WONG MAN TAT v. CHAN YUEN MAN AND OTHERS

CACV 347/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 347 OF 2007

(On Appeal from DCCJ2853/2005)

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REASONS FOR JUDGMENT
AND ORDER FOR COSTS

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Hon. Cheung JA:

1.  I agree with the reasons for judgment and order for costs given by Yuen JA.

Hon. Yeung JA:

2.  I agree with the judgment of Yuen JA and have nothing to add.

Hon. Yuen JA:

3.  This is an appeal from a judgment of Deputy District Judge Anthony Chow in which he found that water seepage into the Plaintiff’s flat was caused by a leaking shower stall in the Defendants’ flat and ordered (in addition to an injunction) that the Defendants pay the Plaintiff damages for diminution in the value of the Plaintiff’s flat and for discomfort, inconvenience and disturbance, such damages to be assessed.

4.  At the conclusion of the hearing of the appeal, we dismissed the appeal, except for the appeal against the order that damages be assessed which order we set aside.  These are my reasons for that order.

Background

5.  The residential development known as Westlands Gardens was completed some 33 years ago.  The Plaintiff is the owner-occupier of Flat #1802 of Block C.  The Defendants are the owners of Flat #1801 where their family members reside. 

6.  Flats #1801 and #1802 are next to each other.  Their master bathrooms are back to back, with a partition wall in between (“the Partition Wall”).  The sanitary facilities (by which I mean the toilets, washbasins and originally, the bathtubs) are on either side of the Partition Wall.  In both #1801 and   #1802, the original bathtubs have been taken out and replaced by showers. In #1801, the shower stall comprised of tiled walls on two sides and a tiled floor.

7.  As a result of a complaint from #1702 (the flat immediately below #1802), it was discovered that there was water seepage at the bottom of the Partition Wall on the #1802 side.   The issue in the case was whether that seepage in #1802 (not the #1702 complaint) was due to leakage from the master bathroom of  #1801.

RITS tests

8.  Originally plumbers were called in, and then experts were retained by the respective parties.  The Plaintiff’s expert Dudley Surveyors Ltd in turn retained Building Diagnostic Consultants Ltd (“BDC”) to undertake 2 Rapid Infrared Thermographic Surveys (“RITS”) tests, one in 2004 and one in 2005.  Between the dates of the two RITS tests, the Defendants had performed some work on the floor (but not the walls) of the #1801 shower stall.

9.  The RITS tests were meant to show temperature changes over a surface.  A temperature scan was first taken of a surface in the master bathroom of   #1802.  Depicting different temperatures, different colours appeared on a print-out.  Water was then sprayed in the #1801 shower stall and into the floor drain of the #1801 master bathroom.  The idea was that if that water made its way to #1802, there would then be a cooler temperature on the #1802 surface.  That was in fact shown by a subsequent scan of the same surface in #1802.

10.  However, the reliability of these particular RITS tests was invalidated when the Defendants’ expert Mr Christopher Stanley of Infrascan (HK) Ltd showed that there were inconsistent temperature settings for the various colours in the print-outs.  As a result of this error on the part of those responsible for conducting the RITS tests, the judge rejected the RITS test results.  (The Defendants themselves wished to perform some tests but they were denied entry to #1802 by the Plaintiff.  However no application was made to the court for an order under Order 29 of the Rules of the District Court authorizing entry for inspection). 

Finding

11.  The judge found that there was water leakage from the shower stall in #1801 which caused the seepage in #1802.  At the test conducted by Dudley in 2004, it was noticed that when water was being sprayed inside the shower stall of #1801 (Photo No.11), a ‘watermark’ (meaning water stains) began to appear on the concrete floor slab of #1801 at the junction with the Partition Wall - the staining was revealed as a floor tile there had been removed (Photo No. 12).  The longer the testing time, the larger the stains (Photo No. 13). 

12.  The Defendants’ father who was present, acknowledged that water stains did appear on the #1801 floor, but alleged that the water had come from on top of the shower stall tiles.  The judge however preferred the evidence of Mr Albert Chan Kwok Wai a surveyor from Dudley, that the water came from under the tiles of the shower stall. 

13.  After this test in 2004, the Defendants performed some rectification work on the floor tiles of the shower stall but not the wall tiles.  I shall discuss this later in this judgment.

14.  The judge also rejected the theory advanced by the Defendants’ expert Prudential Surveyors International Ltd that the seepage in #1802 came from a broken water supply pipe within #1802.  The judge found that could not have been so because the water supply to that pipe had been disconnected some years previously.  The judge also noted that if water had come through that pipe, it would have spouted continuously due to water pressure.  Instead the seepage into the #1802 master bathroom was intermittent.

15.  As seepage in #1802 was not disputed and as the judge found that the shower stall in #1801 leaked, putting two and two together the judge found,  in the absence of evidence of any other cause of the seepage, that the seepage in #1802 was caused by the leakage in #1801.

Appeal

16.  The judge gave leave to appeal as he considered that his finding of fact had been based on a process of inference.

17.  The Notice of Appeal contains 15 pages of grounds of appeal.  Due to their prolixity, I will not repeat them here.  My reasons for rejecting the appeal on liability are as follows.   

18.  It is well-established that an appellate court will not lightly interfere with a trial judge’s finding of primary fact.  The clear evidence was that at the 2004 test, when water was sprayed inside the shower stall of #1801, water stains began to appear on the concrete floor slab at the junction with the Partition Wall.  The longer the water was sprayed, the larger the stains.  This clearly shows a connection between the two.  For the Defendants’ counsel to suggest that it happened as a “mere coincidence” is with respect, unreal. 

19.  The Defendants cannot seriously challenge the judge’s preference of the surveyor’s evidence to that of the Defendants’ father, i.e. the finding of fact that the water staining came from under the floor tiles.  So the clear evidence before the judge was that water sprayed in the #1801 shower stall had leaked towards the floor slab, right at the junction with the Partition Wall.   The master bathroom of  #1802 was of course just on the other side of the Partition Wall, and the damp area in #1802 which was the cause of the Plaintiff’s complaint was also at the junction with the Partition Wall.

20.  In the light of that evidence and the absence of any other cause of seepage, there was evidence which entitled the judge to make the finding of fact he did, that the seepage on the other side of the Partition Wall in #1802 was due to the leakage in the shower stall of #1801.

21.  I shall now deal with the Defendants’ main arguments on appeal.

Challenging the judge’s failure on fundamental principles

22.  I deal first with the Defendants’ argument that the judge had erred on fundamental principles.  I cannot see anywhere in the trial judge’s judgment any indication that he had failed to direct himself on the burden of proof or the standard of proof.  Nor is there any indication that he had made any presumptions of fact.  Basically the Defendants are asking this court to infer from the result (with which they are dissatisfied) that the judge failed to realize or apply such basic principles.  There is no justification for such an approach. 

23.  In any event a judge does not need to set out each and every piece of evidence adduced by the parties and evaluate it.  As Lord Hoffmann said in Biogen Inc v Medeva plc [1997] RPC 1 and repeated in Piglowska v Piglowski [1999] 1 WLR 1360:

“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy.  It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impressions which was made upon him by the primary evidence.  His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance .... of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation”.

Criticism of Plaintiff’s surveyor

24.  It would also be convenient to deal with the Defendants’ criticism of the Plaintiff’s surveyor now.  It was argued that the judge should not have accepted his evidence as some of the answers he gave in cross-examination showed that he was biased and incompetent and that affected his credibility.

25.  Appellate courts have said time and again that it is a matter for the trial judge, before whom evidence is unravelled in its living state, whether and to what extent he accepts a witness’ testimony, for a trial judge has substantial advantages over an appellate court.

“Such advantages can be, as Lord Shaw of Dunfermline put it in Clarke v Edinburgh Tramways at p.36, ‘sometimes broad and sometimes subtle’.  The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong” (TingKwok Keung v Tam Dick Yuen [2002] 1 HKC 601).

I can see nothing which persuades me that the judge’s acceptance of the surveyor’s evidence was “plainly wrong”.  Also I do not consider that the Plaintiff’s surveyor had made the “concessions” that the Defendants’ counsel alleges he had.  When he said that he was “not clear” about the Defendants’ expert’s alternative theory, his answers had to be taken in context as he was being cross-examined on the latter’s observations made at a time when he (the Plaintiff’s surveyor) was not present (Transcript p.66N- U).

Reliance on RITS  tests

26.  Whilst it is true that the Plaintiff’s experts had relied substantially on the (subsequently discredited) RITS tests, the Plaintiff’s case did not rest solely on the RITS tests as the surveyor stated in evidence (Transcript p.75Q). The other evidence (such as Photos No. 11-13) and the surveyor’s observations of the water staining in #1801 were independent of the RITS tests.  As the surveyor said in his testimony, had the RITS tests not been done, he would not have been “as sure” as he was but he would still have said in his report that the leakage from #1801 was the “likely” source , or “the greatest possibility”, or “the greatest suspicion” (Transcript p.78 C-G).  That is sufficient in a civil case where a plaintiff is only required to prove his case on a balance of probabilities.

No obvious increase in dampness in #1802 after spray test

27.  Still on the subject of the water spray test and its consequences, the Defendants argued that the surveyor said there was no obvious increase in the state of dampness in #1802 on a visual inspection after the water spraying inside the shower stall of #1801.  However that evidence is neutral.  He explained that as the seepage was light, it would have been very difficult for the naked eye to discern whether there was an increase in dampness (Transcript p.73Q-U).

Rectification of the floor of the shower stall

28.  The Defendants then argued that in any event after the 2004 test, they had rectified the #1801 shower stall, and the only test performed after that was the 2005 RITS test.  Accordingly they argued that there was no evidence to show that seepage into #1802 after the rectification of the shower stall was due to leakage in #1801.

29.  However it is clear that whilst some rectification work had been done to the floor tiles of the shower stall, no such work had been done to the wall tiles.  This was noted in the surveyor’s report of May 2005 (para. 2.2) and was shown in Photo 1 of that report.

30.  The Defendants said that they did not rectify the wall tiles of the shower stall because Dudley’s 1^st report stated:

“Our visual inspection and the water spray test/RITS arranged on 19 November 2004 concluded that the shower tray and the adjacent floor drain (to a lesser extent than the shower) in the master bathroom on Flat 1801 were both the sources of sustaining water leakage, causing the damp staining at the footing of the partition wall in the master bathroom of Flat 1802.   The leaking areas were likely to be at the concealed water drainage pipes under the floor surface”.

31.  Be that as it may, the Plaintiff’s surveyor is not the Defendants’ adviser and the fact remains that the 2^nd report (in which it recommended that both the wall and the floor tiles should be hacked up and a waterproof membrane applied) was provided to the Defendants two weeks before the issue of the writ.  The Defendants chose to ignore this and the fact of the matter is that the seepage in #1802 persisted.  (Of course there could be no visual inspection of the concrete floor slab of #1801 at the 2^nd test because it had been covered up by floor tiles by then).

Other premises

32.  I do not see anything in the Defendants’ argument based on the situation in #1701 and #1702.  There is no evidence that if the wall tiles in the #1801 shower stall were leaking, there must have been leakage into the downstairs flats, so that absence of that contradicted the Plaintiff’s case.  In fact there had been leakage into #1702 but this abated after the rectification of the floor tiles in the #1801 shower stall.  If anything, that showed that the #1801 shower stall did in fact leak and the leaked water had found its way into #1702.  But it does not follow that leakage from the wall tiles would not end up in #1802.

Government tests

33.  Similarly the Government colour water test results would not have assisted the judge in his deliberations whether the source of the leakage was the walls of the #1801 shower stall, because the colour water test was not  performed there but only on the water discharge areas (Transcript p.140F).

No entry into #1802

34.  This brings me to the Defendants’ argument that the judge failed to consider the fairness and justice of the situation because the Plaintiff had refused the Defendants’ experts entry into #1802 for tests.  One would expect legal advisers on both sides to be able to agree on mutual entry and inspection, but in the absence of agreement, it is always open to a party to apply to Court to authorize entry and inspection in an interlocutory application under Order 29 of the Rules of the District Court.  If a party fails to take advantage of this means at his disposal, he cannot really complain at trial and insist that the judge should somehow take this into account.

No evidence of alternative source of leakage

35.  As I said the judge was entitled on the evidence before him to connect the leakage from the #1801 shower stall to the seepage into the #1802 master bathroom on the other side of the Partition Wall.  The Defendants’ expert advanced one theory for an alternative source of the seepage into #1802 (i.e. the up feed potable water supply pipe in that bathroom), but this was rejected by the judge because the connecting part between the sub-floorslab water supply pipe and that up feed pipe had been cut (as shown in the enlarged photo at p.167 Trial Bundle) years ago.  There was also evidence before the judge that if this had been the cause of the leakage, the water would not have only seeped intermittently as the water pressure would have led to a continuous flow (Transcript p.68 Q-T).

36.  I should add as a matter of completeness that the Defendant’s complaint that the judge did not consider the evidence of Mr Stanley that there was no water seepage from #1801 was unjustified, as Mr Stanley was called as an expert on infrared scanning only, and not on water seepage, as he accepted (Transcript p.153J - p.154J). 

37.  In the circumstances, the judge was entitled to come to the conclusion that he did, and to give the injunction orders in the form set out in the Amended   Order. 

Damages

38.  However, with respect, the judge erred in the area of damages.  The Plaintiff had sought damages, particularised as follows:

“(a) Diminution in value of the Premises to be assessed;

  (b) Damages for discomfort and inconvenience and disturbance to be assessed;

  (c) Surveyor fee of $20,000.00;

  (d) Plumber charges of $15,000.00" 

39.  There had been no order for a split trial of liability and damages.  As such, it was incumbent on the Plaintiff to adduce all his evidence at the trial, including evidence on damages. 

40.  The judge dealt with item (d) the plumbers’ fees (which were not disputed), and decided correctly that item (c) the surveyors’ fees were part of the costs of the litigation and should not have been included as part of the claim for damages. 

41.  The Plaintiff did not adduce evidence on item (a) the diminution in value of the property (a matter on which one would expect valuation evidence), but sought “general damages” in the sum of $50,000.  It would appear from the written closing submissions of the Plaintiff’s counsel that this was for item (b). 

42.  The judge however ordered that damages for items (a) and (b) be assessed on a date to be fixed.  In the absence of an order for a split trial, it was not permissible for the judge to do that as it would give the Plaintiff a second opportunity to adduce evidence on damages (Born Chief Co [trading as Beijing Restaurant] v George Tsai and another [1996] 2 HKLR 188).

43.  Accordingly, we set aside the order that damages be assessed.  Although the Plaintiff’s counsel sought to argue that there had been some evidence of inconvenience in the Plaintiff’s witness statement, we did not allow him to pursue that argument in the absence of a Respondent’s Notice.

Order

44.  For those reasons I dismissed the Defendants’ appeal except in respect of the order for assessment of damages.  Having heard both counsel on the question of costs and looking at the matter in the round including the time spent on the different issues, I would order that the Defendants pay the Plaintiff 90% of his costs of the appeal.