PUTAI LTD v. YAU LEE HO AND OTHERS

CAMP 36/2018

[2018] HKCA 298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 36 OF 2018

(ON AN INTENDED APPEAL FROM DISTRICT COURT CIVIL ACTION NO 2666 OF 2013)

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J U D G M E N T

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Hon Yuen JA:

1.  This is an application by the defendants for leave to appeal against a Judgment of DDJ Daniel Tang given on 19 December 2017 (“the Judgment”), in which he found them liable for damage caused to the plaintiff’s unit (“1B”) which is located one floor below the defendants’ unit (“2B”) in a residential building of which the Third Party was the incorporated owners. 

2.  Section 63A of the District Court Ordinance, Cap. 336 provides that leave to appeal from the District Court would not be given unless the applicants have a reasonable prospect of success, or should be heard for other reasons in the interests of justice.  Leave to appeal was refused by the judge on 15 March 2018.

Background

3.  On 13 March 2013, there was a backflow of waste water into the water closet of 2B.  Unit 2B was flooded with the waste water, which then seeped into the ceiling of 1B.  The judge found (after considering evidence from three experts at the trial) that the water closet was connected to a drainage pipe on the external wall of the building, which was maintained by the Third Party.  The drainage pipe was blocked. On the same day, a plumber called to the scene by the management office found a towel in the drainage pipe.  After the towel was removed, the backflow stopped.  No further remedial steps were taken.  The backflow has not recurred. 

4.  The judge found that the blockage of the drainage pipe by the towel was an accident.  There was apparently no evidence as to how long the towel had been there.  Accordingly the judge found the Third Party not to blame. 

5.  However the defendants had been informed by their tenant of the backflow since about 9 am that morning, and the judge found that they had not taken adequate steps to prevent seepage of the water into the unit below (1B), which continued from about 9 am until about 5:30 pm.

6.  The judge held that the defendants’ failure to take adequate steps amounted to a breach of clause 10(c) of the DMC, in which the defendants had covenanted not to permit anything in their unit to cause damage to other occupiers of the building.

7.  The judge assessed the damages at $64,900.  There is no appeal from the quantum.

Grounds of appeal and Discussion

8.  The grounds of appeal can be summarized and discussed under the following broad categories.

(a)   During the trial (on 13 April 2016), the judge permitted the plaintiff to amend its statement of claim to delete “at the bathroom area” in §3.  This deletion had the effect of widening the area alleged to have been affected.  The defendants say that this amendment should not have been allowed.

9.  In my view, there is nothing in this ground.  This was a case management decision which the judge was entitled, in the exercise of his discretion, to make.  As the judge explained in the Judgment, he gave leave to amend because the amendment did not take the defendants by surprise.  The area affected had been shown clearly in photographs and videos disclosed before the start of trial.  

10.  In any event, no prejudice to the defendants was caused by the amendment because the trial was then adjourned for more than three months.  The defendants had adequate time to prepare their case to deal with the amendment.  And in fact they did file supplemental evidence and a further expert report during the adjournment.

(b)   The defendants also submit that the judge was wrong in his findings of fact that the seepage into 1B was caused by the defendants.  They relied on their expert who contended that there may have been other causes of seepage, eg it was possible that there was a water pipe in the false ceiling of 1B. 

11.  In my view, in the peculiar circumstances of this case, this argument is artificial.  A plaintiff does not need to prove his case beyond reasonable doubt.  The civil standard is simply the balance of probabilities. 

12.  The plaintiff does not need to prove that the seepage could not possibly have come from any other sources in the building.  This is not the usual type of case where water stains are found on a ceiling, and the question is whether for example the stains were due to a leakage over a period of time from the unit directly above, or from another unit on an upper floor (when experts may suggest certain tests to be performed).  Further, the defendants did not plead that any building works in 1B had caused the water seepage on the ceiling.  

13.  In the present case, the seepage into 1B’s ceiling started at about 9:00 am on 13 March 2013, on the morning when the backflow into 2B’s water closet, and the flooding of 2B, occurred.  The seepage ended after the backflow and the flooding of 2B stopped.  There was no evidence that flooding occurred at any other unit in the building on that day.  In these circumstances, the judge was entitled to hold that exact details of the passageway(s) whereby the waste water made its way from 2B to 1B made no difference to the defendants’ liability

(c)   The defendants also submit that the judge erred in concluding that their efforts to prevent water seeping down to 1B were inadequate.

14.  This is a finding of fact.  It is well-established that an appellate court would only interfere with a finding of fact if it was palpably wrong.  When no witness statements or transcripts of the evidence relating to the steps taken by the defendants were provided to this court with the application for leave to appeal, I do not see how this court can be asked to hold that there is a reasonable prospect of the applicant succeeding on an argument that the judge was plainly wrong in his finding of fact.

(d)   The defendants also submit that the judge should have found the Third Party liable in allowing the drainage pipe to be in disrepair for a long period of time, “resulting in the blockage” as well as the backflow into 2B and seepage into 1B.

15.  Again this submission is artificial.  The judge was entitled to find on the evidence that the blockage was caused by the towel, as the backflow stopped after the towel was removed.  There was apparently no evidence as to how long the towel was in the drainpipe.  In the absence of evidence showing that the towel had been there for a period of time and should therefore have been detected had the IO performed regular maintenance, the defendants cannot begin to prove that a breach of the IO’s duties of management had caused the blockage.   

Order

16.  For the reasons set out above, I would dismiss the summons for leave to appeal with costs.  Having considered the statements of costs by way of summary assessment, I would order that the defendants pay the plaintiff costs of $55,000 and the IO, costs of $30,000.

Hon Poon JA:

17.  I agree with the judgment of Yuen JA.