NEW PAN ASIS CARPET CLEANING COMPANY v. C.W.B. ROWLEY

IN THE SUPREME COURT OF HONG KONG

SMALL CLAIMS TRIBUNAL APPEAL NO. 15/88

(CLAIM NO. H-12690/87)

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J U D G M E N T

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1. The respondent is the owner of a 9' x 12' chemically-washed Tientsin carpet. It was acquired in November 1982. She was pleased with it. Some 4 years later, the respondent added to her household a smaller 9' x 6' Tientsin chemically-washed carpet. Only after 2 months' use, the small 9' x 6' Tientsin carpet was soiled by the spilling of some liquid. Apparently, the accident was covered by the respondent's insurance. It was steam-cleaned by the appellant at the cost of $300. The condition of the small 9' x 6' Tientsin carpet was considerably improved to the satisfaction of the respondent although the stains were not altogether lifted.

2. The appellant was thereupon asked to clean the 9' x 12' large Tientsin carpet. There were only a few blemishes on it. On re-delivery, the large 9' x 12' Tientsin carpet was allegedly found to have patchy stains of a pale yellow colour. After many invitations, Miss Leung of the appellant inspected the returned large 9' x 12' Tientsin carpet. She assured the respondent that the stains would disappear when the carpet was totally dry. The stains remained. Several weeks later, Miss Leung called on the respondent and at her request did a demonstration patch test for the removal of yellow stains. A day later, the patch test left a new pale orange colour.

3. Against this scenario, the respondent took the appellant to the Small Claims Tribunal. The adjudicator found in favour of the respondent and awarded her $6,000 plus $200 costs.

4. The appellant seeks to challenge the findings of the adjudicator. With leave, additional Grounds of Appeal were introduced.

5. Relying on S.16(3) of the Small Claims Tribunal Ordinance Cap.338, it was argued on behalf of the appellant that the adjudicator failed to make any or any proper inquiry into several alleged conversations on the possibility of filing insurance claims. By these alleged conversations, Miss Leung sought to attack the respondent's character and integrity. Counsel for the appellant fairly conceded that standing alone, these alleged conversations, even if proved, would not necessarily point to dishonesty or a propensity to exaggerate. Counsel maintained, however, that as matters relevant to general credibility of the respondent, they might in the end tip the scale in the overall evaluation of the merits. I need not, therefore, return to these alleged conversations unless there exists some justification for disturbing the decision of the adjudicator.

6. On the force of the same S.16(3), Counsel for the appellant further pressed upon this Court to remit this case back to the adjudicator for an investigation to be conducted on an allegation of the appellant, which was said to have been overlooked. It was suggested what Miss Leung of the appellant had maintained at the hearing was that the stains on the small 9' x 6' Tientsin carpet and the 9' x 12' large one were of precisely the same nature. The respondent had agreed that the stains on the 9' x 6' small Tientsin carpet were not caused by the cleaning process of the appellant. Therefore, so counsel contended, if there is any substance in the alleged identical nature of the stains on both carpets, the causation of the stains on the large 9' x 12' Tientsin carpet could not or would not likely have been any negligent cleaning.

7. Loose remarks made in the course of the proceedings before the adjudicator are susceptible of the interpretation sought to be supported by the appellant. These appear at p.p. 15 & 19 of the Appeal Bundle:

"I wish to point out stains in the small carpet are same as stains in big carpet.";

"I wish to add that the stains, so called, in the large carpet were also seen in the small carnet.";

"According to my experience, yellow stains appears immediately or not at all.";

"I realized this hard glossy marks same as on the small carpet."

8. In her questioning of the appellant's employee, "sifu" Poon Kong, the same theme could possibly be claimed to have been obliquely broached :

"Q :    Is there any chemical in our company, which would cause yellowish marks in carpet?"

"A :    From my experience, during work process especially by machine no obvious marks could be caused."

9. But the short point is : was this in fact part of the appellant's defence? Miss Leung of the appellant never did make known to the adjudicator that such was part of her defence. Miss Leung could have simply raised the issue that the nature of stains was the living proof of a false claim against her cleaning company. After all, Miss Leung claimed to be a carpet-cleaning expert, and little difficulty could have been expected in an attempt at exculpating her company from blame on the very nature of the stains. I also derive no assistance from the observations made in the negative report of Labtest Hong Kong Limited appearing at p.43 of the Appeal Bundle. In my judgment, the answer can readily be found in Exh. 'D1', Miss Leung's statement, a translation of which is given at p.49 of the Appeal Bundle. There Miss Leung set out her defences. She prefaced it thus : "My defence is as follows :" Suffice it for me to say that no point was taken, expressly or by implication, on the nature of allegedly comparable stains on both carpets. It was thus not a "matter which (the adjudicator might) consider relevant" to inquire into. This Ground of Appeal must therefore also fail.

10. Both the husband and the maid of the respondent committed themselves in statements that before cleaning, the 9' x 12' large Tientsin carpet was without the stains complained of and that these stains, then less conspicuous, were noticed on its return.

11. The appellant's case was that the large 9' x 12' Tientsin carpet displayed no stains when it was returned. It was claimed that "they were not caused by stain removing solution" even on Miss Leung's subsequent visit but that they "were caused by some other reasons which are unknown to" her.

12. In addition to the statements of the respondent's spouse and her maid, the statement of one Miss Ling of the Consumer Council was procured. Miss Ling visited the residence of the respondent and inspected the large 9' x 12' Tientsin carpet. She verified the presence of "patches of faint stains on the carpet". She "believed that the carpet was ruined during the cleaning process". The Consumer Council is known to have little teeth. Even so, verification is understandably desirable before a complaint is processed and persuasive actions are taken. The adjudicator referred to the belief of Miss Ling. Nothing in the record suggests that the adjudicator found facts on such a belief. There is hardly any real justification for condemning the adjudicator as having committed an error as grave as elevating a belief to a concluded fact. The reference to Miss Ling's verification of the presence of the stains can best be explained by the prevarication of Miss Leung who at one stage gave the impression of refusing to acknowledge their presence on the large 9' x 12' Tientsin carpet. For whatever reasons. Miss Ling's observations were included, the decision of the adjudicator is well supported by the overwhelming evidence that the large 9' x 12' Tientsin carpet was returned with these stains.

13. The return of the large 9' x 12' Chinese carpet was delayed. The delay aroused suspicion and no satisfactory answer was given. It was subsequently re-delivered wet after many demands. Despite the unanimous assertion of the respondent, her husband and her maid, Miss Leung of the appellant made bald denials that there were noticeable stains on the large 9' x 12' Tientsin carpet on its return. This presupposes that there subsisted a liability well founded unless the damage could be otherwise denied. The adjudicator found that stains did appear "immediately" after cleaning. The subsequent conduct of Miss Leung left much to be desired and was equally defensive. There was evidence for the adjudicator to conclude as she did that the stains must have been caused by the appellant's cleaning process.

14. Tried as I have, I can find little to challenge the $6,000 awarded in favour of the respondent as being unreasonable or excessive. There was evidence of a replacement cost of $10,000. The estimates from men in the trade could be legitimately accepted by the adjudicator, although there was room for better expertise. There is no market for a second-hand used Tientsin carpe. It was open to the adjudicator to have awarded $10,000 to the respondent. Then, obviously the damaged 9' x 12' large Tientsin carpet would have had to be turned over to the appellant. The respondent was merely given $6,000, not $10,000. She has not been fully compensated even if a replacement could be found. $6,000 does not appear to be unreasonable with the respondent permitted to retain the use of the damaged 9' x 12' large Tientsin carpet, particularlly when it is now estimated to be of no marketable value. The respondent had never been minded to dispose of her 9' x 12' large Tientsin carpet. She treasured it and because of it the small 9' x 12' Tientsin carpet was additionally acquired. The sale value of the 9' x 12' large Tientsin carpet without the stains was estimated to he $6,000. Evidently, the respondent could not have been forced to sell her large 9' x 12' Tientsin carpet at any price, let alone $6,000.

15. Award of $6,000 cannot be said to be insupportable or excessive. I invited Counsel for the appellant to offer one single illustration of the award of $6,000 being indefensible. Counsel declined the invitation. It is fair to say that the retention of the damaged unmarketable large 9' x 12' Tientsin carpet must have been envisaged by the adjudicator. But the adjudicator has not, in fact, given such direction. There is no mention of retention or use of the damaged large Tientsin carpet in her determination. In no way, therefore, can the assessment of the adjudicator be impugned as being erroneous or wholly excessive.

16. The presentation of the case before adjudicator seemed to be much fuller than that of most usual case brought before the Small Claims Tribunal. Inquisitorial investigation was properly conducted of the respondent's claim for $8,000. At the conclusion, $6,000 was awarded as damages. For the reasons I have given, none of the findings of fact nor the quantum of damages awarded can be faulted. The appeal therefore stands dismissed.

17. Miss Leung of the appellant must have felt greatly aggrieved by the determination of the adjudicator. Matters are now affirmed to have been properly canvassed. Miss Leung of the appellant has also had the advantage of the able assistance of Mrs Barnes. It is hoped that her sense of grievance can finally be laid to rest.