LARBONS LTD v. KUO YOU WEAVING FACTORY LTD

DCCJ 934/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 934 OF 2006

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JUDGMENT

Background

1.  This is yet another action for relief in respect of water leakage into property claimed to constitute nuisance.  The Plaintiff is the owner of Flat A on the Ground Floor of Block 1 Kent Court ( “Kent Court” ), 131-139 Boundary Street, Kowloon ( “G/F” ).  G/F is occupied by the Plaintiff’s director, Mrs. Wong, and her family.  The Defendant is the  owner of the flat situated immediately above the Plaintiff’s flat, i.e. Flat 1A on the First Floor of Block 1 of Kent Court ( “1/F”).  It is occupied by the Defendant's director, Mr. Hung, and his family.

2.  The Plaintiff claims that since early 2003, water seepage problems had been detected in its property, which continued throughout 2003 until July  2004.  The Plaintiff claims that the water leakage problems resurfaced in March 2005, continued throughout 2005 and deteriorated in 2006, causing substantial damage, nuisance, and inconvenience to the Plaintiff.  It  alleges that the water seepage in its premises originated from concealed drainpipes serving the Defendant’s premises, and that the Defendant is accordingly in breach of Clause 10(c) of the Deed of Mutual Covenant in respect of Kent Court.  By this sub-clause of the Deed of Mutual Covenant, each owner of Kent Court covenanted not to do or permit anything which might be a nuisance or annoyance to or may cause damage or inconvenience to the other occupiers of the building.  Further or alternatively, the Plaintiff claims that the Defendant had caused nuisance so as to be liable at common law.  By this action, the Plaintiff claims damages sustained as a result of the water leakage.

The Facts and the Plaintiff’s Complaints

3.  According to the evidence of Mrs. Wong, water seepage was first noted in early 2003 on the ceiling of the guest bathroom ( “Guest Bathroom” ) and on the ceiling in her son’s bedroom ( “Children’s Bedroom” ) of G/F.  Some time thereafter, water seepage was also found on the wall of the Children’s Bedroom.  Mrs. Wong reported this matter to the management company of Kent Court ( “Management” ) and, through Management , notified the Defendant of the leakage problem and requested the Defendant to take steps to remedy the leakage.  Despite her numerous complaints, Mrs. Wong claims that no action was taken by the Defendant and the water seepage problem continued.  Mrs. Wong claims that Mr. and Mrs. Hung who reside at the Defendant’s premises refused to give any cooperation with regard to arranging access to be made by either Mrs. Wong, her experts or Management to carry out inspection at 1/F.  Throughout a period of 3 years, the Defendant had only permitted 1or 2 visits by Management and about 2 visits by Mrs. Wong’s experts in 2006 after these proceedings were commenced. This made it difficult for the Defendant to quickly ascertain the cause of the leakage, and except when the water seepage ceased for a while from July 2004 to early 2005 after some minor works were carried out by the Defendant, the water seepage within G/F continued and deteriorated until July 2006.

4.  In January 2004, the Plaintiff engaged Simon Yeung International Design Design Ltd ( “SYID” ) to advise on the action that should be taken in relation to the water seepage and the damage to its property sustained as a result.  Mr. Yeung carried out an inspection of G/F on 6 January 2004 and noted that the Children's Bedroom was seriously damaged by water seepage.  He made the preliminary conclusion after a visual inspection that the water seepage was caused by the leakage of concealed drainpipes running inside the floor slab of 1/F.  Mr. Yeung advised the Plaintiff to resolve the matter amicably with the Defendant and to request access to 1/F for inspection.  Mr. Yeung also advised the Plaintiff to seek help from professional building surveyors.  Accordingly, David C Lee Surveyors Ltd ( “DCLS” ) was appointed by the Plaintiff in 2004 to carry out a survey. 

5.  Mr. Yeung of SYID in particular visited G/F on a number of occasions between 6 January 2004 and 14 September 2006 and both Mr. Yeung and John Yip, a chartered surveyor of DCLS, conducted surveys.  Photographs were taken of the state and condition of G/F at different times of Mr. Yeung’s visits, namely, on 6^th January 2004, 10^th March 2004, 23^rd September 2005, 16^th March 2006, 22^nd March 2006, and 14^th September 2006.  Photographs were also taken by DCLS in January 2004. 

6.  A report was produced by DCLS in May 2004 ( “DCLS May 2004 Report” ), which concluded on the basis of a visual inspection of G/F that the water seepage in G/F originated from concealed drain pipes at 1/F, and that waste water from such drain pipes had penetrated into the floor slab of 1/F and leaked into the ceiling of G/F.

7.  Mrs. Wong claims that all her requests made through Management for co-operation from the Defendant had been to no avail, as the Defendant had refused to grant to either the Plaintiff or Management access to inspect 1/F.  The Plaintiff therefore lodged a complaint with the Food and Environmental Hygiene Department ( “FEHD” ).  As a result, FEHD carried out inspections at 1/F, which involved water colour tests being applied to likely drainage outlets  at 1/F and water samples being collected for analyses.  These tests led to the issue of a Nuisance Notice dated 11 May 2004 ( “1^st Nuisance Notice” ) by FEDH under section 127 (1) of the Public Health and Municipal Services Ordinance.  This Notice identified a drainage pipe connected to the floor drain of the guest toilet at 1/F to be in a defective state, and was served on the owner of 1/F, requiring the Defendant to abate the nuisance within 14 days from the service of the 1^st Nuisance Notice.  

8.  The evidence from the Defendant is that upon being served with the 1^st Nuisance Notice, it caused the floor drain outlet  in the guest bathroom of 1/F to be sealed up with cement.  After further tests by FEDH, it was confirmed by FEDH in about July 2004 that the 1^st Nuisance Notice had been complied with.

9.  Upon learning that the 1^st Nuisance Notice had been complied with, and since the seepage to G/F had stopped then and it was approaching Chinese New Year in 2005, Mrs. Wong made arrangements for renovations to be made to the Guest Bathroom and to the Children’s Bedroom on G/F to rectify the damage which had been caused as a result of the seepage.  However, she was advised by Mr. Yeung that as it was still unknown at that stage what repair works the Defendant had carried out pursuant to the 1^st Nuisance Notice, and it was still uncertain whether the cause of the leakage had been adequately and completely eradicated, the Plaintiff should not carry out comprehensive works but should only effect essential repairs until the situation became clear.  The Plaintiff took this advice, and some works were carried out in 2005.

10.  Unfortunately, Mrs. Wong discovered shortly after the renovation works in March 2005 that the water seepage in the Guest Bathroom and in the Children’s Bedroom recurred.  She had no alternative but to bring the matter to the Management again, but as her complaints to the Defendant through Management did not produce any results, she lodged another complaint to FEHD.  However, although the inspections made by FEDH in early 2005 confirmed that water seepage occurred in the Guest Bathroom as well as in the master bathroom of G/F  “Master Bathroom”, the tests carried out by FEHD did not produce any positive result and FEDH were not able to ascertain the cause of the water seepage.  As the seepage continued in G/F and the situation deteriorated, the Plaintiff engaged DCLS to carry out another survey in April 2005.  DCLS issued another report in May 2005 ( “DCLS May 2005 Report”) and concluded on the basis of their visual inspections that the water seepage problem identified at G/F in April 2005 originated from the leaked drainage system embedded in the floor slab of 1/F.

11.  According to the evidence of Mrs. Wong, the water seepage problem deteriorated in November 2005,as the area and amount of water leakage increased.  She brought this to the attention of both Management and DCLS.  DCLS made a further inspection of G/F in November 2005, took photographs at the premises, and issued a report ( “DCLS November 2005 Report” ) as to the condition of the Guest Bathroom, Master Bathroom and Children’s Bedroom at G/F.  The DCLS November 2005 Report concluded that the water seepage problem originated from the drainage system embedded in the floor slab of 1/F.

12.  The Plaintiff accordingly pursued her complaints to the Management, the Defendant and FEHD.  Management issued 2 letters to the Defendant in December 2005 in relation to the water seepage problem encountered in G/F and seeking the Defendant’s co-operation.   As a result of the Plaintiff’s complaint in December 2005, FEHD carried out an inspection at 1/F in January 2006 and colour dye drainage tests were applied.  Colour dye was immediately detected when FEHD visited G/F on the same day, at the U-trap installed beneath the guest bathroom of 1/A which could be seen in the false ceiling in the Guest Bathroom of G/F.  Samples taken for analyses by FEHD, and further tests conducted at 1/F by FEHD in March 2006, confirmed that the branch waste pipe connected to the floor drain of the master bedroom toilet at 1/F was defective. 

13.  Mrs. Wong’s evidence is that at about the same time as the FEHD inspections and tests in March 2006, the water leakage problem in the Plaintiff’s flat aggravated.  The water leaking from the ceiling was so bad and serious that the wooden floor in the Children’s Bedroom was wet through and became swollen, whereas the dampness in the walls in the Master Bathroom, the Children’s Bedroom and the Guest Bathroom could be felt by hand.  A joint inspection took place in G/F on 16^th March 2006, which was attended by the respective solicitors for the Plaintiff and the Defendant and by their experts.  Photographs were taken on the day.

14.  The situation continued without any improvement, and on 20^th March 2006, when Management representatives inspected the Plaintiff’s premises, they could see that the floorboard in the Children’s Bedroom had all swollen, the skirting board had been lifted or forced up, and the glass cabinet door had been broken as a result.  On  23^rd March 2006, Management wrote to the Defendant following its inspection of G/F on 20^th March 2006, informing the Defendant of the serious condition of the seepage within G/F and advising the Defendant that as the FEHD representatives had verbally confirmed that 1/F was the source of the water seepage into G/F, the Defendant should carry out repair works expeditiously.  Photographs showing (inter alia) the condition of the floorboard and the broken glass door were attached to the letter from Management dated 23^rd March 2006.  When the floorboards were removed, water patches could be seen and water was seeping from the wall.  Management’s letter to the Defendant dated 1^st April 2006confirmed this state of affairs.

15.  A letter from FEHD to the Defendant dated 15^th May 2006 also referred to FEHD inspections which were made to 1/F on 20^th March 2006 and 22^nd March 2006 and to the state of the swollen floor boards and to portions of the wall and ceiling at 1/F being damp to touch on those visits. 

16.  By this time, the water seepage problem had also begun to affect the ceiling of the basement car park just below G/F, causing the plaster on the ceiling to fall.

17.  A Nuisance Notice was finally issued by FEHD on 28^th April 2006 ( “2^nd Nuisance Notice” ), which required the Defendant to abate the nuisance identified as the aforesaid branch waste pipe, to repair the defective waste pipe and to cleanse the adjoining wall or column.  The 2^nd Nuisance Notice was considered by FEHD to have been complied with after inspections were made by FEHD in July and September 2006 and confirmatory tests were made in October 2006.  A letter confirming compliance was issued by FEHD to the Defendant on 1^st December 2006.

18.  In the meantime, after FEHD’s inspection in January 2006, the Plaintiff had issued these proceedings against the Defendant on 24^th February 2006.  Correspondence between the solicitors had failed to resolve the matter, the Defendant not agreeable to carrying out repairs to the drainage system of 1/F, nor to undertaking to indemnify the Plaintiff of its costs for remedying the damage sustained.  The Defendant took this stance as it was not convinced by the evidence then available to it that the water leakage originated from 1/F. 

The Issues

19.  The issues which have to be decided in this case are :

(1)	whether the Plaintiff  has discharged its burden of proving on a balance of probabilities that the water seepage within G/F originated from the Defendant’s premises at 1/F;
(2)	if the water seepage originated from the Defendant’s premises at 1/F, when the Defendant had actual or constructive notice of this;
(3)	whether the damage to property sustained by the Plaintiff was caused by the water seepage originating from 1/F; and
(4)	the extent of the Defendant’s liability for the items of damages claimed by the Plaintiff.

The Expert Evidence 

20.  As there is no presumption that water leaking into G/F necessarily comes from 1/F above, the burden is on the Plaintiff to show that the water seepage originated from the Defendant’s flat (Cheung Sau Ling & Ng Ping Hon v. Cheng Lai Chong CACV 268/98) (unreported, 9^th April 1999) and Leung Yung Chun & Anor v. Chan Wing Sang & Ors [2000] 1 HKLRD 456).  It is not for the Defendant to find out the source of the water leakage nor to prove that the seepage did not come from 1/F ( Hui Ling Chun v. Shiu Mak Ying & Anr DCCJ 10294 OF 2001 (unreported, 3^rd March 2004) ).  Hence, the Plaintiff procured 4 expert reports to be filed on the source of the water seepage, the cause of the damage sustained by the Plaintiff, and the extent of the damage sustained.  The circumstances of the engagement of the experts, DCLS and SYID, and the dates of the expert reports have been outlined in the preceding paragraphs.  The Defendant produced 3 expert reports, 2 by Building Diagnostic Consultants Limited (“BDC”) on the cause of water seepage and one by Treasurerex Limited on the repair costs claimed by the Plaintiff.

Cause of water seepage

21.  According to the Plaintiff’s experts, the cause of the seepage was leakage from the concealed drain pipes in 1/F.  The  DCLS  May 2004 Report related to an inspection of G/F by Mr. John Yip ( a chartered surveyor) on 19 January 2004.  Visual inspection was carried out at the Guest Bathroom and Children’s Bedroom of G/F. The suspended ceiling in the Guest Bathroom was opened up.  Damp patches, loose plaster and water stains were found throughout the ceiling soffit.  The floor drain of 1/F was seen to penetrate through the floor slab of 1/F into the concealed part of the suspended ceiling of G/F.  The U trap of the 1/F floor drain was exposed, and water stains and loose plasters were noted around the opening of the floor drain trap.

22.  The evidence shows that the Defendant had made alterations to the layout of the master bathroom at 1/F, which alterations involved changing the positions of the bathtub and the toilet in the bathroom.  This necessitated redirecting the original drainage pipe system, and raising the floor level in the bathroom to make the necessary connection between the relocated bathtub and toilet and the discharge pipe on the exterior wall. 

23.    Based on Mr. Yip’s visual inspection at G/F, he concluded that the water seepage originated from “leaked concealed drain pipes” at 1/F, and that the waste water from such drain pipes had penetrated into the floor slab and caused the damage in G/F.  He took the view that the source of the water seepage could not be the fresh water supply system which is under pressure, such that any leakage from such source should have been continuous and in bursts.  He also excluded rain water from the exterior wall as a possible source, as the water seepage had persisted throughout dry weather.

24.  When Mr. Yip was cross-examined, he maintained that the main reason for his exclusion of the external wall as the cause of the water seepage in G/F was his observation that the areas affected by water seepage within G/F were dry on the day of his inspection, whereas on the day before and in the morning of his inspection, it had been raining.  The Defendant's experts had suggested in their reports that the water seepage might have penetrated through the exterior wall from the floors higher above G/F, but in the opinion of Mr. Yip, if water had penetrated through the exterior wall of 1/F or 2/F, and had flowed down the external wall into G/F, it would not have caused such a big patch of water seepage in the ceiling of G/F.  Only a small area of the ceiling of G/F close to the exterior wall would have been affected this way.  It was also his evidence that it would be “very, very rare” for the water seepage in G/F to be caused by seepage of water through the exterior wall 3 or 4 storeys above G/F, that is, from the higher parts of the exterior wall of Block 1 of Kent Court.   Mr. Yip’s evidence was that if the water seepage had originated from the floor above 1/F, 1/F should have been more seriously damaged by water seepage as compared with the damage in G/F, whereas from the photographs appended to the Defendant’s expert report ( photographs Nos. 7, 8 and 10 of Appendix II to the BDC April Report), it could be seen that the ceiling of the bathroom in 1/F was dry.  Significantly, Mr. Yip’s evidence was that rain water seeping in through the exterior wall would not be yellow in colour, nor smelly, as was the case in G/F. 

25.  The DCLS May 2005 Report related to an inspection of G/F by Mr. James Law ( a chartered surveyor ) on 28^th April 2005.  Mr. Law inspected the Guest Bathroom, the Master Bedroom, the Children’s Bedroom, as well as the external wall outside the Guest Bathroom and the Children’s Bedroom. This report followed Mrs. Wong’s discovery of water seepage after she had made renovation works before the Chinese New Year in 2005, and the FEHD inspections could not identify the source of the water leakage.

26.  According to Mr. Law’s inspection of the external wall outside the Guest Bathroom and the Children’s Bedroom , it was finished with tiles and “dry water stains in yellowish-brown colour” were found. Water marks were found on the wall surface above the suspended ceiling in the internal wall between the Master Bathroom and the Guest Bathroom.  Otherwise, the state and condition of the areas within G/F inspected by Mr. Law in April 2005 were substantially the same as reported in the DCLS May 2004 Report, save for those damaged parts in the Children’s Bedroom which had been repaired before Chinese New Year in 2005.

27.  Based on the visual inspection conducted by Mr. Law on 28^th April 2005, he concluded in his report that the nature and extent of the water seepage problem identified in the Guest Bathroom, the Master Bathroom and the Children’s Bedroom within G/F were similar to the findings described in the DCLS May 2004 Report, and that the source of the seepage originated from “the leaked drainage systems which are concealed at 1/F”.

28.  In November 2005, after Mrs. Wong had reported a deterioration in the water seepage problem within G/F, DCLS were engaged to carry out a further inspection.  The DCLS November 2005 Report was issued and it related to an inspection of G/F on 29^th November 2005.  The inspection was carried out by Ms. Caritta Cheung, a chartered building surveyor.  Ms. Cheung did not give evidence, but the DCLS November 2005 Report was signed by Mr. James Law, who fully agreed with and endorsed Ms. Cheung’s findings, on the basis of Mr. Law’s own knowledge of G/F when he inspected these premises in May 2005.   

29.  Counsel for the Defendant accepted that he had no ground to dispute or challenge the condition of G/F as at the date of Caritta Cheung’s inspection on 29^th November 2005, as evidenced by the photographs taken on the day and supported by other photographs and contemporaneous documents and other evidence regarding the state of G/F on and around 29^th November 2005.  He only submitted that the DCLS November 2005 Report should be excluded on the basis that Mr. Law did not come to any independent view or conclusion, but had simply replied on his own earlier conclusions as to the cause of the damage as set out in the DCLS May 2005 Report.

30.  The condition of G/F in November 2005 and the extent of the damage observed within the premises was clearly recorded in the DCLS November 2005 Report itself and in the photographs taken on the day of the inspection.  Compared with the condition of G/F in May 2005 and the nature of the evidence obtained from the survey conducted in May 2005, the notable difference was the observation of yellowish coloured water being collected on a water tray which was placed below part of the drain pipe serving 1/F and which was inside the suspended false ceiling of the Guest Bathroom of G/F, as seen from photographs Nos. 7 and 8 appended to the report. Mr. Simon Yeung of SYID also gave evidence that the signs of water damage detected by him at G/F were consistent with damage by yellow colored, smelly drainage water.  This is also supported by Mr. John Yip when he confirmed in evidence that one of the reasons why he excluded rain water as a cause of the seepage was that rain water would not be yellowish in color.  Photograph  No. 6 also showed water dripping from a hairline crack of approximately 150 mm long on the ceiling of the G/F Guest Bathroom.  Adopting the same process of elimination and on the basis of the visual inspection carried out at G/F, the DCLS November 2005 Report concluded that the water seepage identified in the Guest Bathroom, the Master Bathroom and the Children’s Bedroom of G/F originated from leaked drainage system embedded in the floor slab of 1/F.

31.  Further, Mr. Law’s clear evidence is that by looking at the photographs taken on 29^th November 2005 and upon being briefed by Caritta Cheung, he was satisfied with the conclusions drawn by Caritta Cheung which he endorsed on the basis of his earlier investigations and findings in May 2005.  I am satisfied that in the overall justice of this case, the DCLS November 2005 Report should be included in the evidence as to the condition of G/F in November 2005.  As Counsel for the Defendant has pointed out, Mr. Law did not alter the conclusions he drew in May 2005 as to the cause of the seepage.  Whether the conclusions he made, which are set out in the DCLS  May 2005 Report and the DCLS November 2005 Report, are to be accepted is a separate issue to be determined in the light of the bases of his conclusions and the different opinions of the Defendant’s experts.

32.  In relation to the leakage which resurfaced in about March 2005 and continued until the end of 2006, Mr. James Law concluded in both the DCLS May 2005 Report and the DCLS November 2005 Report that the water seepage originated from the drainage system embedded in the floor slab of 1/F.  Leakage from the fresh water supply was eliminated as a cause for the same reason as in respect of the first incident of leakage from 2003 to July 2004.  White stains had been observed on the exterior wall during Ms. Caritta Cheung’s visit in November 2005, and it was suggested by the Defendant that this was a sign of water seepage in the external wall.  However, Mr. Law excluded rainwater seepage from the exterior wall as a cause for the leakage problem in G/F.  He gave various reasons for this.  His opinion was that seepage from rainwater through the exterior wall would at most stop after one day.  Any rainwater trapped in the wall would have dried up by then.  Further, Mr. Law explained that water from typhoon or heavy rain usually seeps through the window surround, which is not the case for G/F.  Mr. Law’s evidence is that 90% of rain water seepage occurs through the junction of the wall and the window (the window surround), and that it is “ highly unlikely” for rain water to ingress directly through the wall in parts other than the window surround.  Mr. Law also explained that water trapped in the external wall is more likely to escape or pass through a weak point such as the tile grout or joint and is not likely to penetrate the thickness of the wall unless there is a crack which would have been obviously visible.  When shown the photographs of the white stains on the exterior wall of G/F and 1/F,  Mr. Law’s evidence is that such stains are commonly found on an exterior wall which has just undergone retiling works, as in the case of Block 1 Kent Court.   The appearance of the white stains was the result of rainwater in the wall seeping though the weakest points such as the tile joints, or holes in the external walls of Kent Court which were drilled for the installation of the drainage pipe bracket.  The stains around these holes were yellowish in color because of the rust from the brackets.  In all, Mr. Law maintained that based on what he had seen at Kent Court, the chances of water penetrating the concrete layer of the exterior wall into G/F or 1/F were “ very slim”.

33.  In totality, I find the evidence of Mr. Law and Mr. Ip to be convincing.  Mr. Law did not consider the moisture mapping and the water tests conducted by BDC and their conclusion that rain water had seeped through the external wall to be reliable.  He attacked BDC’s evidence in various ways, which I shall summarise in paragraphs 47 to 54 below.

34.  The third expert called to give evidence on behalf of the Plaintiff was Mr. Simon Yeung of SYID.  As explained in paragraph 4 above, Mr. Yeung was first brought onto the scene in January 2004, when he was engaged by Mrs. Wong to carry out a survey on the water seepage problem detected in G/F in 2004.  He first inspected G/F on 6th January 2004, with the objective of identifying the interior decoration works and items that suffered from water seepage.  His report was issued in September 2006, for the stated purpose “ to identify such works and items and to ascertain the costs and extent of the repairs, replacement, reinstatement and rectification works that were required as a result “.  This report followed inspections which Mr. Yeung had made to G/F on different occasions on 6^th January 2004,  23^rd September 2005,  22^nd March 2006 and 14^th September 2006.  Although Mr. Yeung referred in his report and in his oral evidence to conclusions which he drew as to the cause of the water seepage being the drainage pipe system embedded in the floor slab of 1/F,  the SYID Report is primarily relied upon by the Plaintiff as an assessment of the nature of the work required to reinstate the areas of G/F which had been damaged by the water seepage, and the costs of such works.  Counsel for the Defendant accepted Mr. Yeung only as an expert on damages, although it is noted that Mr. Yeung has architectural training and considerable experience not only as an interior designer, but also in project management and costing.  The SYID Report attached many useful photographs taken by Mr. Yeung and his colleagues during their visits to G/F and 1/F.  I consider it proper to give regard to these photographs and to Mr. Yeung’s account of the condition of the premises inspected when I consider the other witnesses’ evidence on the extent of the water seepage, and the condition of the premises at G/F and 1/F on the dates of the visits when the photographs were taken.

35.  The Defendant relies on 2 reports of BDC respectively dated April 2006 “ BDC April Report ” and May 2006 “ BDC May Report”.  The BDC April Report refers to inspections made at 1/F on 1^st March 2006 and 25^th March 2006, an inspection made at G/F on 16^th March 2006, and a water test conducted on 11^th April 2006. 

36.  The BDC April Report described the methodology of BDC’s investigations as follows.  Drawing records would first be made, if appropriate, to record defects discovered.  Moisture mapping would then be carried out to detect the moisture content of materials by using a protimeter.  A Rapid Infrared Thermographic Survey would then be carried out to detect the temperature zones.  Visual inspection would be made to identify and check for water symptoms and the lay out of the premises.  If applicable, water tests would be applied to any suspected source.

37.  At the inspection on 1^st March 2006, BDC noted that there were water stains on the walls of the girl’s room on 1/F ( “Girl’s Room” ), which is situated directly above the Children’s Room of G/F; water stains on the branch drainage pipes serving 2/F which were mounted on the ceiling of the master bathroom on 1/F directly above the Master Bathroom of G/F; and white stains and dye stain on the exterior wall tiles of 1/F.  [On 16^th March 2006, BDC used a protimeter to measure the moisture content of the walls in the Girl’s Room, which indicated that the readings at the upper part of the walls in the Girl’s Room were “slightly high” and at the middle of the walls were “normal”. According to the BDC April Report, the pattern of this moisture mapping suggested that the floor above 1/F was most likely a source of seepage.  Water stains and spalled concrete were also seen on the ceiling of the bathroom of 1/F.

38.  During BDC's inspection of 1/F on 25^th March 2006, the protimeter was again used to measure the moisture of the walls of the Girl’s Room, the carpeted floor in the Girl’s Room, the floor parquets in the corridor outside the Girl’s Room, and the ceramic floor tiles and wall tiles in the bathroom next to the Girl’s Room on 1/F ( which corresponds to the  Guest Bathroom of G/F ).  These were all reported to be “high” readings. According to the BDC April Report, this means that the protimeter gave a red light indicator.  Although Mr. Ronald Chan of BDC who gave evidence for the Defendant insisted that the protimeter also gave a degree reading in addition to the red light which meant a high reading, the degree reading itself was not recorded nor shown in the report.

39.  Protimeter readings were also taken of the ceramic wall tiles and floor tiles in the master bathroom on 1/F, and of the carpeted floor outside the said master bathroom.  These readings were also recorded to be “high” as the red light indicator was shown.

40.  On the bases of the aforesaid inspections made in March 2006, BDC made a “preliminary analysis” of the problem in its April Report, and identified certain targets for further investigation as to the possible causes of the water seepage identified on G/F and 1/F:

(1)	the water supply pipes serving the G/F bathrooms;
(2)	the drainage pipes serving the G/F bathrooms;
(3)	the drainage pipes serving the 1/F bathroom;
(4)	flat 2A;
(5)	the external wall of the building; and
(6)	the external wall toe of the building.

41.  On 11^th April 2006, a water test was conducted by BDC on the external wall toe outside G/F; and on 9^th May 2006, a water test was conducted on the external wall of the bathroom of 1/F.    According to the BDC May Report which documented the details of the tests, the methodology adopted on both occasions was made with reference to the guidelines of the Joint Office of the Buildings Department and the Food and Environmental Hygiene established in 2005 ( “Joint Office” ).  Water was sprayed on the external wall toe outside G/F with water pressure of 35 Psi for about 15 minutes on 11^th April 2006, before the testing was stopped by the staff of the building managers.  On 9^th May 2006, water was sprayed on the external wall of the bathroom of 1/F with water pressure of 35 Psi for about 30 minutes.  The water tests were monitored by Infra-red Thermographic Technology. 

42.  Rapid Infra-red Thermographic Survey ( “ RITS “) is the process of converting the heat emitted from an object into a visible TV – like picture.  According to BDC, temperature zones are detected and recorded in this manner as a tool for locating water penetration and the extent of water ingress into a building structure.  The thermographic survey was conducted of the ceiling of the basement car park underneath G/F on 11^th April 2006, and of 1/F on 9^th May 2006.  Essentially, the process adopted by BDC was to do thermographic scans of areas within 1/F which were suspected to be affected by water seepage, then carry out a water spray test of the external wall of the bathroom of 1/F, and do further scans of the same areas within 1/F after the water spray test.  The scans before and after the spray would then be compared, to see if there are positive results of seepage.

43.  A  result is positive when either: (1) no water symptom was detected before the water test, but new water symptoms were detected after the water test; or (2) water symptoms were detected before the water test and such symptoms increased in extent or depth after the water test. 

44.  BDC did not obtain access to G/F on the day of the water testing on 11^th April 2006, so they could only do thermographic scans of  the ceiling of the basement car park which was just underneath G/F, and to inspect the said ceiling in order to observe the results of the water test. 

45.  According to the thermographic survey conducted by BDC, the water tests produced positive results for the floor of the Girl’s Room in 1/F, and for the ceiling of the basement carpark underneath G/F, since the signs of water seepage detected in these locations before the water tests enlarged after the water test. 

46.  On the bases of their inspections and water tests, BDC concluded in their BDC April Report that the defective floor drain of the bathroom of 1/F and the associated pipe should be properly repaired; the defective external wall should be repaired to prevent rainwater penetration; Flat 2A should be entered for verification as a possible cause of the leakage, and G/F should be further examined.  After conducting the water tests on the external wall on 11^th April and 10^th May 2006, the BDC May Report concluded that the external walls were problematic and should be repaired; Flat 2A should be entered for verification as to a  possible cause of the water seepage problem, and that G/F should be further examined to verify the problem.  In short, the BDC Reports identified the external wall, Flat 2A and the water pipes within G/F all as possible causes of the water seepage problem within G/F. 

47.  Mr. Law of DCLS considered that the manner in which BDC had conducted their moisture mapping to detect the areas affected by water seepage was unreliable.  First, Mr. Law pointed out that BDC had used the search mode of the protimeter to detect the moisture content of parts of the walls, floor and ceiling of 1/F.  In Mr. Law's opinion, the search mode is unreliable and has been shown in his experience to be inaccurate.  The search mode does not give an exact reading of the moisture content of the surface being measured.  It only gives either a red, yellow or green light.  Each lighting indicator has a range of readings.  For example, according to the BDC April Report, a green light indicator has a range of reading from 0.0 to 18.0, which means that the surface is dry; a yellow light indicator has a range of reading from 18.0 to 22.0, and means that the surface is normal; and a red light indicator has a range of reading from 22.0 to 99.0, and means that the surface is wet. 

48.  Second, Mr. Law's evidence is that readings from using the search mode are affected by the environmental humidity.  For this reason, Mr. Law explained that the FEHD would only allow its contractors to use the measurement mode when the protimeter is used, and not the search mode because its results are generally more misleading.

49.  Mr. Law particularly criticized the manner in which the tiled walls and the tiled floor of the bathroom at 1/F were measured by the use of the protimer.  Mr. Law explained that tiles are not permeable, and the surface of tiles are subject to condensation.  Mr. Law's first criticism is that as evidenced by photographs Nos. 113 to 130 which were appended to the BDC April Report, the allegedly high readings were obtained by application of the protimeter to the tiled walls and the tiled floor in the bathroom, with the window in the bathroom opened at the time when the measurements were taken.  In Mr. Law's opinion, the opened window would affect the allegedly high readings taken.  Secondly, by using the protimeter to measure the tiled wall and the tiled floor, only the surface of the tiles are being measured, and not the plaster of the wall behind the tiles or the cement floor under the tiles. Mr. Law explained that the measurement mode of the protimeter is more reliable as a method of measuring the moisture content of a surface.  However, the measurement mode of the protimeter cannot be used for a tiled surface, because the measurement mode of the protimeter requires the penetration of 2 small pointed needles into the surface, and this is not possible for a tiled surface as the needles cannot penetrate into the tile. In any event, the protimeter should have been applied against the concrete surface of the wall and the floor directly.  It follows from what Mr. Law said that the protimeter readings of the tiled wall and the tiled floor of 1/F using the search mode is totally unreliable or misleading as indications of the moisture content of the plaster or cement surface beneath the tiles. 

50.  Similarly, Mr. Law pointed out that BDC applied the  protimeter directly against the carpet on the floor in the master bedroom of 1/F when measuring the moisture content of the floor.  He pointed out that the reading obtained this way is unreliable as it can only measure the moisture content of the carpet, and not the floor slab underneath the carpet.  He explained that often, there is a waterproof sheet between the floor slab and the carpet.  To obtain an accurate measuring of the moisture content of the floor slab, the carpet should first be removed.

51.  Generally in relation to the methodology adopted by BDC in the measurement of the moisture content of the floor and wall of 1/F by use of the protimeter, Mr. Law said that the proper way of doing this is first to make a pre-determination of the points on any surface to measure.  There should be determined reference points to 4 corners outside the suspected damp area, and 3 potential checkpoints within the suspected damp area. This was not shown to have been done by BDC.

52.  Mr. Law also criticized the reliability of the RITS conducted by BDC.  In his experience, RITS conducted to test the waterproofing of the exterior wall of a building has produced many failures or incorrect results.  Mr. Law’s evidence is that RITS aims to show the temperature difference of two locations of the same surface.  However, according to Mr. Law, temperature difference does not necessarily mean that there is moisture or water trapped inside the surface in question.  In relation to the water spray test conducted by BDC on the external wall of Kent Court , Mr. Law maintained that the fact that the temperature of a part of the wall surface has fallen after a water spray test has been applied on the exterior wall may simply mean that the location has been  cooled by the water spray by the process of evaporation and latent heat being taken away. 

53.  Although BDC had in their reports stated that the methodology adopted for their water tests was made with reference to the guidelines of the Joint Office, Mr. Law pointed out that the Joint Office had not issued any guidelines on how to do water spray tests on an external wall of the building.  The "ASTM D4788" procedure referred to in appendix I of the BDC May 2006 Report has no relevance to the type of water spray test conducted for water seepage in 1/F : the "ASTM D4788" is in fact the specification for testing water seepage for “delaminated bridge”, used on “exposed and overlaid concrete bridge decks”.  These specifications clearly have no relevance to testing water seepage of the type encountered within G/F and 1/F. When questioned about this, Mr. Ronald Chan conceded that the only possible relevance "ASTM D4788" has to the procedure applied to Kent Court is that the procedure is not appropriate where the temperature is below 0 degrees.   It is clearly misleading for reference to be made to these specifications in the context of the surveys and scans conducted by BDC in this case.

54.  According to Mr. Law, the Joint Office has guidelines on how to do water spray tests for window joints and for shower cubicles with tiled walls. These have more relevance as references for water spray tests of exterior walls of a building.  By way of comparison, in respect of water tightness tests to windows, the guidelines specify that the water test should be carried out from the outside, with the window in a closed position.  The water should be applied using a nozzle, and the water flow to the nozzle should be adjusted to produce 30 to 35 p.s.i. water pressure.  The water jet is moved to and fro along the joint for a period of one minute in every 2 meter of the length of the joint at the window frame surround.  To test other window joints, the water jet is moved to and fro along the joints for a period of one minute in every 3 meter of joint length.  To test the water tightness of bathrooms, the guidelines require water to be applied using a shower head at a water pressure of 30 to 35 p.s.i., at a distance not exceeding 1.5 m from the showerhead.  The showerhead is moved to and fro along the tested surface, at a perpendicular distance of 300 - 600 mm from the wall or floor surface.  By further comparison, according to the Joint Office guidelines for water tightness tests for bathrooms with a shower area design, water should be sprayed evenly to the three sides of the wall, allowing two minutes spraying time for the panel walls abutting the shower tray.  The other side of the wall is then inspected to check if there is seepage through the wall, and one floor below is also inspected to check if there is seepage at the soffit.

55.  According to Appendix I of the BDC May Report, when the water test was carried out by spraying water on the external wall toe outside G/F, water pressure of 35 p.s.i.  was sprayed for about 15 minutes.  When the water test was conducted by spraying water on the external wall of the guest bathroom of 1/ F, water pressure of 35 p.s.i. was sprayed for about 30 minutes.  Compared with the guidelines issued by the Joint Office for bathroom walls and for windows on the external wall, counsel for the Plaintiff argued that the water pressure engaged and the duration of the water test were, by comparison, excessive, such that the methodology of the water tests is inaccurate and unjustifiable, and the results of the water test are accordingly misleading and should not be relied upon.

56.  Counsel for the Plaintiff also pointed out that in respect of the thermographic scans produced by BDC to show the difference in temperature of the areas measured at 1/F and the ceiling of the basement carpark, the spectrum shown on the scan of a particular location taken before the water test is different from the spectrum on the scan of the same location taken after the water test.  There is a difference of one to 2 degrees in the spectrum.  This produces a change in colour, and hence an apparent change in temperature, for the location in question.  Mr. Matthew Chan Che Yin, who gave evidence on the Defendant’s behalf in relation to the RITS and the scan results, explained that it was common practice to adjust the spectrum in the scans in order to suit the changes in atmospheric temperature in the interim between the first scan taken before the water spray and the second scan taken after the water spray, because the temperature of the dry area has changed.  He claims that the adjustment in fact gives a fairer comparison because if the same spectrum was adopted, the scan would have shown a larger area of a cooler temperature.  This may be so, but in my judgment, without a detailed explanation being given as to how any and all such adjustments are made and how they are to be justified, the scan results are misleading to say the least, bearing in mind that a difference in temperature of 0.2 to 0.3 degrees will be shown in the scan as a fall in temperature.

57.  The point made by counsel for the Plaintiff in relation to adjustment of the spectrum shown in the scans is relevant in the consideration of scan B 51, which is relied upon by BDC to show a positive result of the water test conducted at the external wall toe resulting in water seepage signs detected at the ceiling of the basement carpark beneath G/F being enlarged after the water spray test. For scan B 51, there is an adjustment of 1.6 degrees at the lowest end of the spectrum.

58.  In relation to all of the thermographic scans relied upon by BDC, counsel for the Plaintiff further highlighted the fact that in relation to the two sets of scans which are sought to be relied upon by BDC as showing positive results of the water tests, the first set of scans for the Girl's Room made before the water spray test was carried out at about 2:40 p.m. in the afternoon, while the second set of scans of the same location made after the water spray test was carried out at about 6:38 p.m..  In relation to the scans of the ceiling of the basement carpark relied upon by BDC as demonstrating signs of water seepage enlarging, the first set of scans was taken at about 10:20 a.m. while the second set of scans was taken at about 2:30 p.m.  The time lapse between the two sets of scans may have affected the change in temperature of the areas scanned, such that it would be unreliable to treat these scans as evidence of water seepage. I agree that this is a very valid criticism.  In the course of cross-examination, Mr. Chan Che Yin admitted that the temperature change of concrete is affected by the time of the day, and conceded that it was not ideal for the scans to be taken too far apart in time before and after the water spray test.

59.  According to Mr. Law, the difference in surface temperature as shown in the scans may also be affected by the angle of the camera, and it has been pointed out by Mr. Law that in some of the scans which are relied upon by the Defendant as showing a difference in temperature, the angles of the camera were slightly different.  Mr. Chan Che Yin maintained that an angle deviation not larger than 45 degrees would not affect the accuracy of the data collected.

60.  In relation to scan B30 to B32, Mr. Chan Che Yin conceded that the signs of water seepage detected on the carpeted floor in the Girl's Room actually showed water droplets accidentally spilled on the carpet, and not water seepage as a result of the water spray test.

61.  For scan B28 which was relied upon by BDC as demonstrating an enlargement of signs of water seepage in the carpeted floor of the Girl’s Room, Mr. Chan agreed that one cannot tell from the scan whether there is water on the carpet, or whether there is water on the concrete floor under the carpet.

62.  The BDC April Report and the BDC May Report were both signed by Mr. Ronald Chan.  In his evidence given at trial, Mr. Chan dealt with Mr. Law’s criticisms of the methodology adopted by BDC in conducting their moisture mapping and water tests by explaining that at the material time of BDC’s RITS and water spray tests in 2006, the guidelines issued by the Joint Office only referred to an enhancement of the investigative methods regarding water seepage complaints.  The guidelines referred to the adoption of modern technologies such as electronic moisture meters and rapid infrared thermo tracers in detecting the source of water seepage, but did not specify guidelines as to the use of such technologies.  According to Mr. Chan, new guidelines were issued by the Joint Office in 2007, and it was only then that testing requirements and specifications were set out for moisture content monitoring, including how moisture content should be recorded by selecting 3 to 10 checkpoints within the seepage area and 4 additional reference points outside the seepage area for moisture content check, as referred to by Mr. James Law, and 3 sets of moisture meter readings being taken at each 15 minute interval.  Hence, when BDC carried out their investigations at Kent Court in 2006, they did not follow the guidelines which were only subsequently introduced by the Joint Office in 2007.

63.  The guidelines issued by the Joint Office in 2006 recognized the use of infrared thermal imaging as one method to identify water seepage including the evaluation of its severity, but even under these guidelines, the use of infrared thermal imaging was stated to be "not standard practice but application on need basis".  Even the guidelines issued by the Joint Office in 2007 did not specify how infrared thermal imaging is to be conducted.

64.  According to Mr. Ronald Chan, the object of carrying out moisture mapping as stated in the BDC reports was to outline the shape and the area of moisture by using a protimeter in the search mode.  The search mode was used because it can show the level of moisture quickly without causing any damage to the surface tested by penetration of the pins or needles which would be required if the measurement mode of the protimeter was used.  Mr. Chan would use the "destructive mode" of testing only with the consent of the parties involved.  However, he recognizes that the protimeter can only read moisture up to 10 mm below the surface tested, and that its accuracy falls when measuring a depth below 10 mm.  As the tiles in the guest bathroom of 1/F were not removed when the protimeter was used to measure the dampness of the tiled floor, Mr. Chan accepted that the concrete floor may have been more than 10 mm beneath the surface of the tiles.

65.  On cross-examination, Mr. Chan conceded that the exterior wall of Kent Court had been sprayed with water for 30 minutes on 9 May 2006 because the instructions from Mrs. Hung of the Defendant were that the water seepage problem at G/F was more serious during heavy rain.  The water spraying for 30 minutes was aimed to simulate heavy rain, and Mr. Chan conceded that but for Mrs. Hung’s instructions concerning the seriousness of water seepage during or after heavy rain, Mr. Chan would have specified that the water spray test should be done for a shorter duration of 5 minutes at a 1 metre run.  Counsel for the Plaintiff was quick to point out that according to Mrs. Wong's evidence, it is not in fact correct that the water seepage at G/F was more serious during or after heavy rain.  Mrs. Wong's evidence is in fact that the seepage at G/F was not affected by the rain and even after a red or black heavy rain warning, the surface of the areas affected by the seepage remained dry.

66.  The BDC April Report referred to a "preliminary analysis" of the possible causes and sources of water seepage after the protimeter was used for moisture mapping.  Mr. Chan explained that the visual inspection and the protimeter readings aimed only to identify all the damp areas for the parties to advance to the next stage of conducting more scientific tests in order to confirm the findings. He admitted that the search mode of the protimeter is good only for showing whether there is a high or low level of dampness, but it does not give a precise degree reading.  He admitted that the measurement mode of the protimeter gives a more accurate reading but it is more destructive.

67.  After hearing the evidence of Mr. James Law, Mr. John Yip, Mr. Chan Che Yin and Mr. Ronald Chan, I and left in doubt as to the reliability of the RITS and the water spray tests results.  The manner of using the search mode of the protimeter in moisture mapping, which only gives an unspecified range of readings of high, normal and low; the limited penetration; and particularly the use of the protimeter on the surface of tiled walls and carpeted floors, all leave me in doubt as to the accuracy of the readings as indications of dampness in the concrete wall and cement floor.  As Mr. Ronald Chan has pointed out, the use of the search mode of the protimeter may be adequate for outlining the area and shape of moisture at a location, but this will only give a very preliminary indication and the results remain to be confirmed. 

68.  As for the water tests, although Mr. Ronald Chan pointed out that the Joint Office did not issue guidelines on how water tests should be conducted on an exterior wall, he used the guidelines in place for testing window frames as a reference, but used a spraying time of 30 minutes as he took the view that a wall is thicker.  However, the Joint Office guidelines for testing the water soundness of a tiled wall of a shower cubicle is only 5 minutes.  His final concession that the more appropriate time frame for the water test of the exterior wall should be 5 minutes at a one meter run supports the contention that the respective 30 minute and 15 minute duration of the water tests conducted was excessive. 

69.  As for the RITS scans, I have already mentioned above the doubts which have been cast on their reliability in view of the lapse of time between the first sets of scans and the second sets taken after the water spray test, and the fact that different spectrums were used for the two sets of scans.  RITS is a modern technology the use of which may be encouraged by the Joint Office, but until clearer and standardized specifications are defined and set out with regard to its use, the reliability of RITS results depend on the experience of the person or persons conducting the tests and the methodology used in each case.  I bear in mind Mr. Chan Che Yin’s concession that RITS has not been endorsed by the Hong Kong Laboratory Accreditation Scheme as a testing methodology.

70.  In support of BDC's finding that the external wall of Kent Court is a possible source of the water seepage within G/F, the Defendant referred to a Notice dated 25th April 2007 of a meeting of the Incorporated Owners of Kent Court.  This refers to complaints made by some owners of water seepage from the ceiling or the external wall of Block 1 of Kent Court.  The Notice also refers to repairs to flats A and B on 11th floor (the top floor) of Block 1.  Neither Mr. Hung nor Mrs. Wong attended this or other related owners meeting and neither of them had knowledge of the cause of the seepage referred to in the Notice.  Without further evidence as to the nature of the water seepage referred to in the Notice and how and whether such seepage is related to the seepage which occurred at G/F, I can only give very little weight to the Notice when considering the cause of the water seepage which had occurred at G/F.

71.  Also in support of its finding that the water seepage within G/F is sourced from be exterior wall of Kent Court, reference was made in the BDC April Report to the observation of a half-moon shaped pattern of water stain on the floor in the Girl's Room at 1/F, shown in photographs Nos. 27 and 28 and described as "a rising damp on the wall toe".  BDC's finding was that this was consistent with water seeping up from the floor of 1/F, suggesting penetration from the exterior wall.  However, when cross-examined, Mr. Ronald Chan conceded that this was not conclusive.

72.    BDC also referred to signs of water stains extending from the top of the wall in the Girl's Bedroom on 1/F, which according to BDC suggests water seepage from above 1/F, most likely from the exterior wall.  However, in this regard, Mr. Simon Yeung's evidence was that according to his examination of the damage to the wallpaper as is apparent from photographs Nos. 67 and 68 appended to the BDC April Report, such damage was more consistent with damage by water condensation as a result of cool air from the outlet of the air-conditioner immediately next to the wall in question.  Mr. Yeung did not accept that this damage was a result of water seepage from the exterior wall outside the Girl's Room.

73.  On a balance of probabilities, and after considering all the evidence available before the Court, I prefer to accept the evidence of DCLS with regard to their findings as to the cause of the water seepage being leakage in the drain pipes and drainage system serving 1/F, which findings are also supported by the color water test results of FEHD.  As there is no evidence of how the FEHD tests were conducted, I do not take them as conclusive evidence of the cause of the seepage, but they support the findings of the Plaintiff’s experts and the other evidence produced by the Plaintiff.  On the evidence, all seepage signs ceased after the Defendant completed its rectification works in respect of the bathrooms at 1/F and the drainage system serving these bathrooms at the end of July 2006.

Defendant's liability

74.  The Statement of Claim pleads that the Defendant is in breach of clause 10 (c) of the Deed of Mutual Covenant in respect of Kent Court, by which each owner I exactly how money among Dell Oaklawn dragon Maloy unknown and we of the month Eydie Monger covenants not to do or permit anything in or upon its premises which may be a nuisance or annoyance to or may cause damage or inconvenience to other occupiers of the building.  By causing or permitting the leakage of water from the Defendant’s premises into the Plaintiff’s premises, the Plaintiff claims that the Defendant had caused damage or inconvenience to the Plaintiff.  Further or alternatively, the Plaintiff pleads that the Defendant caused nuisance so as to be liable at common law.

75.  Since I have found that the water seepage was caused by leakage of the Defendant’s drainage system installed at 1/F, the Defendant or its agent had, by authorizing or causing alterations to be made to the original drainage system serving 1/ F, and failing to take reasonable steps to rectify the defective drainage pipes when leakage first occurred, permitted the leakage to occur so as to be liable for breach of Clause 10 (c) of the Deed of Mutual Covenant.  The Defendant is therefore liable for the damage caused to the Plaintiff as a result of its breach of clause 10(c).

76.  Applying the test set out in the judgment of Woo, JA in the case Cheung Sau Ling and Ng Bing Hon v. Cheng Lai Chong CACV 268/98 (unreported, 9^th April 1999), for seepage of water to constitute nuisance at common law, the defendant must be shown to have actual or constructive knowledge that the leakage of water originated from the Defendant's property.  Under this test, "knowledge" can be what the Defendant actually knew, or what the Defendant should have known with normal and reasonable diligence.  If the Defendant can be shown to have actual or constructive knowledge that the water seepage originated from the Defendant's premises, the Defendant will be liable unless remedial action is taken without unreasonable delay.

77.  Although Mr. and Mrs. Hung knew that Mrs. Wong had made complaints about water seepage at G/F, Mr. and Mrs. Hung did not know that such water seepage originated from the Defendant's flat.  I am not satisfied on the facts of this case that with reasonable diligence, Mr. and Mrs. Hung should have known earlier than May 2004 that the water seepage had originated from 1/F.  It was not until the issue of the 1st Nuisance Notice on 11th May 2004 that Mr. and Mrs. Hung had actual  knowledge that the water seepage occurring at G/F from end 2003 to early 2004 was caused by the branch waste pipe at the guest bathroom of 1/F.  However, after they were served with the 1^st Nuisance Notice in May 2004, they knew that the drain pipes serving 1/F were leaking and hence defective and that water seepage was caused to G/F as a result of the defective drainage system.  When the Defendant received the 1st Nuisance Notice which Mr. Hung said was a few days after 11th May 2004, what Mr. Hung did was to engage a contractor to simply seal up the drain outlet on the floor of the guest bathroom.  The evidence of this is photograph No. 74 attached to the BDC April Report and in FEHD’s letter dated 15th May 2006 reporting that when they visited 1/F for inspection on 6th July 2004, they had found that the floor drain in the guest bathroom of 1/F had been sealed up by cement.

78.  When the water seepage recurred at G/F in March 2005, the FEHD conducted water tests but the results of the preliminary tests were not conclusive, such that it was not until 28th April 2006 that the 2nd Nuisance Notice was issued.  In this interim, Mrs. Wong had made many complaints, but the Defendant was not satisfied that the water seepage originated from 1/F.  Although the Plaintiff commissioned DCLS to prepare surveys and reports were issued by DCLS which identified the source of the water seepage as defective drainage pipes at 1/F, these reports were not supplied to the Defendant until after these proceedings were issued.  Since the onus is on the Plaintiff to prove that water seepage originated from the Defendant's flat, the Defendant can wait for the Plaintiff to produce the necessary evidence as to the cause of the water seepage.  The Defendant is not bound to carry out investigations to prove that the water seepage did not originate from its premises.  It is entitled to commission its own experts to carry out investigations and to verify the cause of the water seepage as alleged by the Plaintiff.  However it does so at its own risk, because if the court ultimately finds that the water seepage in question originated from the Defendant's premises and that it should have known this, then it will have to accept liability in relation to the damage sustained by the Plaintiff in the interim as a result of the water seepage.

79.  I have already found that when the Defendant received the 1st Nuisance Notice in May 2004, the Defendant had actual notice that the drainage pipes serving 1/F were defective.  The rectification works which the Defendant carried out were inadequate.  Instead of repairing the branch waste pipe identified to be defective in the 1st Nuisance Notice, the Defendant took a shortcut by simply getting an unlicensed plumber to seal up the floor drain outlet in the guest bathroom.  When the water seepage in G/F resurfaced in March 2005 and the 2nd Nuisance Notice was issued on 28 April 2006, Mr. Hung consulted this same contractor, and although Mr. Hung asked for the drain outlet in the master bathroom to be sealed up, he was told by the contractor that since leakage had occurred before, and this was the second occasion of leakage, there was no guarantee that leakage would not happen again unless both bathrooms on 1/ F were properly repaired and the drainage pipes directed to the external wall.  Pursuant to such advice, the Defendant did have the bathroom drainage properly rectified and the bathrooms water-proofed, and since 31 July 2006 and as confirmed by FEHD tests conducted in October 2006, no further seepage was detected within G/F.

80.  Certainly by the time of the issue of the 2nd Nuisance Notice on 28 April 2006, the Defendant had actual knowledge that the leakage of water into the Plaintiff's property after March 2005 was caused specifically by the branch waste pipe connected to the floor drain of the master bathroom of 1/F.  In the circumstances of this case, I consider that when the Plaintiff complained in March 2005 that the water seepage problem had resurfaced within G/F, the Defendant should with reasonable diligence, and with the experience of the first incident of leakage leading to the issue of the 1^st Nuisance Notice, have either made further inquiries with its own contractor or permitted the Plaintiff and her agents to gain access to 1/F to carry out inspections in order to verify whether the seepage which had resurfaced was related to the defective drainage serving 1/F.  This is particularly so since Mr. Hung knew full well that he had not done any repair to the drainage pipe which had leaked before and which might have deteriorated in the interim. On application of the test set out in the Court of Appeal decision of Cheung Sau Ling (ibid), the Defendant should with reasonable diligence have known by March 2005 when Mrs. Wong complained again that the water seepage at G/F had resumed that such seepage originated from the defective1/F drainage system.

81.  Since the Defendant failed to take steps to rectify the leakage from March 2005 (when the Defendant should have known that the seepage originated from 1/F), it is liable for the damage caused to the Plaintiff's property as a result.

Damage

(1) Cost of Repairs

82.  I accept the submission of counsel for the Plaintiff that once  liability is proved, the Plaintiff is entitled to damages for the reasonable cost of carrying out remedial works to a standard commensurate with the standard of the Plaintiff's property, and that it is not unreasonable for the Plaintiff to repair the damaged parts so that it should blend in with the whole (Chan Fei Lung v.  Mansion Products Limited & Others [1990] HKC 504).  The Plaintiff therefore seeks the reasonable cost of reinstatement of the Plaintiff's damaged property to its original condition by repairing the damaged parts with the same or equivalent materials of the same quality that blends in with the existing materials.

83.  After the first incident of water leakage, Mrs. Wong carried out some essential repairs to the damage to property at G/F before the Chinese New Year in 2005.  The Plaintiff incurred a sum of HK$67,050 for the work carried out as recommended by the DCLS May 2004 Report.  Mr. Simon Yeung's evidence is that he had inspected the signs of water seepage within G/F as well as the damaged property, on the basis of which he prepared his report setting out his opinion of the reasonable costs essential or incidental to the reinstatement of the areas of G/F which were affected by the water seepage.  In relation to the essential works which had to be carried out before Chinese New Year 2005, he estimated that the reasonable costs were HK$ 61,725. 

84.  The damage sustained by the Plaintiff after March 2005 is more controversial. After hearing the evidence of Mr. Yeung, the Plaintiff's expert on damage, and the evidence of Mr. Kam, the Defendant's expert on damage, I am satisfied that Mr. Yeung was more familiar with the situation encountered by the Plaintiff from early 2004 until 2006 as matters progressed from bad to worse, and that he had monitored the situation throughout, having attended 6 inspections at the site.  Photographs were taken by him or his team during each inspection.  He was convincing in his evidence that the damaged woodwork was smelly and infested with insects as the dampness deteriorated.  Mr. Yeung was of the opinion that for reasons of hygiene, the floor tiles, the sanitary fittings, the basin cabinets and the shower cubicles in the Guest Bathroom and the Master Bathroom had to be removed and replaced.  The 2nd Nuisance Report in fact directed and required the Defendant to repair not only the defective waste pipe but also to clean the adjoining wall or column in the master bathroom of 1/F.  This lends support to the reasonableness of Mr. Yeung's opinion that the tiles on the floor should be removed in the bathrooms for hygiene reasons.  He sought to revise his estimate to include the cost of removing and replacing the wall tiles in both bathrooms for the same reason.  The plaintiff seeks to include an additional sum of HK$66,225 for this work.

85.  Mr. Kam of Treasurerex Limited had only attended G/F on one occasion on 14 September 2006 for about 15 minutes.  His evidence is that he had only quantified the costs of repairs based on those items of damage set out in paragraph 4 of the DCLS May 2005 Report, and that he had based his measurements on the not to scale drawings attached to that report. He accepted that he did not have further information about damage sustained by the Plaintiff after the date of the DCLS November 2005 Report.  Hence, Mr. Kam's report did not cover the damage sustained to the Children's Bedroom due to the serious water leakage on 22nd March 2006, nor the damage which had extended to the living room of G/F.  When considering Mr. Kam's estimates, I bear in mind that his experience in the E&M area relates essentially to major fitting out and alteration works as well as other work projects that involve developers, main contractors and specialized subcontractors.  Mr. Kam states in his report that "the pricing of the works in the cost estimate is based on the current local market prices obtained through tendering by invitation for renovating or fitting out projects under the design and supervision of qualified architects”.  It is clear from this that the lower estimates given by Mr. Kam are not applicable to small jobs such as Mrs. Wong's, which by virtue of the small scale involved will not be put out to tender.  It therefore appears that Mr. Yeung's estimates are reasonable and are to be preferred.  With regard to the removal of the 5 square meters of damaged plank flooring in the living room, I am satisfied that Mr. Yeung's estimates of the quantity of materials required and the costs required are reasonable on the basis of reinstatement of such flooring to its original state and to enable the replaced part to blend in with the rest of the floor.  I am also satisfied by Mr. Yeung's evidence that the items in the Children's Bedroom ( listed under item 4 of Part One of his assessment in Appendix B to the SYID Report ) were damaged by the water seepage and  I allow the sum of Hong Kong $27,470 claimed by the Plaintiff in respect thereof.

86.  Having considered the evidence of both experts on damage, I allow all the estimates made by Mr. Yeung with regard to to the costs of the repair and replacement works required to be incurred as a result of the water seepage into G/F.  In total, the costs amount to HK$330,850, which include the additional item of costs required for replacement of the tiled walls of the bathrooms.

(2) Injury to amenity of land 

87.  On the authority of Hunter v. Canary Wharf Ltd. [1977] AC 655, the Plaintiff as the owner of G/F seeks damages for the injury caused to its property, in the sense that its utility has been diminished by the existence of the nuisance. 

88.  Lord Hoffman in his judgment in Hunter v. Canary Wharf highlighted that nuisance can be divided into 2 categories : one of causing “material injury to the property” such as flooding or depositing poisonous substances on crops, and the other of causing "sensible personal discomfit" such as excessive noise or smells.  Whereas there is no doubt that the remedy in cases of the first category is for causing damage to the land, Lord Hoffman made it clear in his judgment that even in the case of nuisances which are  “productive of sensible personal discomfit”, the action is not for causing discomfit to the person but, as in the case of the first category, for causing injury to the land.  He said at page 706 of his judgment :

“

In the case of nuisances ‘productive of sensible personal discomfort’, the action is not for causing discomfort to the person but … for causing injury to the land.  True it is that the land has not suffered ‘sensible’ injury, but its utility has been diminished by the existence of the nuisance.  It is for an unlawful threat to the utility of his land that the possessor or occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation.

… But diminution in capital value is not the only measure of loss.  It seems to me that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not.  In the case of transitory nuisance, the capital value of the property will seldom be reduced.  But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted”.

Lord Lloyd also emphasized in his judgment in Hunter v. Canary Wharf that the essence of private nuisance, be it nuisance by encroachment on land, nuisance by direct physical injury to land, or nuisance by interference with a neighbor's quiet enjoyment of land, is the same: namely, interference with land or the enjoyment of land.  Thus, Lord Lloyd said at page 696 of his judgment :

“	The effect of smoke from a neighboring factory is to reduce the value of the land.  There may be no diminution in the market value.  But there will certainly be loss of amenity value so long as the nuisance lasts.”

Lord Lloyd also stated that "damages for loss of amenity value cannot be assessed mathematically, but this does not mean that such damages cannot be awarded".

89.   In support of its claim of breach of covenant, the Plaintiff also relies on the authority of Calabar Properties Ltd. v. Stitcher [1984] 1 WLR 287 to seek the difference between the value of the flat to the Defendant in the condition it was and the value of the flat would have had to the Defendant if the Plaintiff had fulfilled its obligations under the covenant contained in clause 10 (b) of the Deed of Mutual Covenant.  This is by application of the fundamental principle of assessing a plaintiff’s damages to restore it to the position it would have been in had there been no breach of covenant.

90.  The case of Calabar was applied in Formalex Limited and Abdoolally Ebrahim & Co. (HK) Ltd. DCCJ 14886/2000, when the court awarded the defendant, a limited company, damages assessed at the reduced value of the flat to the defendant, as tenant, without air-conditioning as compared to the value of the flat with air-conditioning, as contracted for.

91.  In this case, Mrs. Wong was not joined as plaintiff to seek any relief.  During the period when G/F was affected by water seepage, the Plaintiff did not incur any expense in providing for alternative accommodation for Mrs. Wong and her family.  The Plaintiff, as corporate owner of G/F, seeks diminution in the amenity value of its property during the period for which the nuisance persisted.  According to the calculations of damages made by Counsel for the Plaintiff, the Plaintiff argues that the nuisance persisted from early 2003 when the Plaintiff claims the Defendant was informed by Management of leakage within G/F, until 6th July 2004 (when the 1st Nuisance Notice was considered by FEHD to have been complied with); and from March 2005 when the leakage resurfaced at G/F until 31st July 2006 (when FEHD found that the water seepage at G/F had ceased).  The Plaintiff claims diminution of 20% to 30% of the rental value of G/F during this period.  If the Plaintiff’s claim for diminution of utility value of land is to succeed, as I have found that the Defendant should only be liable for the Plaintiff's damage from 15^th May 2004 when the Defendant should have known that the water leakage at G/F originated from the defective drain pipes within 1/F, its claim should only be for diminution over the period from 15 May 2004 to 6 July 2004, and from March 2005 to 31st July 2006.  Moreover, although Mrs. Wong's evidence was that a flat equivalent to the Plaintiff's flat would have fetched a monthly rent of Hong Kong $30,000 inclusive of rates, management fees and a car park, there is insufficient evidence of this, and I regard it more fair to consider the pleaded rateable value of the Plaintiff's property which is HK$ 173,400.

92.  Neither counsel has referred to the judgment of the Court of Appeal in Let’s Go Investments Ltd. v. Yeung Sau Hing in CACV 16/2006, 12 March 2007.  In this case, the defendant by counterclaim was successful in establishing that the plaintiff was in breach of the Deed of Mutual Covenant and also liable in nuisance and negligence, but was not able to show any actual loss or damage as a result.  The trial judge had originally awarded the defendant a “nominal sum of HK$50,000” by way of damages to compensate the defendant for the security risk posed by the breach of covenant.  However, the Court of Appeal held that it was a classic situation for awarding nominal damages of HK$100 to simply recognize that the defendant's legal rights have been infringed.  I consider that since the Plaintiff has not been able to establish any actual loss or damage apart from the costs of repairs and the surveyor's fees incurred, this court is bound by the decision of the Court of Appeal in Let’s Go Investments Ltd to award only nominal damages of HK$100, if at all.

93.  Unfortunately, on review of the pleadings, in relation to its claim of breach of covenant, the Plaintiff has only pleaded a claim for damages in the form of loss of enjoyment of the Plaintiff's premises during the period of fixing the damage (paragraphs 9.11 and 17(iii) of the Statement of Claim).  The Plaintiff's pleaded claim for damages suffered as a result of common law nuisance in paragraph 18 of the Statesment of Claim repeats paragraphs 9 and 17.  No claim for diminution in amenity value for the period during which the nuisance persisted has been pleaded.  The Plaintiff’s pleaded case is therefore different to the claim for diminution in the amenity value of its property as argued, and Counsel for the Defendant has objected to this. 

94.  No evidence has been adduced as to the expenses or costs which the Plaintiff will have to incur to arrange for accommodation to be provided for Mrs. Wong and her family during the period when the repair works are to be carried out.  The only evidence before the court is that it would take a period of two months for the Plaintiff to carry out the repair works, and the claim that the Plaintiff will suffer 30% diminution in the amenity value of its property during the period.  However, since the water seepage at G/F has ceased since 31^st July 2006, even if I am wrong that Let’s Go Investments Ltd applies to the present case, there is no longer any basis to allow the Plaintiff’s claim for diminution in amenity value when the nuisance no longer persists for the period of repairs.  I can accordingly make no award for this pleaded claim.

Award

95.  I therefore allow the Plaintiff to recover:

(1)	total costs of repairs in the sum of HK$ 330,850;
(2)	the sum of HK$ 87,050 incurred as surveyors’fees;
(4)	interest from the date of judgment to payment; and
(5)	costs of the action, to be taxed if not agreed.