NGAN PING CHI AND ANOTHER v. LAM CHI HAO LOUIS AND ANOTHER

DCCJ462/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 462 OF 2003

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JUDGMENT

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1. The Plaintiffs are and were at all material times the owners and occupiers of the premises situated at Flat D, 9th Floor, Tower 2, Tsing Yung Terrace, 8 Tsing Yung Street, Tuen Mun, New Territories ("the Plaintiffs' premises").

2. The Defendants are and were at all material times the owners and occupiers of the premises situated at Flat D, 10th Floor, Tower 2, Tsing Yung Terrace, 8 Tsing Yung Street, Tuen Mun, New Territories ("the Defendants' premises"). The Defendants' premises are immediately above the Plaintiffs'.

3. By this claim the Plaintiffs claim against the Defendant for damages and injunctive relief arising from water seepage into the Plaintiffs' premises.

4. It is the Plaintiff's case that the source of the water seepage is a Copper Pipe located inside the floor concrete slab of the Defendants' master bedroom bathroom. It is alleged that this Copper Pipe is part of the Defendants' premises. The Plaintiffs' case is based on negligence and nuisance. Particulars of Negligence pleaded are:-

The Defendants were negligent in that they:-

(a) failed to keep their plumbing systems in good working condition;

(b) failed to take reasonable precautions to ensure their plumbing system was leak-proof;

(c) failed to engage competent workmen and plumbers to carry out plumbing works once leakage occurred;

(d) failed to ensure that plumbing works were properly done so as to eradicate the water leakage problem;

(e) failed to carry out further and effective plumbing works so as to eradicate the water leakage problem; and

(f) allowed water from their premises to continue to leak into the Plaintiffs' premises.

5. It is the Plaintiffs' case that in the course of the continuous water leakage, the Plaintiffs have repeatedly requested the Defendants to carry out further plumbing works in their premises. So far the Defendants have failed to do so.

6. It is pleaded by the Plaintiffs that since the second half of 2002, the Defendants have started to adopt an uncooperative attitude. The Defendants have refused the Plaintiffs, their plumbers and surveyors to enter their premises to conduct leakage tests and inspections at reasonable hours and with reasonable advance notice. The Defendants have also refused the Plaintiffs, their plumbers and surveyors to observe leakage tests conducted on the Defendants' plumbing system.

7. By reason of matters aforesaid, the Plaintiffs have suffered inconvenience and discomfort. The Particulars of Inconvenience & Discomfort pleaded are:-

"PARTICULARS OF INCONVENIENCE AND DISCOMFORT

(a) the Plaintiffs cannot use the lighting installed on the false ceiling of the master bedroom bathroom because of the water leaked onto the lighting, hence the bathroom has been insufficiently lit;

(b) the false ceiling of the Plaintiffs' master bedroom bathroom had to be taken down in order to facilitate the investigation of leakage cause. They have not been put back to date due to the on-going leakage from the Defendants' premises. This has greatly affected the appearance of the Plaintiffs' premises;

(c) the Plaintiffs have to place a bucket in the master bedroom bathroom in order to collect water dripped down from the ceiling;

(d) the Plaintiffs have to clear the said bucket regularly;

(e) the Plaintiffs' domestic helper has refused to clean the master bedroom bathroom lest getting an electric shock and therefore the Plaintiffs are left to do the cleaning themselves."

8. At the end of the trial, the Plaintiffs' Counsel stated that they are confining their injunctive relief to seek an Order that the Defendants do carry out all remedial works as suggested by the Plaintiffs and their agents to eradicate the aforesaid water leakage problem at the Defendants' own costs.

The Issues

9. The primary factual issues in dispute are as follows:-

(1) Whether the source of seepage is the Copper Pipe.

(2) Whether the Copper Pipe belongs to Flat 10D. This has been conceded.

(3) If the answer to both paragraphs (1) and (2) above is in the affirmative, the Court should then consider the 4th issue, namely whether the Defendants are negligent in causing the seepage or whether they have caused nuisance to the Plaintiffs.

(4) If the Defendants are found liable to the Plaintiffs, the 4th issue is the quantum of damages and the appropriate order to be made.

Burden of Proof

10. I agree with the submission of the Defendants' Counsel that the burden of proof rests on the Plaintiffs. The Plaintiffs have the burden to prove, on the balance of probabilities, that the Copper Pipe is the source of seepage. There is no presumption that the source of leakage would necessarily come from the flat above. It is not for the Defendants to find out the real source of seepage or to prove that its origin is not come from the Defendants' premises.

The 1st Issue - Whether the source of the seepage is the Copper Pipe

11. The evidence related to this comes from the first named Plaintiff, the Plaintiffs' expert Mr. William Poon of Jones Lang LaSalle Limited and the 2nd named Defendant and the Defendants' expert Mr. Chan Kwok Wai of Dudley Surveyors Limited.

12. Mr. Ngan Ping Chi, the 1st named Plaintiff adduced his witness statement into evidence and confirmed its truth thereof. He referred to the photographs taken by him attached to his witness statement. These show the location of the water seepage and the Copper Pipe which became exposed after his contractor knocked off concrete along the path of the water seepage. From the photographs it is clear that the Copper Pipe was above metal rods, which were reinforcement for the concrete floor slab. This showed the high likelihood that the Copper Pipe was a water supply pipe of the Defendants' premises. This fact is now not disputed. He stated that the water seepage was continuous and did not stop until 8th November 2003 when the Defendants moved out of the Defendants' premises. Water dripped at intervals of 20 seconds.

13. The Plaintiffs' expert Mr. Poon gave evidence to support his opinion that the water seepage in all probability came from the Copper Pipe. His Report is at pages 35 to 54 of the Trial Bundle (BD-T).

14. His contention is based largely on the water pressure test carried out by the East Point Property Management Services Ltd. (hereinafter referred to as "East Point"), the Management Office of the building, at the Defendants' premises. In para 5.3 of his report, Mr. Poon stated that they "observed no water stain during his first inspection", namely before the start of the water pressure test. Subsequently, at 10:30 a.m. after the water pressure test had started he observed a wet stain (with approximately 0.02 m2 in size) near the Copper Pipe at the ceiling soffit (see para 4.6.1 of his Report). This is shown at photos 5 and 6 of his report. In photo 5, a red arrow points to this water stain. Water droplets were observed at about 20 second intervals from the wet stain area at about 10:30 a.m. They also found the concrete or plaster around the Copper Pipe to be wet.

15. He stated that he could not obtain permission to attend the water pressure test conducted by East Point on the Defendants' premises. From the Report of this test, annexed to Mr. Poon's Report, it shows that at the end of 1 hour from the commencement of the test there was a 12.5 lb drop in water pressure.

16. He stated that the reason why East Point was not able to come to any conclusion from the water pressure test was because their staff did not attend the Plaintiffs' premises both before and after the test. Although they did attend the Plaintiffs' premises in the course of the water test, they did not do so before hand.

17. He came to the view that because there was a water pressure drop of 12.5 lb, recorded at the conclusion of the test, this indicated that there is likely to be water leakage at water-carrying service pipes inside the Defendants' premises. He pointed to the Manual of the Hydraulic Pressure Test Pump used by East Point in the water pressure test. He referred to paragraph (8) and (9) under the heading "Testing Procedures" at page 48 of BD-T. (8) states, "If the pressure does not drop, the test pipe is perfect". (9) states, "If the pressure drops, it is indicative of leakage caused somewhere on the test pipe." He stated that when water pressure dropped 12.5 lb in one hour that indicated that there is a leakage in the Copper Pipe.

18. From his observation of the wet stains that emerged from the water pressure test, he came to the conclusion that water had leaked from the exposed Copper Pipe at the ceiling soffit of the Plaintiffs' premises.

19. Under cross-examination as to why the dripping of water did not increase from that observed by Mr. Ngan in the course of the water pressure test, he explained that a lot of the water that leaked from the Copper Pipe during the water pressure test would have seeped into the concrete floor slab. This would absorb a lot of water before the stain emerges and the water droplets form.

20. He stated that on the 11 October 2002 when he attended the Plaintiffs' premises, he ran his hands over the Copper Pipe and found it was smooth. He was of the view that there were no holes in the pipe. He did not think that the pipe had been damaged in the course of the removal of its plastic covering by the contractor of the Plaintiffs.

21. He also referred to the two other tests conducted on the pipes. The dye water test was conducted by the Food & Environmental Hygiene Department. The test was conducted on the waste water pipes and not the water supply pipes. This test is not necessarily effective as the dye in the water would be absorbed by the concrete and not much of it would come out in the water seepage. In any event, it only shows if there is any water seepage in the waste water pipes. The Copper Pipe is a water supply pipe.

22. In relation to the test conducted by the Water Authority, shown at page 82. No water pressure was applied. The water supply was closed off for 30 minutes and the fresh water supply meter was observed to see if the fresh water had leaked out from a leakage point. Mr. Poon stated that if there were water seepage from the water supply pipes, when no water pressure is applied to the water supply pipes, any water seepage would be slow and by observing the water meter for 30 minutes, such water flow would not register in the meter. It is not an effective test. That is why it was not conclusive.

23. He did not agree with the expert of the Defendant that water seepage could have come in through the vertical expansion joint running along the junction of the two building structures in the vicinity. According to the Defendants' expert, Mr. Chan Kwok Wai, Albert of Dudley Surveyors Limited, the width of the expansion joint was estimated by him to be 50-75mm. There is metal covering over the joint as can be seen in photo 7 and 8 attached to Mr. Chan's report. Either side of the overlapping metal cover is affixed to the external wall of the two buildings. Mr. Chan stated that from the window of the kitchen of the Defendants' premises, he could see that the connection between the external wall and the edge of the metal covering was detached in an area very close to the master bathroom of the Defendants' premises and the ceiling of the master bathroom of the Plaintiffs' premises. He stated that from the kitchen window of the Defendants' premises he could see that the sealant at the expansion joint had become dry and calcified from weathering and there could be cracks in the sealant from which rainwater seeped through the voids at the external wall and soak the concrete structure of the Defendants' premises. The damp would become apparent at the weak concrete spots or hairline cracks.

24. Mr. Poon, the Plaintiff's expert stated that this could not be true. The reason is, that under the sealant there is a water stop, which consists of a ball with two wings over it. Water cannot pass through the ball. If the water seeped in through the area where there is slight detachment of the metal from the external wall, water has first to go through the sealant, then through the water stop. Not only that, it has to go horizontally from the detached area of the metal flap from the wall, to the sealant rather than flow downwards. He referred to the photographs at pages 123 and 124 attached to the Supplementary Witness Statement of Mr. Ngan of the Plaintiff. He referred to photo 5, where he marked with a red ball pen the area in the expansion joint where there is a slight detachment of the metal flap covering the expansion joint from the external wall. He pointed out that the detached area could not have been the length of 6 to 8 meters as stated by Mr. Chan at paragraph 5.2 of his Report. He was of the view that the area of detachment could only have extended to the area of about 12 tiles. This length is only 1 foot.

25. Further he stated that over 90% of expansion joints did not have the metal flap covering as in this property. The fact that there was detachment of the metal flap from the wall for this short length would not have caused the water seepage. Further, water seepage could not have come from the rainwater seeping through as described by Mr. Chan because according to Mr. Ngan, the water dripping was continuous. If the water seepage were only to occur after rain, the water dripping would not have been continuous.

26. Another reason for him to conclude that Mr. Chan's theory could not be correct, is that if water had seeped in through the expansion joint, water would come from the area where the concrete is less dense. Water seepage is likely to come through the corner joint of the building and spread from there. He had looked at the corner joint area at the Plaintiff's premises and could not find damp in that area. The water seepage was in the ceiling where the Copper Pipe was. He did not agree with the statement of Mr. Chan in para 3.7 of his report that the area of the defect or detachment of the metal cover of the expansion joint was very close to the master bathroom.

27. He referred to the efflorescences, on the ceiling of the Plaintiff's master bathroom along the Copper Pipe. These come from dissolving of calcium in water through continuous and progressive seepage of water causing milky condensates. These dry up to become sticks of calcium seen at photo 3. These suggest that the water seepage was continuous.

28. The Defendant's Counsel referred to the heavy reliance on the water pressure test conducted by East Point. He queried the reliability of the water pressure test and the finding of Mr. Poon as follows:-

(1) It was stated by both Mr. Poon and Mr. Chan that the water pressure test should have been conducted by a licensed plumber, and the test did not appear to have been so conducted.

(2) Mr. Poon stated that the water pressure would be about 7 lbs per floor. However it is dependant on whether the water supply comes from the top or bottom. Were there 10 floors from the source of the water supply, at 7 lbs per floor it would be 70lbs. He stated that at a water pressure test, about 15 to 20 lbs of water pressure would be applied. This is different from the evidence of Mr. Chan who stated that about 50% additional pressure should be applied. The water pressure in the pipe was 75lbs at 10:10. There is no indication in the Report of East Point as to what the original pressure was and how much additional pressure was applied. There is no explanation as to the readings taken. If the Plaintiff wished to take advantage of the of the Report, they should have called the maker of the Report and those who were present at the test to give evidence. This was not done.

(3) There is no explanation in the Report as to why there was no conclusion in the Report.

(4) The water droplets were stated by Mr. Ngan to drop at intervals of one drop per 20 seconds before the water pressure test. Mr. Poon stated that in the midst of the test he saw the water droplets drop at intervals of one per 20 seconds. There was no difference in the frequency of the drops at the water pressure test.

(5) Mr. Poon stated that during the water pressure test, the water seepage increased and it could be seen in the water coming through the water stain in photo no. 6 at page 53 of BD-T. Defence Counsel questioned Mr. Poon under cross-examination on his evidence that the wet spots found in photo 6 attached to the witness statement of Mr. Ngan Ping Chi could have dried. He questioned whether the water stain, which was not found in the same location in the photograph of Mr. Poon's Report at page 53 at the time Mr. Poon inspected, whether the water seepage could have been continuous if water stain could dry up. Mr. Poon stated that in a room, when the air is dry, the water stain could dry up.

(6) Further, Mr. Poon agreed that the Copper Pipe could have been a potable water supply pipe. If the surface pipes have been connected to the water gauge controlling fresh water into the master bedroom, and these surface pipes supply water to the shower head, the water heater and the wash basin, and if the water supply had been fully cut off, and the job is well done, the embedded water supply pipe would contain no water in it.

29. There is no evidence from the plumber who had done the job in connecting the surface pipes to the water gauge. The evidence of what was done by the plumber comes from the 2nd named Defendant and she is a layman. She was not at the scene when it was done as she was in the hospital giving birth to her baby. She relies on hearsay evidence of the plumber as to what he did. There being no evidence from the plumber it is not clear as to whether he had cut off completely the water supply into the concealed water pipes, or that he had done a good job. The invoice from the plumber at page 81 of BD-T merely stated "change water pipes in the master bedroom. The cost was $3,000. The 2nd named Defendant did not know if the plumber Chi Keung Decoration Contractors, was a licensed plumber. She stated that she thought that East Point who recommended him would have found a licensed plumber for her.

30. Mr. Chan, the Defendant's expert stated under cross-examination that if the water dripped 1 drop every 20 seconds, he was of the view that the water pressure would have dropped rapidly. He also stated that he did not know why they increased the water pressure only to 75 lbs, which is close to normal pressure. He was of the view that if water dripped 1 drop per 20 seconds, water pressure would drop 10 lbs per sq. inch every 2 - 3 seconds and would continue to drop until the pressure applied would drop to :"0" lbs. However, Mr. Chan did not include this comment in his report and only mentioned it in his oral examination in chief. Hence there was no cross-examination of Mr. Poon on this. Mr. Poon had not been given the chance to comment. Further, in paragraph 4.2 (c) of his Report, at page 61 of BD-T, he states, "para 5.4 Property management office should give reason(s) in their Hydraulic Pressure Test Report why the result (a drop of more than 15% of original water pressure) could not conclude on the condition of water leakage." This seemed to imply that a drop of 15% of original water pressure is significant in the issue of whether there is water leakage. It showed that the position Mr. Chan took in his Report seems to be different from his position during his oral evidence.

31. Mr. Chan referred in his evidence to his observation of the expansion joint and the metal cover having become detached. He stated that it is obvious that there was something behind the metal slabs, something black that has also buckled up. He stated that if the sealant had been damaged, when there is a typhoon, the water would seep in.

32. Under cross-examination, he agreed that the concealed pipe, or the Copper Pipe that upon entry into the master bathroom goes diagonally across the master bathroom could be one that supplies water to the water tap of the original bath tub. The water tap of the original bathtub was situated opposite the present showerhead.

33. When he was cross-examined on the fact that he could not actually see the sealant from the kitchen window of the Defendant's premises, he agreed. He stated that he could only see signs and he surmised and inferred what the situation could be from the signs. He also agreed that in most of the expansion joints, there was no stainless steel overlapping metal covers.

Finding

34. I accept the evidence of Ngan Ping Chi and Chan Shuk Fun Shirley. I accept the opinion evidence and the factual evidence of Mr. Poon, and in particular his opinion evidence in relation to the three tests conducted. I accept the accuracy of his observations in the course of the water pressure test. I find Mr. Poon to be both honest and reliable in his evidence. In relation to the water pressure test conducted by East Point, although there is no evidence of a licensed plumber having been involved in the test, yet a building surveyor was present during the test. It is unlikely that the test would have gone drastically wrong, as it had been adequately supervised by Mr. Brian Lam, a building surveyor and set up by a technician Mr. Lam. The reading was taken by the guest technician Mr. Lam, the onsite technician Mr. Wong Ching Hang and on-site B.S. Mr. Brian Lam. It is unlikely that the taking of the water pressure could have been inaccurate.

35. As regards the water pressure in the pipes before the start of the water test, even though there is no evidence of such, the water pressure according to Mr. Poon is 7 lbs per floor from the source of the water supply depending on whether the source came from the roof or from the ground. Hence there is no precise evidence as to the original water pressure in the water pipe before the pressure was increased as there is no evidence as to whether the source of water supply is on the roof nor the number of floors that are above the Defendant's premises. Although, there is no evidence given by those who conducted the water pressure test, as referred to aforesaid, it was conducted by technicians and the readings in the gauge was done by three persons including a building surveyor. Since the readings were taken by all three, it is in my view likely to be reliable. However, it is true that there is no direct evidence of the number of lbs of pressure that was applied.

36. There was a drop of 12.5lbs of pressure in 1 hour. I prefer the evidence of Mr. Poon related to the significance of this rather than the evidence of Mr. Chan whose oral evidence deviated from his written Report where he queried why the technicians or the Building Surveyor or the plumber could not come to any finding in the test report upon the drop of 15% of water pressure in the water pipe. The fact that he was surprised that the Building Surveyor or the plumber could not come to a conclusion would indicate that at the time he prepared his report, he was of the view that the drop of 15 % of water pressure was indicative. Based on this a conclusion should have been made.

37. Wherever the opinion evidence of Mr. Chan differed from Mr. Poon, I prefer Mr. Poon's opinion evidence.

38. The fact that the drop in water pressure is indicative of leakage in the test pipe is stated in paragraph (9) under Testing Procedures in the Manual of the Test Pump at page 48 of BD-T.

39. Mr. Poon stated that a new water stain appeared about 30 minutes after the test started and he saw that water dripped from this stain. Even though the water dripped at 1 drop per 20 seconds, yet he stated that water had seeped into and gone into the concrete and it was spreading in the concrete before the water dripped from the water stain.

40. The fact that there has been continuous water seepage can be seen in the efflorescence as explained by Mr. Poon referred to above. As stated by Mr. Poon this evidence tends to support the Plaintiff's evidence that there has been continuous water seepage.

41. There is no direct evidence of the work of the Defendants' plumber Chi Keung Decoration Contractor ("Chi Keung"). He did not give evidence as to the work done by him or how he did the work or its effectiveness in cutting off water supply to the concealed water pipes.

42. The opinion evidence of Mr. Chan, the Defendant's expert that water seepage came from the expansion joint where the metal overlapping has become detached from the wall is in my view mere surmise. I accept the opinion evidence of Mr. Poon related to the unlikelihood of water seepage having come from there. I also do not accept the oral evidence of Mr. Chan related to the fact that if water dripped one drop per 20 seconds water pressure would drop 10 lbs per sq. inch every 2-3 seconds and would continue to drop until the pressure applied would drop to "0" lbs. There is no authoritative writing that he advanced in support of this and it seems to be different from his statement in his Report where he queried why no finding could be made by East Point on the water pressure test. I considered all the points raised by the Defence Counsel in his final submission and in his cross-examination of Mr. Poon.

43. I am fully aware that it is for the Plaintiff to establish on a balance of probability that the source of water seepage is that pleaded by the Plaintiff and that the onus is not on the Defendants to disprove it. On the basis of all the factors aforesaid, I find on a balance of probability the Plaintiff has established that the source of the water seepage is the Copper Pipe.

2nd Issue - Ownership of the Copper Pipe

44. It is conceded by the Defendants' Counsel that on the basis of the expert opinions from both the Plaintiffs and the Defendants, it is likely that the Copper Pipe belongs to the Defendants' premises. Having been conceded this is no longer an issue.

3rd Issue - Whether the Defendants were negligent or whether they caused nuisance?

45. I agree with the Defendants' Counsel that before they received complaints of leakage, the Defendants could not have been negligent as the building was built in 1991 - 1992. It was not an old building. It is not reasonable to expect the Defendants to check the water supply pipes at regular intervals at that stage. Balancing the benefit of the precaution, the degree or likelihood that the harm would occur and the severity of that harm I come to the conclusion that that expectation that the Defendants would have to check the water pipes at regular intervals is not reasonable at that stage.

46. The Defendants engaged contractors on the advice of East Point. First, they retained Tai Ming Decoration & Design Engineering ("Tai Ming")to remove the original tile flooring, construct a new waterproof layer on the floor, construct new tile flooring finish on top and re-construct the shower cubical drainage.

47. The 2nd named Defendant asked Mr. Lam of East Point whether the water seepage had stopped. Initially Mr. Lam stated that the water seepage at the Plaintiffs' premises had stopped. A few days there after she was informed that the water seepage had resumed. Thereafter, she instructed Tai Ming to re-do the renovation work again. Her husband also brushed water repellent at the spaces between the tiles at the lower part of the internal wall and the edges of the shower cubicle of their bathroom as an immediate measure.

48. In about mid-January 2002, Tai Ming carried out the same renovation work all over again as before. She was informed by Mr. Lam of East Point that initially the water seepage problem stopped but after about one week it had resumed. Then, Mr. Lam informed her to cut off the water supply from the concealed pipes and substitute these with surface pipes. She followed instructions and employed Chi Keung to carry out the works as follows:-

(i) cutting off the original water supply pipe serving our bathroom and leaving it obsolete from the control stop cock position;

(ii) removing the original control stop cock and replacing it with a new one;

(iii) substituting the original water supply pipe with a new exposed surface water pipe mounted on the tile wall surface connected to the wash basin, shower water tap and the heater; and

(iv) moving the shower water tap to the re-routed position.

49. Initially she was informed that the water seepage problem had stopped. Thereafter she was informed that the problem had recurred again.

50. Then a series of 3 tests were done as referred to. None of them were conclusive. The Defendants relied fully on East Point for advice. However, there is no evidence as regards whether East Point were experts on the relevant issue of water seepage or whether their advice was reliable. The 2nd named Defendant stated that they relied entirely on East Point to find a licensed plumber for her. However she was not even sure whether Chi Keung was a licensed plumber. There is no evidence that she asked whether Chi Keung was a licensed plumber. She could not be sure exactly how Chi Keung carried out the work. There is no written quotation from Chi Keung itemising the work. The evidence of what he had done was hearsay as she was not present and did not observe what he did for good reason as she was in hospital giving birth to her baby. She had sacrificed greatly to have this work done whilst she was giving birth. However, the fact is that there is no direct evidence as to how the work was done. The invoice from Chi Keung does not clearly itemize and describe the work of Chi Keung. The description of the work was "to replace the water pipes in the master bathroom".

51. Upon learning that after the work by Chi Keung there was still water seepage into the Plaintiff's flat, I find that, to be a responsible neighbour to the Plaintiffs, she should have co-operated with the Plaintiffs in their investigation to uncover the source of leakage and/or to find out themselves whether the leakage could have come from the concealed pipes which were not properly cut off in the work by Chi Keung. The Plaintiff's Solicitor wrote to the Defendants on 19th August 2002 suggesting the employment of a qualified Building Surveyors and requesting their co-operation by allowing the inspection of the Defendant's premises by the Building Surveyor (see p. 83 of BD-T). However the Defendants refused the suggestions of the Plaintiff's Solicitors. Again the Plaintiff's Solicitors wrote another letter to the Defendants on 10th September 2002 seeking permission for their Expert to enter their premises for inspection. The Defendants again refused. The 2nd named Defendant stated that she relied on the advice of Mr. Lam of East Point as to what Jones Lang LaSalle is likely to do and she came to the view it was not likely to be effective and refused to allow them to inspect her premises. Again the Defendants refused to allow East Point to do a more thorough test as described in the letter of East Point dated 22nd October 2002 at page 87 of the BD-T. Her reason for not allowing East Point to do the further tests was because after the water pressure test they were told the test was inconclusive. However, in the face of further water seepage, the Defendants had a duty to do what they could to assist in the investigation of the source of water seepage.

52. Without minimizing the good intentions of the 2nd Defendants in what they had attempted to do, in my view, for the reasons aforesaid, they were negligent in failing to do a thorough investigation as to the source of the water leakage or to co-operate with the Plaintiff in their investigation into this. They did not permit further investigations into the source of water leakage by East Point nor did they themselves make further investigations. As East Point are not experts in the area of water seepage, or there is no evidence of this fact, the Defendants' reliance on their views and opinion, was wrongly placed. I find that the Defendants were negligent.

53. In relation to the issue of nuisance, in my view, the 2nd Defendants had committed nuisance for the same reasons that I found that they were negligent. Upon knowing that the remedial works done by her did not stop the water seepage, she should have made further investigations on whether the source of water seepage came from her concealed pipes or from her premises. Her reliance on the opinion of East Point is not a sufficient as there is no evidence that East Point has any expertise on the issue of water seepage.

4th Issue

54. The items of damages as pleaded in the Amended Statement of Claim are well documented. The Surveyor's fees at HK$12,000 is stated at page 2 of the Service Proposal at page 83A of BD-T. The quotation for the estimated costs of reinstating the false ceiling boards and lighting is at page 76 of BD-T. The receipt for the bonesetter's fees at $160 is at page 88 of BD-T. The receipts for the physiotherapy and other treatment from Associated Trauma & Orthopaedic Practice is at pages 89 to 93 inclusive of BF-T. The total sum for physiotherapy is $2,660, which together with bonesetter's fees comes to $2,820. The quotation for the estimated costs of reinstating the Plaintiffs' bedroom is at page 129 of BD-T in the sum of $16,500. These items are proved.

55. In relation to general damages, I have been referred to Siu Kam Wong, To Chun Lin and Leung Kin Hing HCA1243 of 1997 where Master Barnes as she then was awarded $18,000 for distress and inconvenience for water seepage between 1993 and 1996. She found that it was the Plaintiffs' own financial difficulties which rendered the repairs not done until 1996. She awarded $18,000 damages under this head.

56. In Leung Yung Chun and Tsoi Chik Lai v. Chan Wing Sang, Lau Koon Cao and Tsang Sheung Ying, HCA12235 of 1998, there was serious and extensive leakage in the bedrooms, and in the corridor. The leakage was so bad that means for collection of water were devised. The wet and dampness was severe. The leakage started from July 1995 until 1998. For the leakage and damage, which was both extensive and severe over a period of nearly 3 years, Mr. Justice Cheung as he then was awarded damages in the sum of $80,000 for distress and inconvenience.

57. In the case of John So & Anor. V. Lau Hon Man, (Civ Ap. No. 110 of 1993, a sum of $10,000 was awarded for water leakage, which lasted 11/2 months. In the present case, the Plaintiffs suffered inconvenience with the false ceiling of the master bathroom being removed and with the constant dripping for over 2 years. However, the damp and dripping is confined in the main to the master bathroom although there is damp in the master bedroom as well. In my view, damages for distress and inconvenience in the sum of $20,000 is appropriate.

58. Damages total the sum of $12,000 + $5,600 + $2,820 + $16,500 + $20,000 = $56,920.00

59. In relation to the remedial work and the Order sought related to this, I grant the Plaintiff's application in the terms stated hereunder.

60. I give judgment for the Plaintiff against the Defendants in the sum of $56,920.00. I grant interest at judgment rate from date of Writ to date of judgment and thereafter at judgment rate until payment. I order that the Defendants do within 28 days cut off, disconnect and seal off the concealed fresh water supply Copper Pipe at the location starting from the fresh water supply stop cock supplying fresh water to the master bathroom of the Defendants' premises to the points of connection of such Copper Pipe to the surface water supply pipes in the master bathroom. The Defendants should do all such remedial work in relation thereto to ensure that there would be no water seepage from the connecting joints of the fresh water supply pipes at the master bathroom of the Defendants' premises I further order that the Defendants do give reasonable notice to the Plaintiffs to inform them of the date of the remedial work and to give access to the Plaintiffs and/or their agents to visit the master bathroom of the Defendants' premises in the course of the work, to inspect and to investigate the remedial work in the process of the work, if so required. I grant an order nisi to the Plaintiffs for costs of the action to be taxed if not agreed with Certificate for Counsel.