皇河實業有限公司 v. WAN CHIU YUEN AND ANOTHER

DCCJ 4448/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4448 OF 2011

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D E C I S I O N

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1. That the parties saw fit to allow the present argument to escalate and to bring the argument before the court for determination causes dismay.

2. This is a water seepage case.  The plaintiff (“CIL”) and the defendant (“Wan”) are respectively owner of the 1^st Floor and the 2^nd Floor with roof of the property in question in the New Territories; hence the typical situation of one being immediately above the other.

3. CIL claims for loss and damage as a result of the water seepage from Wan allegedly discovered in 2009.  According to the pleading, the areas affected included the ceiling of the master bedroom and the second bedroom, the ceiling and wall of the sitting room as well as the ceilings of the kitchen and bathroom.  Wan denies liability.

4. One of the major disputes lies in the source of the seepage.  It is CIL’s burden of proof.  Relevant to that, leave has been given for the parties to adduce expert evidence.

5. The parties have engaged their own experts; and they have been liaising with each other for conducting tests in Wan’s premises.  It has boiled down to the test to be carried out in the kitchen, balcony, master bathroom and guest bathroom of Wan’s premises; and the result be monitored downstairs in the corresponding parts of the ceiling of CIL’s premises.

6. The experts however disagree and in fact argue about the test to be conducted.  Wan’s expert suggests water spraying test.  CIL’s expert used not to reject water spraying test; but now suggests water ponding test as the proper test instead.

7. For the purpose of ascertaining the source of water seepage in the present case, CIL’s expert opined that water spraying test is ineffective or unreliable whereas Wan’s expert opined that water ponding test is unnecessary, if not inappropriate.

8. By summons dated 20 October 2012, CIL applies for an order that Wan do make available his premises for CIL’s expert to carry water ponding tests at its kitchen, master bathroom, guest bathroom and balcony.  The duration of the test, which is also in dispute, is not specified.  The application went before the master who adjourned the same to be argued before a judge.

9. In my view, the court should not be asked to rule on the difference between the experts as to the test(s) to be conducted, which is a matter of methodology for their preparation of their expert reports.

10. The court may determine whether leave should be given for the obtaining and adducing of expert evidence on the basis of relevance.  Relevance means the areas where the court will be assisted by the expert evidence in making findings that tend to resolve the issues in dispute between the parties.

11. The court may also, particularly in the absence of agreement between the parties, give direction on the areas in which expert opinion is to be obtained and adduced or even precise questions to be answered by the experts.  Normally the court also gives direction as to the time table.

12. If parties’ co-operation is required, a party may be barred from adducing his or her own expert evidence without providing such co-operation.  In a case like the present one, an order may be made directing the party to allow entry and make available relevant parts of its premises for inspection and conduct of tests on terms.

13. Nevertheless, the court should not dictate or, in case of disagreement, determine for the experts the test or methodology for the purpose of arriving at their opinion.  Here the competing views do not lie simply in the test to be conducted but even for the same test its duration.  That is properly part and parcel of the expert’s opinion.

14. It is desirable that the experts agree on the appropriate test and methodology.  But if they cannot, they cannot.  It is not disagreement between the parties, but their experts.

15. In case of experts’ disagreement, the court’s concern is that the experts explain their competing views.  It becomes part of the court’s consideration in determining which expert’s opinion is to be preferred.  Counsel have not supplied authorities directly on this point.  Those cited by counsel for CIL are not on the point either.  But analogy can be drawn from the practice in personal injury related litigation (see Practice Direction 18.1 at §87).

16. For the purpose of the present application, numerous affirmations have been filed by the parties as well as their respective experts.  By asking the court to rule on the experts’ difference as per their affirmations; and to direct a test or methodology to be adopted for the purpose of preparing the expert reports, the parties are effectively carving out part of the experts’ opinion for interlocutory determination prior to trial.

17. The determination of the difference in the expert opinion at this juncture is particularly undesirable, because in view of the results of the test to be carried out and the expert reports to be compiled, it may turn out that the experts would need to be called at the trial.

18. I do understand the situation of CIL.  Its expert cannot conduct what in its opinion is necessary and appropriate test without the co-operation of Wan.  In such circumstances, the attempt and refusal to co-operate will no doubt be recorded in the contemporaneous correspondence and thus known by the court.  That however does not prevent the expert from stating and explaining its opinion why the test or methodology adopted by Wan’s expert is ineffective or unreliable as opposed to that proposed by it.

19. That CIL’s expert’s inability to conduct its proposed test and therefore to provide the result of such test does not necessarily mean that Wan’s test, and the opinion based on that, will be accepted.  Considering the expert opinion, even in such form, the court will still find the source of the water seepage, its extent and consequential damage by reference to the primary facts or inference from circumstantial evidence.

20. What I said above, therefore, is also what Wan has to bear in mind.  In a case like the present one, in view of discovery of seepage on the ceiling of certain premises, suspicion about the floor slab of the premises immediately above is the natural starting point.  The test proposed by the experts respectively serves not only the purpose of substantiating the suspicion but also that of ruling it out.  Co-operation only serves the purpose of both sides.  This is of course premised on the proposed test not being one that is exceptional. Neither test proposed is exceptional.

21. I understand that there may be genuine concern about the disturbance or even potential damage to the premises of Wan as a result of the test proposed by his opponent.  Such concern can be properly addressed, unless there is reason to believe that adequate undertaking to compensate in the event that Wan is proven right is not forthcoming.  In the present case, I understand that CIL has indicated its readiness to give such undertaking well in advance.

22. There is one last point about the expert I am concerned about. The expert engaged by Wan in its letter to those instructing it stated its opposition to the proposed test by CIL’s expert.  Irrespective of engagement by which party, experts are at all times supposed to give independent opinion to assist the court.  Experts should try to agree; but, if not, can disagree with reasons set out.  Experts never oppose, as if they take side with those who brief them.

23. That CIL embarked on an application to the court was as inappropriate as Wan’s refusal to co-operate.  As it transpires that Wan is now prepared to have the water ponding test conducted, the real disagreement lies in the duration of the test.  For the above reasons, I refrain from adjudicating on such disagreement between the experts.

24. For the parties to move forward, I shall give direction on the basis that the water ponding test will now be conducted.

25. Without prejudice to the trial judge’s assessment of the expert opinion at trial, I direct the parties to instruct their respective experts to conduct water ponding test at the areas as set out in CIL’s summons for duration as may be agreed by the experts; in the absence of which, Wan’s expert do nevertheless proceed with the test and CIL’s expert do nevertheless attend the conduct of the test for the purpose of preparing their expert reports.

26. As to the costs, I reserve that to be decided by the trial judge, who will have the benefit of hearing all the evidence, including the result of the test to be conducted and the competing views of the experts, in assessing which expert’s opinion should be preferred.