DCCJ 3566/2004
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 3566 OF 2004
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BETWEEN
TONG CHI YING (唐子鷹)
1st Plaintiffnd Plaintiff
And
SHUM PING KUEN BENSON (岑秉權)
1st Defendant
WU OI WAN (胡愛雲)
2nd Defendant
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Before: Deputy District Judge R. Yu in Court
Date of hearing: 9, 10, 11, 14 June & 5 July 2010
Date of handing down Judgment: 24 September 2010
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JUDGMENT
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1. This is a water leakage case. The 1st and 2nd Plaintiffs are husband and wife. They are and were at all material times the registered owners of Flat D, 13th Floor, Block 3 of The Grand Panorama, No.10 Robinson Road, Hong Kong (“Flat 13D”). They have been residing in Flat 13D at all material times until they moved out in November 2005, when Flat 13D was let out.
2. The 1st and 2nd Defendants were at the material times the registered owners and occupiers of the flat immediately above Flat 13D, namely, Flat D, 14th Floor, Block 3 of The Grand Panorama, No. 10 Robinson Road, Hong Kong (“Flat 14D”). The layout of Flat 13D is the same as Flat 14D.
3. As co-owners, there is no dispute that the Plaintiffs and the Defendants are bound by a Deed of Mutual Covenant dated 2 September 1992 (registered in the Land Registry by memorial no. 5426866) (“the DMC”). The Plaintiffs rely on the following covenants :
(i) Under Clause 12 of Section V of the DMC :
“Each Owner shall maintain his Unit in good repair and condition to the satisfaction of the Manager and in such manner so as to avoid any loss, damage, nuisance or annoyance to any other Owners.
(ii) Under Clause 16 of Section V of the DMC :
“No Owner will use or permit or suffer his Unit to be used for any illegal or immoral purpose nor will he do, cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance to or cause damage to the other Owners or occupiers for the time being.”
The Problem
4. At Flat 13D, there is a guest toilet. According to the Statement of Claim, since about November 2001, watery liquid started to seep through the ceiling of the guest toilet creating nuisance to the Plaintiffs and their family.
5. It is the case of the Plaintiffs that the water leaked from Flat 14D into their guest toilet and the Defendants are liable to them for damages. There are 4 causes of action :-
a. Defendants are in breach of clauses 12 and 16 of the DMC in failing to maintain Flat 14D in such manner so as to avoid any loss, damage, nuisance or annoyance to other owners;
b. Defendants are in breach of section 34H(1) of the Building Management Ordinance, for failing to maintain Flat 14D in good repair and condition to prevent leakage;
c. The Defendants are negligent for failing to maintain Flat 14D in good repair and condition or to take reasonable care or precaution to prevent leakage or water from flowing or leaking from Flat 14D into Flat 13D; and
d. Common Law nuisance.
6. They also pleaded the principle of Rylands v. Fletcher
7. Initially, the Plaintiffs also claimed injunction against the Defendants which had been abandoned before the trial. And indeed, the only losses claimed by the Plaintiffs were for the costs of replacing the false ceiling at the guest toilet, and general damages for inconvenience and discomfort.
Issues
8. As set out in the Joint Statement of Issues in Dispute, the first issue is whether there was water seepage or leakage in or through the ceiling of the guest toilet of Flat 13D.
9. To be very specific, there were 4 periods of leakage according to the complaints of the Plaintiffs –
a. 19 November 2001 to 27 November 2001;
b. 7 October 2002;
c. 20 April 2003 to June/July 2003; and
d. 8 April 2004
10. The duration of leakage for periods a, b and d are relatively short, in particular periods b & d which occurred on one day. The main complain is in relation to period c, for a period of about 2-3 months.
11. I believe there was no dispute that there was water leakage at Flat 13D guest toilet. The matter in dispute is how serious was the leakage and where did the leakage originate. Hence the 2nd Issue in Dispute is whether the alleged seepage originated from Flat 14D. And it was not disputed that the burden rest on the Plaintiffs to prove that water leaked from Flat 14D to the guest toilet of Flat 13D.
12. And if the alleged leakage of water originated from Flat 14D, the final question is whether the leakage has caused any nuisance or annoyance to the Plaintiffs, or any damage to the Plaintiffs. It is their case that they could not and did not use the guest toilet since April 2003 until shortly before they moved out in 2005. It was not only inconvenience, but given the leakage occurred with the period of SARs, the Plaintiffs had great concern for their health and the health of their family members. Or to be more specific, the Plaintiffs were claiming for loss of inconvenience and discomfort. They also claim the costs of replacing the false ceiling for the guest toilet.
13. The evidence before me includes the oral evidence of the 1st and 2nd Plaintiffs, the Record of the Management Office on the leakage complained by the Plaintiffs at the material times, and expert evidence.
The Plaintiffs’ evidence
14. The 1st Plaintiff adopted his witness statement dated 8 October 2008 as his evidence in chief. When being cross examined, the 1st Plaintiff explained that he heard the dripping sound of liquid on the false ceiling in the guest toilet that alerted him water leaked or seeped into Flat 13D. While he mentioned in his witness statement that the 19 November 2001 incidence was the first occurrence of leakage, when he was crossed-examined by Mr. Cheung, counsel for the Defendants, he said there had been leakage in 1998 to 1999. He had not reported to the Management Office. He spoke directly with the occupants at Flat 14D and the leakage stopped. Anyway, this was not relied on by the Plaintiffs for the claim herein.
15. At paragraph 4 of his statement, he set out the incidences of leakage when the Management Office was informed. They were in line with the Management Office record which I shall come to later. I also note that the complaints to the Management Office (other than the complaint in 2004) were made by the 2nd Plaintiff and I should consider the complaints in the evidence of the 2nd Plaintiff.
16. The 1st Plaintiff said in his evidence that on 8 April 2004, water seepage and dripping happened again and he had complained to the Management Office.
17. On the leakage occurred in 2003, the 1st Plaintiff also said in his statement that during the SARs period in mid-2003, one day was too many to wait for the repair. They had reported to the Management Office whenever water seepage/leakage was discovered. He complained that the Defendants did not attend to repair until June 2003. After the Defendants claimed they had repaired the toilet in June 2003, he requested for a water test be carried out, and was refused. He complained that the Defendants even refused to co-operate with the Food and Environmental Hygiene Department (“FEHD”) to arrange a water test.
18. The 1st Plaintiff said he should be allowed to attend Flat 14D to carry out water test. After commencement of these proceedings, he had applied to Deputy Judge Yip (as he then was) for an order that the Plaintiffs be permitted to carry out water test at Flat 14D. Deputy Judge Yip directed a water test be conducted by FEHD in 2006. I shall come to this report with the expert evidence. The 1st Plaintiff said FEHD issued a Nuisance Notice dated 9 August 2006 and the Defendants had carried out repair. After that, the Plaintiffs were not aware of any incidence of leakage.
19. When being cross-examined by Mr. Cheung, the 1st Plaintiff said there was one or two leakage incidence between April 2004 and November 2005. But he had not complained to the Management Office.
20. It was confirmed by the 1st Plaintiff that he let out the premises by end of 2005 and there was no complaint from the tenant for leakage. While the Plaintiffs claimed the costs for replacing the false ceiling in their guest toilet, the 1st Plaintiff confirm that he had not replaced the false ceiling which was still in use. He said since he started the action, he had not replaced the false ceiling. He explained that the replacement had been deferred pending the conclusion of this case. He agreed that Flat 13D had been decorated before letting out.
21. And on the leakage on 20 April 2003, the 1st Plaintiff when being cross-examined, he added that he saw the water dripping down from the ceiling.
22. The 2nd Plaintiff gave evidence. She adopted her witness statement dated 8 October 2008 as her evidence in chief. As remarked by Mr. Cheung, her statement was exactly the same as the 2nd Plaintiff’s statement. She also repeated the same description of the leakage at paragraph 4 of her statement.
23. The 2nd Plaintiff also confirmed that there was leakage in 1998 and 1999. It was settled. She had reported to the Management Office in 1998 but not for 1999. She explained that she did not mention it in her statement because she was not sure if the Management Office had any record. Anyway, these are not the matters I need to take into consideration as they are not relied on by the Plaintiffs according to their pleadings.
24. According to the evidence of the 2nd Plaintiff, the seepage started in 19 November 2001. She heard dripping noise in the false ceiling of the guest toilet. She reported to the Management Office.
25. This was the first complaint of leakage. On 21st November 2001, the 2nd Plaintiff complained again that the seepage continued and the Management Office informed the Defendants. There were further complaints by the 2nd Plaintiff on 26th of November 2001.
26. According to the record of the Management Office which I shall refer to later, they sent a contractor to carry out leakage test in the guest toilet of Flat 14D on or about 27 November 2001. No water leakage was found by the contractor. And for some unknown reasons, water leakage stopped.
27. For the November 2001 leakage, on cross examination, the 2nd Plaintiff confirmed that she did not see the leakage. She only heard the dripping sound, both on 21st and 26th of November of 2001.
28. She agreed that there was no leakage of water between 27 November 2001 and October 2002. On 2 October 2002, she again heard the dripping sound. It stopped thereafter. This appeared to be a one single complaint and there was no record of any follow-up.
29. On 20 April 2003, she again heard the dripping sound. From 20 April to 2 May 2003, she said there were continuous leakages from time to time.
30. And for a period of time, she had to remove the false ceiling and to collect the dripping water with a bucket.
31. It was her evidence that on 5 May 2003, 6 May 2003, 24 May 2003 and 30 May 2003, dripping was found on the ceiling of the guest toilet and on each occasion, she had complained to the Management Office.
32. There was record by the Management Office that the 2nd Plaintiff has complained to them of water leakage on 26 June 2003. But this was not mentioned in her witness statement.
33. And the last water leakage according to the Plaintiffs was on 8 April 2004, which was again a single incidence. On cross examination, the 2nd Plaintiff confirmed that she was not in Hong Kong on 8 April and she did not complain to the Management Office. It was complained by the 1st Plaintiff.
34. The 2nd Plaintiff also repeated the evidence of the 1st Plaintiff on the disturbance by the leakage and the reason why they had not used the guest toilet from April 2003 to shortly before they moved out in November 2005. I do not intend to repeat.
35. And the 2nd Plaintiff said in cross examination that on 20 April 2003, she saw the water dripping from the ceiling. She marked the position on exhibit “P-2”. She agreed with Mr. Cheung that she has not mentioned the point in her witness statement.
The Defendants’ Evidence
36. Only the 1st Defendant gave evidence. He adopted his witness statement dated 1 September 2008. He also recalled the leakage in 1998. According to his evidence, that was caused by leakage in the external wall.
37. The 1st Defendant said there were 5 members at Flat 14D, the Defendants, their 2 children, and 1 maid. There were 2 toilets in Flat 14D. The guest toilet was mainly used for bathing by all 5 members. The toilet at the master bedroom was for laundry.
38. The evidence of 1st Defendant was general background and what he had done to assist the arrangement of water test. As he accepted in cross examination, he did not know the cause of the leakage. He agreed that it could be from his toilet and therefore he wanted to find out the source by the expert.
39. The 1st Defendant also confirmed that after the test carried out by the expert Mr. So as hereinafter mentioned, he had replaced the sealant surrounding the bath tub.
Record by Management Office
40. The Management Office of The Grand Panorama had records of the complaints lodged by the Plaintiffs on leakage. I would call these the MO Record. They had been produced with consent of the parties. They also appeared as attachment to the reports of both expert witnesses. I understand while source of leakage is in dispute, there is no dispute that the MO Record is a correct record of the complaints made by the Plaintiffs and the actions taken by the Management Office. I do not intend to repeat all the records but by some matters would assist me later.
41. The MO Record shows that some of their staff attended Flat 13D on 19 November 2001 and opened the false ceiling. The staff recorded that the bathtub of Flat 14D, which was the ceiling of Flat 13D toilet, was dry. But water was collected on the false ceiling. The Management Office sent a contractor to carry out leakage test in the guest toilet of Flat 14D on or about 27 November 2001. No water leakage was found by the contractor. No further record of complaint was recorded until October 2002.
42. There was a complaint to the Management Office on 7 October 2002 for leakage. No follow-up action by the Management Office was recorded.
43. According to the record, complaint by the 1st Defendant was recorded on 20 April, 2003. The staff of the Management Office had opened the false ceiling and found that the ceiling and the false ceiling were both wet, and there was dripping of water.
44. On 24 April 2003, the Management Office instructed a contractor to inspect the toilet. He found that the ceiling was dry. When he looked into the chamber of the bath tub of Flat 14D, there were water droplets.
45. The Management Office reported the incidence to FEHD. There was an inspection by FEHD on 2 May 2003. No test was carried out. And the Management Office proceeded to arrange a water test by an expert.
46. On 5 May 2003, as there was heavy rain on 4th and 5th May 2003, the Management Office enquired with the 2nd Plaintiff if the leakage had worsened. The answer was negative. And on 5 May 2003, they were invited by the 2nd Plaintiff to inspect the toilet and found that water was dripping through the false ceiling.
47. The MO record showed that the dripping stopped around 7 May 2003.
48. The inspection was conducted by Mr. So on 17 May 2003. There was no dripping until 24 May 2003, when the 2nd Plaintiff again complained of dripping. And on 30 May 2003, the 2nd Plaintiff complained that the leakage continued.
49. On 27 May 2003, MO Record showed that the 2nd Defendant agreed to carry out repair.
50. Around 5 June 2003, the 2nd Plaintiff confirmed that there was no more dripping.
51. On 26 June 2003, the 2nd Plaintiff complained again of dripping.
52. On 2 July 2003, the 2nd Defendant informed the Management Office that they had carried out the repair as recommended by Mr. So.
53. Since early July, there was no record of further complaint of dripping. The MO Record showed that between August 2003 and March 2004, the Plaintiffs requested for another water test. The Defendants refused. There was record of liaison by the Management Office with an attempt to resolve the issue on a further water test.
54. The last record was a complaint by the 1st Plaintiff on 8 April 2004 that there was leakage. The security guard who inspected Flat 13D noticed that there was water dripping. There were further arrangements for water test by FEHD.
Expert Evidence
55. The expert called by the Plaintiffs is Mr. Simon So (“Mr. So”) of Messrs. WSP Hong Kong Ltd. He has prepared 2 reports. His expert knowledge and qualification are challenged.
56. An expert may acquire sufficient knowledge of the subject matter by study or experience so as to render his opinion of value in resolving the issue before this Court. Mr. So has since 1997 been registered as a member of the Hong Kong Institute of Engineers in civil and structural engineering. Since about 1999, he has been qualified and registered as a Registered Professional Engineer for civil and structural engineering. He has been working with WSP Hong Kong Ltd. since about 1992 to check defect in building construction, including leakage.
57. While he has monitored other surveyors to carry out test for leakage, he has not carried out any test himself. Admittedly, this was the first water test he carries out in domestic premises. Even when one has not performed the test before, it does not preclude him to be an expert. That is a matter to be taken into account in assessing the weight of his evidence. Having heard both counsels, I rule him in as an expert, but subject to the challenge on the weight and reliability of his evidence.
58. In his first report dated 27 May 2003, it was prepared on the instruction of the Management Office. Mr. Koo submitted that he is impartial and reliable. I believe all experts have the prime duty to assist the Court and notwithstanding who pay their fees, they must be impartial. (Order 38 Rule 35A of the Rules of the District Court.)
59. Mr. So was instructed by the Management Office to check the source of the leakage. He had designed a test to be carried out at 3 stages. Before the test, Mr. So inspected the guest toilet of Flat 13D. He observed that there were rust stains and surface crack at the concrete ceiling. There were crystal-like residues that were probably the remains of the solute of droplets through the crack. At the time of inspection, there was no water seepage observed.
60. As recorded in his report, at stage one, Mr. So and his team sprayed water with pressure of no less than 30 psl onto the external wall of the guest toilet of Flat 14D for a period of 1 minute at sectors on the external area not greater than 0.45 square meters each. At the examination by counsel, we were given to understand that since there was no work-platform on the external wall, what they did were to stand next to the window to take the nozzle outside and sprayed against the external wall as aforesaid.
61. Mr. So reported that there was no water seepage observed at Flat 13D after 30 minutes from when he started the testing. In the examination by counsel, he said he considered it sufficient to wait for 30 minutes before he moved onto the next stage of the test.
62. At stage two, the bath tub was filled with water for 5 minutes and the water was allowed to drain out from the down pipe. Again no seepage was observed at Flat 13D within 30 minutes from starting of the stage two testing.
63. At stage three, the wall, the bay, and the fixing of the tap above the bath taps were continuously sprayed with water for 5 minutes. He opened the inspection panel (生口) to the bath tub and looked inside the chamber. He recorded that the wall below the tub looked wet during the test. He had identified the position on one photograph taken by him. But on cross examination, he admitted that he had not touched the wet point as it was far away from the free opening.
64. Mr. So also reported that water seepage was observed through the crack at concrete ceiling of Flat 13D below the bath tub area after the stage three of the test. Mr. So concluded that there was high probability that there was somewhere on the tiled wall, or the bay, or at the connection of tap into wall, to have point of leakage that allowed water to leak into the bath tub chamber, and seeped through the floor crack to the ceiling of Flat 13D.
65. Mr. Cheung submitted that Mr. So had not studied the subject of leakage testing. He had no experience in carrying out water test. And in particular, he did not know the thickness of the wall on which he conducted a water test. His report should not be believed.
66. I bear these criticisms in mind. At this stage, I note that Mr. So found 3 possible sources of leakage – from external wall, from drainage, and from the sealant surrounding the bath tub. Mr. So has prepared a supplemental report in response to the expert report by Mr. John Yip. And I shall come to Mr. So’s second report later herein.
67. The Defendants also called an expert, Mr. John Yip (“Mr. Yip”), a registered Professional Surveyor. Mr. Koo raised no objection to his qualification as an expert and I also admit him as an expert witness.
68. Mr. Yip prepared a report dated 6 November 2009. He has not visited Flat 13D or Flat 14D. He had been provided with a number of documents, including the said report by Mr. So and the record by the Management Office.
69. Based on the record of the Management Office and the rainfall record kept by the Hong Kong Observatory, he commented that the water leakage as complained by the Defendants coincided with some days when there was heavy rainfall. He was of the view that water seepage was caused by leakage from the external wall.
70. Mr. .Yip also commented on the report prepared by Mr. So. He opined that at stage one, the testing method, location of water nozzle, location of scaffolding and location of testing personnel were not clear. The conclusion that Mr. So made was doubtful.
71. There was no comment on the stage two testing. On the stage three test, Mr. Yip commented that while Mr. So reported that the wall below the bay looked wet, there were no photographs taken which could be used for direct comparison before and after the water testing. He also commented that according to the photographs taken by Mr. So at Flat 14D, the condition of sealant and wall tiles were in good condition and the chance of water seepage from the tiled area to the area underneath the bath tub was very low.
72. On the seepage found by Mr. So after the test, Mr. Yip commented that it was possible that water seeped into the external wall at the stage one and appeared as seepage at the stage three.
73. Mr. Yip also commented that according to the information from the Defendants, the guest toilet was used by 5 persons for bathing every day. Any seepage should be serious. But the seepage as reported was very minor and occurred infrequently. He therefore commented that the water leakage did not originate from the guest toilet of Flat 14D. He concluded that rain water leakage from external wall is another possible source of water seepage that caused the leakage symptom in Flat 13D.
74. Mr. Koo has cross-examined Mr. Yip in details. Mr. Koo submitted that Mr. Yip alleged that there was no visible defect as shown in the photographs was not correct. And he could not exclude the possibility that water could leak through defects that were invisible to human eyes.
75. Mr. Koo also commented that there were ample factual evidence proving and indicating that water leakage did not correspond to the occurrence of rainfall. And there was no water leakage recorded from July 2003 to 8 April 2004 despite it recorded significant rainfall on diver dates during the same period.
76. In the second report prepared by Mr. So, he disputed with some findings of the report prepared by Mr. Yip. He set out examples when there was leakage report but with no heavy rainfall. On the comments made by Mr. Yip against the stage one testing method adopted by Mr. So, Mr. So explained that spray of water did not need any special technician to perform. On the stage two test, Mr. So noted that his conclusion was made in 2003 while the report of FEHD made in 2006. While they had different conclusion, the difference could be due to the changes in time.
77. And for stage three, Mr. So attached a photograph of the ceiling of Flat 13D toilet to show the water dripping discovered at the end of the test. And Mr. So also attached a photograph of the Flat 14D toilet to show that there was one defect in the peripheral sealant.
Report from FEHD
78. Pursuant to the Order of Deputy Judge Yip, FEHD conducted a water test at Flat 14D. The report was not produced as an expert report. It has been referred to in the report by Mr. Yip and the second report of Mr. So.
79. Mr. Cheung argued against the finding of this report and Mr. Yip has commented on the same. Mr. Koo did not rely on this report in his closing.
80. I agree with Mr. So that the finding of FEHD in 2006 did not necessarily reflect the piping condition of Flat 14D in 2003 to 2004. I do not find it helpful and I would not attach any weight to the conclusion.
Finding on Source of Leakage
81. The argument of the Defendants as set out in the closing of their counsel, Mr. Cheung is two folded. First, he argues that the cause of leakage of each period could be different and should not be dealt with as one matter. And secondly, the Plaintiffs cannot prove that the cause of leakage was not from the external wall or even other cause.
82. I believe it cannot be disputed that there was seepage in the guest toilet of Flat 13D and counsel for the Defendants correctly conceded the point. The crux of this litigation is what is the source of the leakage?
83. It is true that if there was only proof of seepage, one could not conclude that the water must leak from Flat 14D into Flat 13D. (Cheung Sau Ling & Other v. Cheng Lai Chong
84. We have two expert witnesses. But only Mr. So has carried out the test at the material time. And Mr. Yip has not even visited the 2 Flats in issue. Hence his evidence is at best a rebuttal evidence or evidence against the finding of Mr. So.
85. The finding of Mr. So is directly on the source of leakage. Mr. So concludes that water leaked from the wall tiles or bath tub into the bath tub chamber and then into Flat 13D. The accuracy of his tests has been challenged by Mr. Yip and by Mr. Cheung.
86. To begin with, I have to agree with Mr. Yip that there could be improvement on stage one test. We have no idea of the exact area on the external wall that Mr. So tested. And it is not disputed by both experts that the better mode of testing the external wall with water spray under pressure is to first build a platform outside to allow the operator to spray the water. Mr. So cannot be blamed because the Defendants refused to erect the necessary platform.
87. And there is no reason given by Mr. So why waiting for 30 minutes would be sufficient to differentiate between the effects of possible leakage from different areas under test. I agree with Mr. Yip that some leakages of water could appear quickly, and some could take hours to travel from the defective point to the leak out point. A reliable test must cater for different conditions, with reasons given. But Mr. Yip has not mentioned what would be a reasonable time gap between stages. The point would be a factor for my consideration of the reliability of the conclusion of Mr. So.
88. With these drawbacks, is the report useful at all? I am sure Mr. Cheung, counsel for the Defendants, would invite me to ignore the report all together. But I would think that the report is helpful in at least two aspects. Firstly, Mr. So opined that there are 3 possible sources of leakage:- a) from defect on the external wall, b) from defect in the piping leading to the bath tub, and c) from defect in the wall tiles and sealant of the bathroom. Hence he designed the test to cover these 3 possible sources. And Mr. Yip has no objection to the test conduct only on these 3 possible sources. Mr. Yip does not suggest that there could be another possible source of leakage. In fact, his comments are directed against the 3 sources of leakage as suggested by Mr. So but Mr. Yip come to a different in that leakage of rainwater through the external wall was another possible source of leakage. Hence I could safely assume that leakage could arise from one of these sources.
89. And further, I accept the evidence of Mr. So that at the end of all stages of the test, water leakage occurred at Flat 13D. Mr. So has confirmed that before the test, the ceiling of Flat 13D was dry. I found that the leakage must be resulting from some stages of the water test carried out by Mr. So.
90. For the piping to the bath tub, if there is leakage, given that it must be serving Flat 14D exclusively, it would be within the duty of the Defendants to maintain. (See So John & Anor. V. Lau Hong Man & Ors
91. And for any leakage from the sealant, or the wall tiles in the guest toilet of Flat 14D, these are areas within the control of the Defendants who would be obliged to maintain.
92. The main argument of the Defendants, and the evidence of Mr. Yip, was that the leakage could have occurred at defects on the external wall. It is part of the common area and therefore, the Defendants have no obligation to maintain. I could not find on balance that the leakage was due to failure on the part of the Defendants to maintain Flat 14D.
93. But if the leakage does not arise from defects on the external wall, the source must come from area and utensil within the control of the Defendants who have a duty to maintain under the Deed of Mutual Covenant of the Building. When I am considering if water leaked from Flat 14D, I am entitled to look at all the circumstance to draw a conclusion on balance of probability.
94. What Mr. Yip said about the condition of the sealant and wall tiles in the guest bathroom as observed from the photographs could not be helpful. After all, it was a photograph and it was unfortunate that he had not visited the site for inspection. Any conclusion based purely on a photograph is not reliable.
95. Mr. Yip did not exclude the possibility that leakage came from pipe damage or bad sealant. What he said was that Mr. So could not safely conclude that the water leakage was from the defective sealant or wall tiles. He argued that given the number of people using the bathroom, there was no reason for leakage occurring from time to time. The leakage should be more serious. His main conclusion was that leakage of rain water from external wall was another possible cause of leakage.
96. There is force in this argument. But not all the days of leakage correspond with rainy days. And, as Mr. Koo correctly summarized, there were no leakage found during the period from July 2003 to 8 April 2004 despite there were heavy rainfall recorded in this period. And more, there was no evidence or suggestion that the Management Office had carried out any remedial work to the external wall and I have to presume the condition would be the same as when Mr. So carried out the test. The chance of defect in the external wall would be low. And if water did not leak through the external wall, it must come from defects from the sealant or the piping.
97. On the other hand, after Mr. So carried out his test, the Defendants did replace the sealant despite they disagreed with the report. Leakage stopped except for a day in April 2004. This supported the contention of the Plaintiffs that there is a defect in the sealant causing leakage.
98. And I would also refer to the MO Record. On the inspection on 24 April 2003, when the contractor looked into the chamber of the bath tub of Flat 14D through the inspection panel, there were water droplets. It shows that water had leaked into the bath tub chambers.
99. In view of the above, and on the balance, I come to the conclusion that the leakage was from defects in the piping or the sealant at the guest toilet of Flat 14D causing water to leak into Flat 13D. The conclusion is applicable for all 4 periods.
100. Mr. Cheung also submitted that the floor slab was part of the common area. I believe he argues that if Mr. So is correct that water seeped through the sealant into the bath tub chamber, if it could pass through the floor slab, there must be defect in the floor slab which the Defendants had no duty to maintain.
101. My short response is that the Plaintiffs would still be liable. The fact remains that water inside their toilet should not be allowed to escape into the bath tub chambers or leak through piping. Concrete could stand water, but not a known waterproofing material.
102. It cannot be disputed that the Defendants have a duty under the DMC to maintain their premises and not to cause any loss damage nuisance or annoyance to other co-owners. They must be in breach of their duty to maintain.
Any Damage or Loss
103. On the above finding, I conclude that the Defendants have been in breach of their obligation under the Deed of Mutual Covenant. Alternatively, they would be negligent in not maintaining the facility of their toilet to prevent leakage. I have to consider if the Defendants are liable to the Plaintiffs for any damages.
104. On damages, the Plaintiffs claimed 2 items. On specific damages, they claimed a sum of $10,000.00 to replace the false ceiling. But there was no evidence before me to say that the false ceiling has to be replaced. The question must arise – could the false ceiling be clear and reused? I would expect, even if no expert evidence is introduced, there should be evidence from the Plaintiffs to explain why it has to be replaced and the damages. There is nothing except some photographs showing that there were stains to the metal false ceiling.
105. It is not disputed that the false ceiling has been in used from 2005 until now. That is prima facie evidence that the false ceiling could be used. I am not persuaded that the ceiling has been damaged or has to be replaced. I make no award for this claim.
106. The main claim by the Plaintiffs was for general damages for discomfort and inconvenience.
107. Mr. Cheung argued that the Defendants would not be liable for nuisance claim unless they had prior knowledge and taken no action within a reasonable time. I was referred to the case of Cheung Sau Ling & Ng Ping Hon v. Cheng Lai Chong
108. I am bound by the Judgment of Cheung Sau Ling’s case Cheung Sau Ling’s case
109. The question is whether the Plaintiffs could claim for loss of inconvenience and discomfort without proving nuisance. For breach of DMC, it is a claim for breach of contract. The loss must be foreseeable. The usual loss would be for damage to the property inside Flat 13D. If the Plaintiffs had to move out, there would be claim for costs of alternative accommodation. If the value of Flat 13D depreciated, there would be a claim for loss of value. So the loss is on damage to the property. But for the inconvenience, it is a kind of non-pecuniary loss suffered by the occupants. It is usually a head of claim on nuisance. It is questionable if it could be claim merely on breach of contract without proving nuisance.
110. If I would refer to the case of Wong Kwok Chiang and oths v. Longo Construction Limited and Anr.
“It is, of course, trite law that even where there is no physical damage to the property, nuisance which is established may cause annoyance, discomfort and inconvenience to the occupants of property. [my emphasis] Recovery by an aggrieved Plaintiff is based on the normal measure of damages assessed on general principles. (see e.g. Bone v. Seale [1975] 1 WLR 797, per Scarman L.J. at p. 804F.) This is the “nuisance of the third kind” so described and dealt with in CLERK AND LINDSELL ON TORTS (1st Edition) paras. 23-3 to 23-10.
I do not doubt that general damages under this head can be recovered if it is established that annoyance and inconvenience etc. was caused, and was foreseeable by those creating the nuisance. I other words I do not see why in appropriate cases general damages should not be recovered even where the primary nuisance is of the second kind (causing physical damage to property) discussed in CLERK AND LINSELL in para. 23-3.”
111. It is clear from the judgment that for a breach of contract, only if nuisance causing inconvenience and discomfort is established, a compensation for loss arising from such nuisance could be recovered. Hence, for the Plaintiffs to succeed with their claim for damages for inconvenience and discomfort, they still have to prove nuisance. And it is well established in the Chan Sau Ling’s case
112. In the present case, for the first complaint of leakage in 2001, according to the MO Record, the Management Office sent someone to investigate the leakage. No leakage from Flat 14D was discovered. I cannot say that the Defendants knew that water leaked into Flat 13D from their premises.
113. For the second period of leakage, that occurred on one single day. I do not think it is sufficient to put the Defendants on constructive notice of leakage.
114. It is only in respect of the April 2003 leakage, that by the report of Mr. So given in May 2003, the Defendants should have knowledge that the leakage come from Flat 14D. And the Defendants have carried out repair in June 2003. I cannot say that they have not carried out remedial work within a reasonable time.
115. And the fact that the Defendants refused to co-operate with the Plaintiffs to allow them to carry out water test was not sufficient to create a nuisance.
116. And for the 2004 leakage for one day. Again, it is not sufficient to establish nuisance.
117. Taking all these into account, I conclude that the Plaintiffs fail to prove nuisance on the part of the Defendants and the Plaintiffs would not be entitled to the damages for inconvenience and discomfort.
118. If I were wrong and that damages for inconvenience and discomfort should be awarded for breach of covenant or statutory duty or negligence, I come to consider the notional award of damages.
119. For the first period of leakage, it is for about 10 days. The annoyance or nuisance is minimal. For the second period of leakage, it is for one day. So is the fourth period of leakage. The main complaint of nuisance is on the third period of leakage. It was the evidence of the Plaintiffs that at the material time of the leakage in 2003, they were afraid of using the toilet. The third period of leakage was during the period of SARs and they were concerned with their health. They did not use the toilet from April 2003 to about end of 2005, just before they moved out of Flat 13D. Mr. Koo invited me to award $150,000.00 for the damage.
120. Mr. Koo relied heavily on the judgment by Deputy Judge J. Ko (as he then was) in Brilliant Harbour Development Ltd. v. Stuart Andrew Rattigan
“There is no scientific way of translating inconvenience and discomfort into a sum of money. In John So v. Lam Hon Man , the court awarded $10,000 for water leakage for a period of about 1 and ½ months. In Chan Fei Lung (a male) v. Mansion Products Ltd , HCA 336/1990, the court awarded $25,000 as damages for nuisance for a period of two months. In Leung Yung Chun v. Chan Wing Sang , HCA12235/1998, the court awarded $80,000 for damages for inconvenience for water leakage lasting nearly 2 years. In Chung Che Sum v. Dong Sai Ming Fernando , DCCJ 21504/2001, the court awarded $80,000 for water leakage affecting 3 bedrooms for about 2 years.
In the present case, water seepage began in mid-July 2005 and was not abated until the end of October 2006. It is clear from the evidence that the Plaintiffs have suffered much distress and inconvenience. …….
I consider that an award of $50,000 is justified.”
121. Mr. Koo invited me to give a higher compensation in light of the concern of SARs.
122. First, I deal with the evidence of the Plaintiffs that they did not use the toilet for almost two years. I have difficult to believe their evidence. True, SARs was a nightmare to Hong Kong. If they were afraid that the leakage would affect their health, I would expect them to have moved out, or taken some remedial steps by engaging a proper expert to check if it was safe to live in. Nothing so drastic had taken place. It is sufficient for me to say that there is no evidence to suggest that the toilet is not safe for use at the material time.
123. And after all, the leakage was for a period of 2-4 months. There was no reason why the toilet could not be used after the leakage stopped. If the Plaintiffs did not use the toilet after the leakage stopped, the distress was self-induced.
124. I do not agree the inconvenience suffered by the Plaintiffs in our case come close to any of the cases cited by the Honourable Deputy Judge. The inconvenience would at best be the additional cleaning required for the period of about 2 months. There was another toilet for use by the occupants in Flat 13D. The inconvenience would be minor. I would have awarded a sum of $20,000 if nuisance were established.
125. In summing up, I dismiss the Plaintiffs claim. Given that the Plaintiffs have failed to prove any damages, and that they have abandoned the application for injunction, I see no reason why they should not have to pay the costs of the Defendants. I would give an order nisi, to become absolute within 14 days from today, that the Plaintiffs should pay the costs of the Defendants, to be taxed if not agreed.
126. In closing, I would refer again to the comment made by Mr. Justice Woo in the Cheung Sau Ling’s case
在多層樓宇中的各單位業主及戶主的關係，多由大廈公契規限。大廈公契多會就漏水的情況列出各單位戶主的相互權利和義務。有關人士，包括各單位業主及戶主，和法定業主會及大廈管理公司等的行為和權責，應按公契的條文處理。
在沒有公契規限的情況下，當有單位戶主發覺有水侵入他的單位而向其他單位的戶主求助尋找原因時，其他單位的戶主應以合作的態度，盡量於合理情況下加以協助。否則，可能引起紏紛，甚至訴訟。若查出漏水不是源於自己單位，亦應以合作的態度，盡快通知有水侵入的單位的戶主，使該戶主可作出相應的行動。若發現漏水源於自己單位或由自己單位的裝置(如破爛水喉等) 所產生，則應從速採取補救步驟以杜絕漏水。否則可能要負上上列第(3)項情況的法律責任。
127. I believe that is a gentle reminder to co-owners to co-operate with each other to improve their living environment. If the parties hereto could be more forbearing and co-operate to resolve the issue, I am sure that this litigation could be saved. If they now review the whole situation, I am sure they would agree that there could be better solutions. And with the Civil Justice Reform, I would have expected all legal practitioners to advise their client on the benefit of Alternate Dispute Resolution, such as mediation.
(R. Yu)
Mr Ernest Koo, instructed by Messrs. Jackie Cheung & Co., for the Plaintiffs.
Mr Cheung Kam Wing Adonis, instructed by Messrs. Fairbairn Catley Low & Kong., for the Defendants.