LEE KIN SHING AND ANOTHER v. YIU MING CHUNG AND ANOTHER

DCCJ 2490/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2490 OF 2003

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JUDGMENT

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1. The Plaintiffs claim against the Defendants for damages to their premises at Flat C 16/F 105 Broadway Meifoosunchuen arising out of leakage of water from the Defendants' premises at Flat B 16/F sometime in September 2002.

The issues

2. There are 2 issues.

1. Whether the cause of leakage originated from the Defendant's premises.

2. If so, the amount of damages.

Whether the seepage originated from Flat 16B

3. On 2/7/02 Lee Kin Shing (the Plaintiff) was told by the management staff of Meifoosunchuen that water seeped through the ceiling of the flat below i.e. 15C and suspected the seepage originated from his flat. He went down to inspect and found that the area where seepage occurred was at the position of his sitting room and store room. At the request of the management staff he turned off the main tap at 11 p.m. until 11 a.m. the next day but there was no improvement.

4. On 10/7/02 the Plaintiff met the owner of Flat 15C, he was told that there was no more seepage.

5. On 11/9/02 the Plaintiff found the floor tiles of his sitting room and corridor soaked with water permeating from underneath the floor tiles. As No. 8 typhoon signal was hoisted the management office was closed. The next day as he was dealing with the soaked floor the management staff came and told him Flat 15C's ceiling leaked again. The management office suggested he should get a qualified plumber to have a water pressure test of his water pipes to see if there was any leakage from his pipes.

6. On 13/9/02 he engaged Leung Sang Kee Engineering Co. who held a Grade I plumbers licence to come on 14/9/02 to carry out the test. It turned out that from the water pressure test there was no leakage in his water pipes. Leung Sang Kee noted that most part of the soaked floor was adjacent to the adjoining wall of Flat 16B and the leakage could have originated from Flat 16B.

7. On 17/9/02 the management staff went to his flat again to inspect. He suggested to the staff that the leakage might have originated from Flat 16B. He was told by that staff that Flat 16B's floor was also soaked with water.

8. On 18/9/02 the whole of Flat 16C ran out of electric supply. He was told that the whole 16th floor did not have electricity supply and that originated from Flat 16C. So Leung Sang Kee went to inspect and he was told that the wire inside the floor was soaked and caused the short circuit.

9. On 19/9/02 Leung Sang Kee conducted a water pressure test in Flat 16B and found that there was no problem with the water supply but due to the construction of a bathroom and toilet, there was problem with the drainage pipe in Flat 16B.

10. According to a letter dated 2/10/02 from Yiu Po Man (the Defendant) to the Plaintiff it was stated, inter alia, that on 27/9 his decoration worker proved or found that it was not the bath tub which leaked, it was the drainage pipe inside the raised platform of the bathroom connecting the main drainage pipe of the building which had been blocked.

11. There after the Plaintiff had engaged Monchel Asia Ltd. to make a report concerning the leakage after inspecting both flats i.e. Flat 16B and Flat 16C on 22/7/03. Mr. PS Kwan of Tru-Seal International (HK) Ltd. had made a report on 30/1/03 and another one on 29/8/03.

12. Mr. PS Kwan used the humid tester to measure the moisture content of the substrates inside the wall. As the test was done on 31/1/03, the test can not shed any light in respect of the conditions in September 2002. Mr. Mowat of Monchel Asia Ltd. inspected the flats on 22/7/03 also cannot tell the conditions of the flats in September 2002. However Mr. Mowat being a structural engineer did make certain points in respect of the bathroom in flat 16B which was constructed with a raised floor. His points assisted me in my finding on balance of probability.

13. I agree with him that raised floor normally would be light-weight concrete to minimize additional load to the original structural slab. Light weight concrete is not as dense and hence is less water tight than ordinary concrete.

14. He found that the new bathroom is in the centre of that flat adjacent to the dividing wall about 110 mm above the floor level and further away from the balcony vertical drainage down pipe than the original structure. As a result the fall on the main drainage will be inadequate to force waste water to discharge from the pipe. An inadequate fall can result in water sitting the pipe.

15. This is consistent with the finding of Leung Sang Kee and the decoration worker.

16. The Defendant when giving evidence said that the decoration worker told him that there was a lot of hair blocking the drainage pipe.

17. Couple with the fact that both Mr. Mowat and Mr. Kwan in 2003 when they inspected Flat 16B came to the conclusion that the bath tub had not been used. Mr. Mowat found that a large toy car was placed in the bath tub with clothing hung above, no soap was found around the bath and that the inside of that bathroom was dry. Mr. Kwan saw that the bathtub had not been used for a long time. The curtain rail was used as a hanger keeping casual dress.

18. Why was the bathroom not used for a long time? The most probable inference is that the Defendant was aware that the leakage was from the drainage pipe in the bathroom.

19. For reasons above on balance I find that the leakage originated from the bathroom in Flat 16B.

Damages

20. By reason of the leakage from Flat 16B the Plaintiff had been deprived of electricity supply from 18/9/02 to 28/10/02, and had caused great hardship in their daily live. The Plaintiffs moved out on 28/10/02 until 27/11/02 to redecorate the flat. He spent $20,500 on changing the wooden floor tiles, $9,000 on re-wiring and $2,3000 on wallpapers, $7,500 on transportation, packing and storage of furniture.

21. The Plaintiff had a collection of about 3,000 piece of long play 33" black plastic records. Some of them could no longer be purchased in record shops now. For some records he collected it was because of the artistic work of the cover and the fine prints of the booklets inside that record. Most of the records had been soaked so that the quality of sound was damaged, for some the cover had been spoiled and damaged by water. He had made out a list of the original purchase price, the price at the date he discovered the records were damaged and the value of the damaged records. For most of the records he could not remember the price when he purchased the records. There was no evidence about the price of those records around 9/02 and the value of the damaged records was only his estimate. It is therefore difficult to assess without evidence. Most of the records are not damaged to the extent that they could be regarded as a total loss. They still can be played. The sound quality could not have deteriorated because they were soaked. Unless the record warped the grooves which produced the sound are not damaged. So the quality of the sound could not have been damaged unless the groove is damaged. I am of the view that the Plaintiff has exaggerated his claim under this item. No doubt a lot of those records are expensive records, so I take a rough estimate and award $100 as damages for each record making a total of $30,000.00. However the Plaintiff had delayed in dealing with those records and had deliberately hindered the Defendant from carrying out the remedial work. On 26/9/02 when the Defendant started the remedial work he could not do so because the Plaintiff complained of the noise created. On 27/9/02 the Plaintiff again complained to the management office and work had to be stopped. I find the Plaintiff is at least 30% to be blamed and I assess the damage on those records to be $21,000.00.

22. The hardship the Plaintiff suffered was quite substantial. From 11/9/02 onwards the Plaintiffs had to constantly mop the floor. From 18/9/02 until 28/10/02 the Plaintiffs had to live without electricity. I assess damages under this head to be $15,000.00.

23. The Plaintiff is therefore entitled to $20,500 for changing the wooden floor tiles, $9,000 for re-wiring, $23,000 for wall papers, $7,500 for transportation and removal, $21,000 for damage to records and $15,000 for hardship the Plaintiffs suffered, making a total of $96,000.

24. In the premises I give judgment for the Plaintiff in the sum of $96,000 with interests at 1% above prime per annum from 11/9/02 until judgment and thereafter at judgment rate.

25. Order nisi: costs to the Plaintiffs. Certificate for counsel.