construction industry workers. CITA only gave out attendance certificates.

…

34.          Although Ms Wong, counsel for D, did not challenge the expert capacity of Wong, I agree with her that Wong’s qualifications and experience are relevant in assessing the weight of his evidence.  ... ... The various institutions of which he is a member have no statutory recognition in Hong Kong and their membership requirements are unknown.  It is unknown whether American Society of Appraisers is concerned with expertise in investigating causes of water leakage in contra-distinction to damage appraisal and other forms of damage to property. More significantly, Wong is not a registered engineer although he is said to be a member of Chief Engineers Association.  The identity of the registration body in respect of his qualification as registered professional investigator in the United Kingdom is unknown.  It appears from the evidence that Wong’s experience was gained mainly in relation to claims settlement, property damage appraisal and loss adjustment.  I have reservations as to his ability to speak reliably on expert investigation into the causes of water leakage.  Such concern is reflected in some contradictory and speculative aspects of his evidence seen below.”

40.  Although the above comments were made by Her Honour District Judge Marlene Ng in 2004, I respectfully agree and find such observations remain valid as at the date of this trial notwithstanding the lapse of time between 2004 and the date of the trial.  As reviewed by the answers he gave when cross-examined on his qualifications by counsel for the defendant, it is apparent that Wong’s qualifications had not been materially improved since 2004.  Most importantly, it remained the fact that Wong was at all material times not a registered or chartered engineer, nor was he a registered or chartered surveyor (especially in the context of building survey).

41.  The ways in which Wong conducted various tests for the purpose of this action also caused this court to have considerable reservations on the expertise of Wong (for example, the conduct of the pressurized water tests and the taking of samples from the P’s Flat, which will be discussed below).  Besides, exaggerations aside, many of the observations made by Wong were no more than bare assertions without detailed or solid reasons or analysis.  Amongst others, as noted above, two of the reasons given by Wong concerned fresh water.  However, as will be discussed below, fresh water could not possibly be the source of water causing the water leakage problem.  Nevertheless, Wong failed to analyze the situation and did not give any explanations.

42.  On the whole, I would not rule that Wong’s evidence is inadmissible on the ground that Wong was not qualified to be an expert for the purpose of this case.  It cannot be gainsaid that Wong handled numerous water leakage cases and was very diligent in attending various courses relating to construction or engineering (although their relevance to water leakage is not readily apparent).

43.  However, without disrespect to Wong, I have serious reservations about the reliability of his evidence (whether as contained in his two reports or his oral testimony in court).  On the other hand, I have no doubt about the expertise and qualification of Chan (and indeed no challenge was made by the plaintiff).  Besides, having heard Chan gave evidence at this trial and having considered his evidence against the other available materials, I found him a credible and reliable expert witness.  Unlike Wong who on occasions tried hard to put forward answers to support his case when plainly the answers cannot withstand scrutiny, Chan frankly admitted his inability to answer questions posed to him when matters are beyond his knowledge.  In the circumstances, to the extent there are conflicts between Wong’s evidence and Chan’s evidence, I would prefer that of Chan and reject that of Wong.

An overview on liability

44.  Before considering each of the tests dealt with by the experts, it necessary and desirable to consider the overall picture so as to examine the merits and the inherent probability of the plaintiff’s case.  This exercise comprises two parts: first, the possible sources of water; second, other evidence which might support or rebut the plaintiff’s case.

45.  Counsel for the defendant submitted, and I agree, that the following are the only possible sources of water that might have caused the water leakage problem in the present case, namely:

(1) fresh water;

(2) flushing (salty) water;

(3) water generated from operation of air-conditioners; and

(4) rain water.

46.  As far as fresh water is concerned, I find that it could not possibly be the source of the water leakage problem.  My reasons are as follows:

(1) As noted above, the D’s Flat was left vacant for two considerable periods of time.  This means that there was no occupant at the D’s Flat and thus no use of fresh water during the period of time when the D’s Flat was left vacant.  This is supported by the letter dated 19 October 2005 issued by the Water Supplies Department, which shows that the quantity of fresh water used was so negligible during the period from 14 January 1997 to 16 September 2004 that water charges were levied only for the month of May 2003.

(2) There was the meter flow test conducted by the Office of the Water Authority on 25 April 2003.  As confirmed by its letter dated 29 April 2004, the meter flow test showed that there was no leakage in the inside service of the D’s Flat.

(3) There was also the investigation conducted by the Food and Environmental Hygiene Department (“FEHD”) on 17 April 2003, which did not reveal any visible defect of the drainage system.  Further, according to the letter dated 31 March 2004 issued by FEHD, its staff had conducted colour dye tests at all relevant and likely drain outlets at the D’s Flat.  However, the test results were all negative, indicating no signs of defective drains at the D’s Flat.

(4) Lastly in this regard, it is also pertinent to note that fresh water supply to the D’s Flat was suspended in early February 2004 at the request of the plaintiff.  Yet, according to the plaintiff, the water leakage problem continued.  This also shows that fresh water could not be the source of the water leakage problem.

47.  As far as salty flush water is concerned, much was said by Wong about the possibility of it being a cause of the water leakage problem.  However, taking the plaintiff’s case at its highest and as can be seen from the relevant photographs produced at trial, there was no major or significant defects of the flush water drainage facilities at the D’s Flat.  At most, there was very limited quantity of salty water seeping through some of the pipes.  However, having considered the testimony by Chan in this regard, I accept that the water leakage problem could not possibly have been caused by salty flush water from the D’s Flat.  Had it been the case, one would have seen much more substantial leakage from the salty flush water drainage facilities at the D’s Flat.  Yet, even if one takes a view most favourable to the plaintiff, the evidence (especially the relevant photographs) did not reveal flush water leakage problem of such an extent as would have caused the problems suffered by the plaintiff.

48.  Turning to water caused by operation of air-conditioners, there is even less evidence to support the contention that it could have been the cause of the water leakage problem.  First, as noted above, the D’s Flat was left vacant for a considerable period of time during the relevant period.  This means that the air-conditioners at the D’s Flat would not have been in use, and thus would not have produced water.  Second, as a matter of common sense, the quantity of water that could have been produced during the operation of air-conditioners could not have been so substantial as to cause the serious water leakage problem complained by the plaintiff.

49.  Lastly, whilst it is strictly not necessary for this court to find the real source of the water leakage problem, it does appear that on the evidence available the most likely cause of the problem was rain water.  First, as pointed out by the defendant’s counsel, the complaint of water leakage appears to have a certain co-relation with the rainy seasons of Hong Kong.  Second, during his testimony, Yeung agreed that the water leakage problem was more serious during the rainy seasons.

50.  If the water leakage problem was caused by rain water, the responsibility did not fall on the shoulder of the defendant.  This was because the obligation to repair the external wall (through which the rain water could have permeated) was that of the Management Company.  As noted above, the Management Company did render a new water-proofing layer to the external wall of the P’s Flat (but not the D’s Flat) in 2002.

51.  Apart from considering each possible source of water, it is also pertinent to consider the following matters.

52.  First, as noted above, the plaintiff engaged a contractor to do remedial works during the period from October 2000 to January 2001.  According to Yeung, water leakage problem did not recur until 6 months after the remedial work.  That means there was no water leakage problem during the months from February to July 2001, and that water leakage only re-emerged after July 2001.

53.  The defendant’s evidence shows that the D’s Flat was left vacant throughout the entire 2001 (and indeed, as noted above, had been vacant from 1 September 1997 to 24 March 2003).  Further, Fok confirmed on behalf of the defendant that no renovation work was done by the defendant to the D’s Flat during this period of time.  This means that the condition of the D’s Flat remained the same throughout 2001.

54.  Viewed thus, it is inherently unlikely that the water leakage problem was caused by the D’s Flat.  Had it been otherwise, the water leakage would have continued irrespective of the remedial works done to the P’s Flat and also would not have stopped during the 6 months after the remedial works.  Rather, as suggested by the defendant’s counsel, this piece of evidence shows the water leakage problem had nothing to do with the D’s Flat, and might have something to do with the P’s Flat.

55.  Second, as noted above, the plaintiff’s family moved out from the P’s Flat in December 2002.  According to Yeung, he visited the P’s Flat roughly every three months since moving out.  Yeung said during his testimony that towards the end of 2005, he discovered that the water leakage problem had improved.  Indeed, that was the reason given by Yeung as to why he and the plaintiff decided to renovate the P’s Flat.  The plaintiff then instructed contractor to do substantial renovation works to the P’s Flat and then moved back in 2007.  Although paragraph 31 of his witness statement alleged that water leakage problem continued, Yeung confirmed in the course of his testimony in court that water leakage problem disappeared after they moved back in 2007.  According to Yeung, he could only recall having made one complaint after his family moved back in 2007.

56.  Fok confirmed that the defendant did not do any renovation or repair work to the D’s Flat during that period of time.  Besides, the D’s Flat was left vacant during that period of time.  Hence, the situation is similar to that surrounding the 2002 remedial works, viz, water leakage problem improved after renovation or remedial works done to the P’s Flat (as opposed to the D’s Flat).  This again suggests that water leakage problem had nothing to do with the D’s Flat and might instead have something to do with the P’s Flat.

57.  Third, as noted above, Yeung agreed during cross-examination that the water leakage problem was more serious during rainy seasons.  This appears to rebut the plaintiff’s case that the water leakage problem was caused by defects in the drainage system of the D’s Flat (be it fresh water or salty flush water).  The reason is this.  If the water leakage problem was due to the defects in the drainage system of the D’s Flat, that would mean that the water so leaked or seeped into the P’s Flat would be either fresh water or salty flush water (but not rain water).  If that be the case, water leakage should have continued irrespective of whether it was during the rainy seasons or not.

58.  Fourth, as noted above, the FEHD had conducted colour dye tests at all relevant and likely drain outlets at the D’s Flat on 17 April 2003 and the Water Authority had conducted meter flow tests on 25 April 2003.  According to the plaintiff, water leakage problem should be serious in April 2003.  However, the investigations done by FEHD and the Water Authority did not link the D’s Flat with the water leakage problem.  Both the FEHD and the Water Authority were independent authorities who had no interests to serve in this litigation.  There was no reason why either the FEHD or the Water Authority would have sided with the defendant.  There is also no evidence to suggest that the tests or investigation done by them were not properly done.  In the circumstances, this court has no basis to reject the findings made by these authorities.

59.  Fifth, the water leakage problem as suggested by the plaintiff was a serious one.  In particular, it is the plaintiff’s case that the water leakage problem rendered the P’s Flat inhabitable in late 2002 and that was the reason why the plaintiff and her family had to move out.  That being the case, one would expect serious or obvious defects in the drainage system of the D’s Flat (be it the fresh water one or the salty flush water one). However, both the photographs produced at the trial and Chan’s evidence suggested otherwise.  There was no sign of obvious defects, or at least no sign of defects of such an extent as would have caused the serious water leakage problem described by the plaintiff.

60.  Viewed thus, the overall view is wholly against the plaintiff’s case.  Expert evidence aside, it is inherent improbable that the D’s Flat was the origin of the water leakage problem complained of by the plaintiff.

The various tests

61.  I shall now consider the key tests relied on by the plaintiff’s expert, Wong, to contend that the D’s Flat was the source of the water leakage problem.

62.  First, there was the colour dye tests conducted by Wong in respect of the bath tub at the guest bathroom of the D’s Flat.  Although the results showed minor seepage through the cracks around the bath tub, I agree with the observations of Chan and do not find that the colour dye tests demonstrate leakage to the P’s Flat.  Besides, as dealt with above, FEHD did colour dye tests in April 2003 and did not find any defects in the drainage system of the D’s Flat.  There is no evidence to suggest that any material change had occurred to the drainage system of the D’s Flat during the period between April 2003 and the time the colour dye tests were done by Wong.

63.  Second, there was the flooding test to the floor of the guest bathroom of the D’s Flat on 14 September 2004.  According to Wong, he returned to the P’s Flat on 16 September 2004 and found more water dripping from the ceiling light point at the corridor of the P’s Flat.  Wong also took the view that the damp proof course in the floor slab of guest bathroom of the D’s Flat was worn and thus subject to water leakage.  On the other hand, Chan pointed out that it was not a common practice at the time that the building was completed to have damp proof course installed in bathroom; and the water test performed had not resulted in any leakage of water to the P’s Flat.  I accept the evidence of Chan and reject that of Wong. 

64.  The evidence of Wong in this regard is rather confusing (compare page 10 of Wong’s 1^st Report and page 8 of the Joint Report).  Apart from referring to the damped condition of the ceiling of the guest bathroom of the P’s Flat, Wong also referred to dripping at the corridor and master bathroom of the P’s Flat.  However, Wong did not explain how the water flooded to the floor of the guest bathroom of the D’s Flat could have affected the corridor and the master bathroom. 

65.  In any event, save in uncommon cases such as bursting of water pipes or deliberate acts on the part of tenants occupying the D’s Flat, it would be unlikely to have such large quantity of water flooding onto the floor of the guest bathroom of the D’s Flat as was the case when the flooding test was conducted.  There was no evidence that the D’s Flat had experienced any bursting of water pipes during the relevant period.  In cases of small quantity of water splashing onto the floor of the guest bathroom, the water would either evaporate or somehow absorbed in the concrete slab.

66.  Third, a total of four pressurized water tests were conducted in respect of the fresh water supply system of the D’s Flat on 11 October 2004.  As this test involved the removal of the water meter, a licensed plumber was required to do the job.  During cross-examination, Wong appeared to be either ignorant of this requirement or suggested that the test could be done without a licensed plumber.  This, in my view, throws doubt on the expertise of Wong.

67.  I do not accept that the pressurized water tests showed water leakage as suggested by Wong.  As explained by Chan (which explanation I accept), the first three tests were not properly conducted and thus their results are not reliable.  As regards the last tests, the minor drop in pressure (from 170 psi to 165 psi in 26 minutes) was within the acceptable range.  In my view, Wong’s suggestion that any drop in pressure, however minor it might be, shows leakage is an exaggeration, which throws doubt on either his expertise or reliability.

68.  Furthermore, as discussed above, I do not think fresh water could be the source of the water leakage.  I have also noted above that the letter dated 19 October 2005 from the Water Supplies Department shows that the D’s Flat hardly consumed any fresh water during the relevant period.  Such evidence therefore also rebut Wong’s suggestion that the pressurized water tests support his theory of water leakage.

69.  Fourth, I should add that Wong had taken three samples from the P’s Flat: sample A is a crystal substance; sample B is plaster flakes and sample C is a piece of concrete.  According to Wong, laboratory tests revealed that these samples had a high chloride content.  Wong relied on this to support his suggestion that the salty flush water of the D’s Flat had leaked to the P’s Flat and caused the water leakage problem.  Counsel for the defendant challenged the way in which the samples were taken and Wong’s reasoning regarding his observations in this regard.  I agree with the defendant’s counsel.  More importantly, if the water leakage was caused by the salty flush water from the D’s Flat, the quantity involved would have to be a huge one.  However, despite Wong’s observations, both Chan’s evidence and the relevant photographs do not reveal obvious defects of the flush water system in the D’s Flat which would have caused the extensive problem at the P’s Flat.

70.  Lastly, I should add that Wong also referred to the moisture contents of the walls at the D’s Flat as well as the observation he made in respect of the water meter of the D’s Flat (which he on one occasion attended the D’s Flat but apparently no one was there).  Given the overview discussed above, I likewise do not think these other observations by Wong are valid or are sufficient to support his case.

71.  On the whole, I do not think the expert evidence of Wong as relied on by the plaintiff supports her case or is sufficient to prove that the D’s Flat was the source of the water leakage problem.  Instead, I accept Chan’s view that the various tests conducted by Wong did not show that the water leakage problem originated from the D’s Flat.

Conclusion

72.  I have every sympathy for the plaintiff and her family members.  The water leakage problem was a serious one.  It is also understandable that the plaintiff and her son, Yeung, took the view that the water leakage problem was caused by the D’s Flat.  However, for the reasons stated above, I have no alternative but to find that the plaintiff has failed to discharge her burden of proof, ie the evidence adduced before this court is not sufficient to show, on the balance of probabilities that the water came from the D’s Flat or that the defendant had anything do to with the water leakage problem.  In the circumstances, each of the causes of action (breach of DMC and Sub-DMC, negligence and nuisance) failed.  Accordingly, the plaintiff’s claim is dismissed in its entirety and I so order.  In the circumstances, there is no need to consider the quantum of damages although I do see considerable force in the defendant’s argument on mitigation.

73.  I take the view that costs should follow the events, and I therefore make a costs order nisi that the plaintiff do pay to the defendant all the costs of and occasioned by this action, to be taxed if not agreed.

74.  It remains for me to thank counsel on both sides for their assistance at this trial.