LO WEI v. WISER (HONG KONG) LTD AND OTHERS

DCCJ 4082/2013

[2023] HKDC 1735

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4082 OF 2013

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JUDGMENT

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BACKGROUND

1.  The Plaintiff (P) claims against the 1^st, 2^nd and 3^rd Defendants (Ds) for causing water seepage to P’s property situated on 19/F, Ning On Mansion, Taikooshing, Hong Kong (“P’s Premises”). P is the registered owner of the P’s Premises and have been residing there with her husband and son, George Rentao Wu (“George”) since the 80s.

2.  D1 is a limited company and registered owner of a premises immediately above P’s Premises on 20/F, Ning On Mansion, Taikooshing, Hong Kong (“Ds’ Premises”). D2 and D3, who are the shareholders and directors of D1, resided at the Ds’ Premises with their daughter between 2004 and August 2013.

3.  This present proceedings concern about water seepage which has continuously affected P’s Premises over 10 years since February 2012. P divided the seepage period into four periods in the Amended Statement of Claim (“ASOC”), namely:

First Seepage: From about 06/02/12 to about 08/02/12 (“the 1^st Seepage”);

Second Seepage: From about 22/02/12 to about 19/08/13 (“the 2^nd Seepage”);

Third Seepage: From about 06/06/16 to about 10/01/17 (“the 3^rd Seepage”); and

Fourth Seepage: From about 13/01/17 to present (“the 4^th Seepage”)

4.  It is averred by P that the continuous seepage was caused by different sources throughout these four periods, all originating from Ds’ Premises. P’s cause of action in the present case includes negligence, nuisance, breach of deed of mutual covenant, and infringement of section 34H(1) of the Building Management Ordinance, Cap 344. P is seeking injunctive relief and damages of HK$461,600.

5.  Ds accept liability for the 1^st Seepage but dispute liability for the 2^nd, 3^rd and 4^th Seepage. Ds invited the Court to determine the amount of damages for the loss and damages arising from the 1^st Seepage.

LEGAL PRINCIPLES

6.  The legal principles concerning water seepage cases are agreed between parties. It is P’s duty to prove on the balance of probabilities that the Ds’ Premises being the source of seepage and there is no presumption that the source of water must come from the premises immediately above the premises suffering from water seepage. It is trite that Ds have no duty to find out or identify the source of the water seepage and do not bear any burden to prove its innocence.

7.  On the same token, it is not the Court’s task to identify the true source of the water seepage. The Court is to determine if P could prove, on the balance of probability, that the source of seepage originated from Ds’ Premises on each and every of those alleged periods.

1^st Seepage

8.  Comparing with the 2^nd, 3^rd and 4^th Seepage, the 1^st Seepage could be described as an “one-off” incident that was originated from the water pipe of Ds’ water heater. It is worth noted that the main water supply to Ds’ Premises was turned off by the Management Company of Taikooshing (“MO”) on 6 February 2012, i.e. the date subsequent to the complaint and the water pipe was fixed on 9 February 2012. It was averred by P that the water seepage affected the bathroom and master bedroom but was improved dramatically shortly after the water supply was turned off.

2^nd Seepage

9.  About two weeks after the 1^st Seepage, i.e. on or about 22 February 2012, P once again noticed water seepage at the bathroom and the master bedroom ceiling. It is P’s case that the 2^nd Seepage was caused by defective flushing supply pipe or pipe of water closet at Ds’ Premises because of the following reasons:

(i)  Both the MO and the plumber engaged by Ds on 22 and 26 February 2012 confirmed that the water seeping through P’s Premises was salt water;

(ii)  The toilet flushing test and bathroom spray test conducted at Ds’ Premises by Ds’ contractor Mr Wu (“Wu”) on 29 February 2012 worsened the water seepage problem in P’s Premises on the very next day;

(iii)  There were crystal-shaped particles formed on the ceiling of the bathroom;

(iv)  Ds’ toilet was removed for examination in September 2012 where no crack was found from the sewage pipes;

(v)  The result of the Reverse Pressure Test conducted at the water inlet system of Ds’ toilet on 10 October 2012 by the Joint Office (“Reverse Pressure Test”) showed significant differences in moisture content when the salt water supply was shut off and turned back on;

(vi)  P’s expert Hau (“Hau”) concluded in his report dated 7 September 2013 (“Hau’s Report 2013”) that the water seepage was caused by the salt water inlet system of the Ds’ toilet.

3^rd Seepage

10.  A new onset of water seepage in P’s bathroom started around 6 June 2016 and P averred that the situation got worsen by 29 December 2016 when P needed to use an umbrella inside the bathroom as concrete fell from the ceiling. The MO tested and opined that the leaking water was fresh water. The fresh water supply of Ds’ Premises was suspended on 1 January 2017 for a few hours where leakage in P’s Premises was observed to have stopped. It is not disputed between parties that Ds performed urgent renovation works on or around 7-12 January 2017 by completely cut the fresh water supply to the concealed water pipes in the walls of Ds’ Premises and re-routed all the fresh water supply through exposed brass pipes (“Pipe Work”).

11.  P averred that the water dripping improved dramatically after the Pipe Work but she could still notice water seepage at the crack of the bathroom’s ceiling. It is P’s case that the 3^rd Seepage was caused by not only the defective fresh water pipe, but also inadequate waterproofing facility in Ds’ bathroom, which is the sole cause for the 4^th Seepage.

4^th Seepage

12.  It is not disputed that the water seepage problem still subsisted at the time of the trial. As seepage did not stop after the Pipe Work, the Joint Office carried out few tests at Ds’ Premises between March to August 2017, which included (i) coloured water tests on the drainpipes; (ii) water pond tests on the floor slab and (iii) water spray test on the enclosing wall of Ds’ bathroom. Although none of these test results was able to ascertain the source of leakage, P premised her case on Hau’s inspection of P’s Premises on 18^th December 2017, and thus his findings. In Hau’s expert report (“P’s 2017 Report”), he eliminated all possible sources of leakage such as external wall and defective pipes, and concluded that the inadequate waterproofing facility in Ds’ bathroom would be the only possible source of water seepage. It is worth noted that Hau did not inspect Ds’ Premises to draw such conclusion.

EVIDENCE ANALYSIS

13.  It could be seen from the brief analysis above that extensive tests were conducted by various parties at both P’s and Ds’ Premises over the years. P’s Counsel, Ms Denise Tso, prepared a helpful summary of all the tests conducted from 2012 to 2019. While I do not intend to recite the whole summary here which consists of 17 pages, it is noted that the preliminary tests on each of these alleged seepage were conducted by the MO. Although some of these tests were reported in the incident reports prepared by the MO, neither the detailed methodology nor qualifications of those who conducted the tests were made known in these reports. The probative value of these test results are therefore insignificant and I would therefore place little weight on these results other than those agreed between parties.

14.  The following table is an extract of all tests conducted between 2012 and 2019:

Date	Carried By	Methodology	Result	Conclusion
5/4/12	FEHD	n/a	High moisture readings; crystal-shaped particles were found at the ceiling of P’s bathroom	n/a
11/4/12	FEHD	Flushing Test Colour water test at Ds’ sink, toilet and shower stand	No leakage was found at the water drainage of Ds’ Premises	Seepage was not from water drainage system of Ds’ Premises
30/8/12	Joint Office	Ponding test; Spray test; Colour water test	n/a	Source of seepage cannot be identified
10/10/12	Joint Office	Reverse Pressure Test of the flushing water supply of Ds’ bathroom	No water dripping was observed on the seepage area; Moisture content fluctuated	No solid evidence showing that the water seepage was caused by defective flushing water supply pipe of Ds’ bathroom
14/6/13   Hau’s Report 2013	Hau	Visual inspection; Electrical conductivity sensing; Infrared scan; Microwave scan; Water sample test	Concrete peeling off Mould were found on ceilings of the bathroom, master bedroom and living room of P’s Premises High moisture contents (over 35 degree) were found above P’s toilet Suspected seepage was found at P’s bathroom ceiling near the window High level of moisture was detected at the ceiling near the bathroom door and window Salt water was found in the concrete sample collected from the bathroom ceiling but with only small amount of ammonia	Bathroom’s seepage was caused by the water inlet system of Ds’ toilet Water seepage found at the master bedroom and living room ceiling was caused by diffusion of the seepage in P’s bathroom Cracks were found on the external wall of the bathroom of P’s premises, but no signs of seepage could be found
April & November 2014   Joint Inspection 2014	Hau and Ds’ Expert Denny Yeung Tak Wah (“Yeung”)	Colour water test at Ds’ toilet, shower tray, wash basin; Ponding test of Ds’ bathroom; Reverse Pressure Test of Ds’ bathroom water supply; Water Spraying Test on P’s external wall	No colour water was found at P’s Premises No decrease in the moisture content of P’s Premises was detected Moisture level in P’s Premises increased after water spraying	Hau opined no source of water seepage could be found at Ds’ Premises Bathroom of P’s Premises was affected by external wall Yeung opined no water seepage was detected in P’s Premises
6/3/2017	Joint Office	Colour water test on the drainpipes of Ds’ Premises	n/a	Unable to ascertain the source of leakage
Between April and August 2017	Joint Office	Ponding Test of Ds’ bathroom; Spray test	n/a	Unable to ascertain the source of leakage
18/12/2017   Hau’s Report 2017	Hau	Visual inspection; Conductivity sensing; Infra-red scan; Microwave scan	Detached / peeling-off concrete was found at P’s bathroom ceiling   Over 35 degree of moisture/ lower temperature was recorded on P’s bathroom and master bedroom was detected.	P’s master bedroom and bathroom were affected by water seepage, which was caused by inadequate water proofing facility of Ds’ bathroom. No seepage was found from external wall of P’s bathroom
March 2019   Joint Inspection 2019	Hau and Yeung	Colour water test Microwave Scan	No colour water was found on the ceiling of P’s bathroom   Moisture content of one spot at the P’s living room’s ceiling increased   High moisture contents were recorded from the ceiling slab of P’s Premises	Hau opined that the high moisture content readings were signs indicating water seepage due to diffusion from Ds’ Premises Yeung agreed P’s Premises was affected by water seepage but could not justify the source of seepage

15.  It is Ds’ case that the source of the 2^nd, 3^rd and 4^th Seepage remained a mystery. It must be borne in mind that the table above shows that none of the tests conducted by FEHD/the Joint Office could determine the source of seepage.

2^nd Seepage

16.  The Court gained an impression that P firmly believed the 2^nd Seepage was caused by defective water inlet system of Ds’ toilet because of the test conducted by the MO on 22 February 2012, which showed that the water droplets found on her ceiling being salt water. She refused to acknowledge the possibility that water could be permeated through the crack in the external wall of P’s bathroom even when MO offered to repair the wall so to eliminate it as a source of leakage. The crack in the wall was not repaired until May 2017 which was more than a year after the onset of the 4^th Seepage. In such circumstances, the Court could not eliminate the crack being a possible source of seepage but to weight against other evidence.

17.  It appeared that P wishes to rely on various aversion/ findings made by the technicians of the MO and the FEHD to prove that the 2^nd Seepage was caused by the defective salt water inlet system. However, none of these aversions were documented in the FEHD/Joint Office Report and the Court would not put any weight on any of these hearsay evidence.

18.  Should there be defects in the salt water inlet system of Ds’ toilet as suggested by Hau, the flushing of the toilet (which is salt water) would contribute to the seepage in P’s Premises.

19.  My attention was therefore drawn to the flushing tests that were conducted by Wu and FEHD respectively on 29 February 2012 and 11 April 2012. Despite both P and her son George gave evidence that the water seepage turned worse the day after Wu’s flushing test, no evidence suggested any deterioration after the flushing test conducted by the FEHD. In this regard, the so-called aggravation caused by the flushing test on 29 February 2012 was only indicated by the condition on the clothes in the wardrobe of P’s bedroom, which was found to be damp and moldy on 1 March 2012. I accepted Mr Cheng’s submissions that there is no evidence on the condition of the wardrobe before that day and it is impossible to conclude the flushing test aggravated the seepage. I therefore have hesitation in drawing correlation between the flushing system of Ds’ toilet and the 2^nd Seepage.

20.  Ds invited the Court to give more weight on the tests results of the Joint Office, including the Reverse Pressure Test that was aim to detect any defects in embedded water supply pipes. It is plain that none of the tests conducted by the FEHD and/or Joint Office could yield any positive results showing Ds’ Premises being the leakage source. Mr Cheng argued that the Reverse Pressure Test carried little probative value as the test requires the record of rate of water dripping at the seepage area, yet there was no water dripping on the seepage area throughout the test.

21.  P agreed there was no water dripping found at the time when the Joint Office conducted the Reverse Pressure Test, and no evidence from P offered to explain when the water dripping stopped before the test was conducted. Ms Tso could only made bare allegations that the water stopped dripping because Ds travelled frequently and they could have turned off the salt water supply altogether as early as March 2012 to minimize the usage of salt water. With great respect, these assertions were made without any basis and are not accepted by this Court.

22.  Ms Tso also asked the Court to give weight to the moisture content measured by the Joint Office in the Reverse Pressure Test despite it was not conducted under normal circumstances (i.e. no water was dripping). She contended that the record could still demonstrate a drop of moisture reading after Ds’ salt water supply was turned off and rose after it was turned back on. Should the Court is to accept these moisture readings be meaningful even in the absence of water dripping, P failed to explain why the Joint Office could not confirm Ds’ defective flushing water supply pipe as the source of seepage.

Hau’s Report 2013

23.  In regard to experts’ opinions, the Court was presented with Hau’s Report 2013 and the Joint Report 2014. Hau’s Report 2013 was made without access to Ds’ Premises and thus the methodologies he adopted would be restricted to moisture readings from P’s Premises. Hau agreed under cross-examination that the Reverse Pressure Test Result was never presented to him for preparation of his Report 2013. It appears that the only piece of evidence that allowed him to conclude the source of leakage being Ds’ defective salt water inlet system was the leaking water being saltwater. The Court finds such conclusion was based on speculation more than scientific examination.

24.  The Joint Inspection was conducted in April and November 2014. Both experts opined that no source of water seepage could be found at Ds’ Premises and Hau found that the P’s bathroom was affected by seepage from the external wall rather than Ds’ saltwater inlet system as he averred in his Report 2013.

25.  P argued that the Joint Expert Report 2014 has little probative value as Ds’ Premises underwent a major renovation in August 2013 (“Renovation 2013”) including some piping work in the bathroom and the replacement of a salt water valve, and thus the source of leakage was rectified by the time of the Joint Inspection. It is therefore P’s case that the salt water leakage problem was resolved after the Renovation 2013.

26.  It would only be logical reasoning to attribute the cause of leakage to Ds’ Premises should the Renovation 2013 put a stop to the water seepage in P’s Premises. However, as Mr Cheng rightly pointed out that any alleged abatement of water seepage after August 2013 was glaringly absent in the pleadings, and evidence from P seemed to suggest the otherwise.

Whether water seepage stopped after the Renovation 2013?

27.  I must confess that the Court had difficulty in understanding from P’s case whether there was ever any break of continuity amongst all these four seepages based on the following observations:

(a)  Both the Statement of Claim (dated 8 October 2013) and the Reply (dated 13 January 2014) did not refer to any abatement of seepage;

(b)  P did not mention about the alleged abatement in the Amended Statement of Claim (dated 21 May 2020);

(c)  The alleged abatement was not referred to in any of the letters from P’s legal representatives shortly after the completion of the Renovation 2013 in January to February 2014;

(d)  The Joint Report 2014 did not indicate that P disclosed such major change to either of the expert, in fact Hau was still trying to locate the source of seepage at the Joint Inspection in April 2014;

(e)  P never mentioned about such abatement in her two witness statements, on the contrary, they casted an impression that water never stopped leaking from 2012 till now;

(f)  The only evidence of abatement was mentioned by (i) Yeung in the Joint Expert Report 2014 where he considered no water seepage could be detected in P’s Premises after inspection and (ii) George in his witness statement that was filed on 4 December 2020, i.e. 7 years after the Renovation 2013.

28.  The Court also took into consideration that the level of moisture content that was detected at P’s bathroom in Hau’s Inspection in June 2013, which was done prior to the Renovation 2013 and those data collected at the Joint Inspection in April 2014. The results of these two inspections reflected high level of moisture content persisted and I extracted the following conclusions from Hau’s comments in his Report 2013 and Joint Report 2014:

Hau’s Report 2013	Joint Report 2014
7.1.2  根據導電感應法，於對“物業”浴室天花進行的22點檢測位置中，有3點檢測位置錄得高於35度的濕度讀數，即屬於明頸渗漏。該3點錄得高濕度的位置均位於靠近窗邊的位置。錄得高濕度的位置為“物業” 浴室坐廁上方位置。（根據第6.1.2.2項）	7.1.1.1  根據導電感應法的檢測結果，在浴室天花的20點檢測中，有4點檢測到偏高的濕度。（高濕度位置可參閱第6.1.2.2表列内讀數高於35的位置）。
7.1.3  根據導電感應法，於對“物業”浴室天花鋼筋外露位置進行的8點檢測位置中，有1點檢測位置錄得高於35度的濕度讀數，即屬於明顒滲漏。該點錄得高濕度的位置均位於靠近窗邊的位置。該位置為“物業”浴室坐廁上方位置。（根據第6.1.2.3項）	7.1.1.2  根據導電感應法的檢測結果，在鋼筋外露位置的8點檢測中，有7點檢測到高濕度。（高濕度位置可參閱第6.1.2.3表列内讀數高於35的位置）。
7.1.4  根據導電感應法，於對“物業”浴室牆身與天花接口位置進行的11點檢測位置中，所有11點檢測位置均錄得高於 35 度的濕度讀數、即屬於明顯滲漏。（根據第6.1.2.4項）	7.1.1.3  根據導電感應法的檢測結果，在浴室牆身與天花接口位置的15點檢測中，有11點檢測到高濕度。（高濕度位置可參閱第6.1.2.4 表列內讀數高於35的位置）。

29.  According to the above analysis, it is only logical to infer that the seepage still persisted at the time of the Joint Inspection in April 2014. Although the Court accepted Ms Tso’s contention that water trapped between the floor slabs takes time to disperse, the test results above indicated that the seepage areas and the moisture readings did not reduce the slightest. The chance of water being trapped for 7 months (since October 2013 after the completion of the Renovation 2013 to the Joint Inspection 2014) without the slightest dissipation would be relatively low. Last but not least, the Court also bears in mind that Hau said he could not tell whether the water seepage problem improved in 2014 by looking at these figures.

30.  Both Hau and George attributed the water seepage in 2014 at P’s Premises to rainwater. Such aversion, with respect, was nonsensical. The crack in the external wall had been there since the onset of the 2^nd Seepage (or earlier), and it would be arbitrary to say the rainwater did not contribute to the seepage between February 2012 and August 2013, but only became a source after the Renovation 2013.

31.  Considering the aforesaid matters, the Court finds that the overall evidence did not support P’s case (which was not pleaded) that the water seepage came to a halt after the Renovation 2013. And since water leakage persisted even after Ds changed all the piping in the bathroom, P failed to establish on the balance of probability that the salt water inlet system being the cause of the 2^nd Seepage.

3^rd and 4^th Seepage

32.  P split the seepage from June 2016 up till now into the 3^rd and 4^th Seepage, but in fact the seepage never breaks throughout this period. P contends that these two seepages are distinct by two alleged sources, first the fresh water pipe of Ds’ Premises followed by defective waterproofing facility in Ds’ bathroom.

33.  P said water droplets were found on the ceiling of her bathroom in or around June 2016 and the situation became unbearable on 31 December 2016. Fresh water supply was suspended to Ds’ Premises on 1 January 2017 for about 4 hours by MO for observation; it was recorded in the incident report that the dripping decreased after 3 hours of suspension but increased again shortly after the water supply was turned on.

34.  As averred by P, the water seepage problem somehow improved drastically after the Pipe Work was completed on or around 12 January 2017 though it did not completely resolve the problem. The two letters from the MO to D1 on 11 September 2017 and 20 November 2017 showed that:

i.  external wall crack was repaired on 16 May 2017 and the defective waterproofing and finishing at that location were replaced;

ii.  inspection was carried out by the MO at P’s Premises on 5 September 2017 and the bathroom ceiling was found wet (without any moisture reading);

iii.  the leakage was very minor in nature but is continuous; and

iv.  further inspection was carried out on 10 October 2017 with relatively high moisture readings detected at some part of P’s Premises.

35.  Since Ds did not take any action after the Pipe Work and the water seepage persisted, P contacted the Joint Office and Hau to make further examination.

Joint Office Inspection 2017

36.  Evidence suggested that the Joint Office performed colour water test, ponding test and spray test in Ds’ bathroom on various occasions between March and August 2017 but none of these tests could ascertain the source of leakage.

Hau’s Report 2017

37.  Once again, Hau did not gain access to Ds’ Premises and thus the tests conducted were restricted to moisture contents reading by way of infra-red scan, microwave scan and electrical conductivity sensing. Hau concluded that the 4^th Seepage was caused by defective waterproofing facility in Ds’ bathroom based solely on the high moisture readings.

Joint Inspection 2019

38.  Experts conducted colour water test at the floor, shower tray, wash basin and toilet bowl of Ds’ Premises but no colour water could be detected on the ceiling of P’s Premises. The high moisture contents were recorded by microwave scan from the ceiling of P’s Premises. Hau remained his view that the results indicated water seepage was due to diffusion from Ds’ to P’s Premises. While Yeung agreed that P’s Premises was affected by water seepage, he opined there was no solid evidence to justify the source of seepage.

The causation of the 3^rd Seepage

39.  Ms Tso said the cause of the 3^rd Seepage is relatively straightforward and it was the defective fresh water supply at Ds’ Premises which triggered the leakage. On the other hand, Mr Cheng argued that P failed to show the causation as there was a lack of scientific explanation since no tests were conducted during that period of time.

40.  As dictated by logical reasoning, strong casual link could be drawn if the Pipe Work did put a stop to the alleged leakage but the difficulty in this case is that the water seepage was and is continuing. As such, it is the Court’s view that the 3^rd and 4^th Seepage could not be treated as two isolated events.

41.  My attention was drawn to the severity of leakage from June 2016 up to now. P averred that the water seepage before 28 December 2016 was not as serious but water droplets could be found from time to time on the ceiling of the bathroom, and such phenomenon must be contrasted with the circumstances in the last few days of 2016 when water was said to be dripping continuously.

42.  The sudden deterioration happened on or around the eve of 2017 New Year, and the MO’s course of action taken on 1 January 2017 showed that water dripping was reduced significantly once the fresh water supply was turned off at Ds’ Premises, but worsened when it was turned on.

43.  Although I decline to put much weight on the scientific test results conducted by the MO, such observations from MO were factual evidence that allows the Court to have a better understanding of the circumstances at the material times. Notwithstanding the severity of the seepage problem before 28 December 2016 was not recorded. I consider it is just and appropriate to draw a strong correlation between Ds’ Premises’ fresh water supply and the severe water dripping in P’s Premises between 28 December 2016 to 12 January 2017 based on the evidence mentioned hereinabove.

44.  On the other hand, the Court bears in mind that P’s Premises could have suffered from more than one source of leakage at any point of time. The sudden deterioration and significant improvement after the Pipe Work showed that the severe dripping was more likely than not triggered by an independent cause rather than a gradual deterioration from the earlier seepage problem. The continuous but mild-in-nature seepage also explained that the earlier seepage problem has never been solved and thus likely to be originated by sources that cannot be rectified by the Pipe Work.

45.  Based on the above, the Court is of the view that the water seepage suffered by P during the 3^rd Seepage was comprised of more than one source. The defective fresh water supply of Ds’ Premises should be seen as an intervening episode within the 3^rd Seepage period that triggered the severe water dripping on or around 28 December 2016 to 12 January 2017 (“the Intervening Period”). Ds are therefore liable for the damages caused to P within this period.

The causation of 4^th Seepage

46.  Insofar as evidence presents, the seepage problem before and after the Pipe Work was similar in kind, and thus the Court forms a view that the 3^rd and the 4^th Seepage could be originated from the same source. It is P’s case that the 4^th Seepage is caused by defective waterproofing facility of Ds’ bathroom notwithstanding the negative results from all tests conducted by the Joint Office and Joint Inspection 2019.

47.  In this regard, P relied on Hau’s Report 2017 which suggested high moisture contents were detected at the ceiling of P’s bathroom ceiling. I must however share the view of Mr Cheng that the findings of Hau was unreliable because first, he did not have the chance to inspect the floor slab between P’s Premises and Ds’ Premises at all and it would be unsound to jump to the conclusion of defective waterproofing facility before knowing the composition of the said floor slab. Secondly, the microwave moisture diagrams produced by Hau was inherently futile because he did not have the information on the thickness of the floor slab. So even Yeung, as pointed out by Ms Tso, failed to offer explanation as to why he believes Hau’s conclusion is flawed, the detailed analysis together with relevant authorities submitted by Mr Cheng has aptly explained so. In such circumstances, I find that the basis for Hau to conclude high moisture content diffused down from Ds’ Premises was a weak one.

48.  When the results from the microwave moisture diagrams cannot be relied on, the only results left for consideration would be the colour water tests performed by both the experts and the Joint Office, which all presented with negative results. Colour water test is a widely accepted methodology to detect leakage caused by drainage problem and defective waterproofing membrane.

49.  Ms Tso relied on the Professional Guide to Water Seepage issued by the Hong Kong Institute of Surveyors where it says “the dye test is not always successful” and that a negative dye test “cannot be taken as definite evidence against the suspected source”, and thus asked the Court to place more weight on Hau’s findings than the colour water test results.

50.  Indeed, courts should never take experts’ comments on their face value but to be critical when analyzing all available evidence. And it was recognized in Lam Ting Kwan v. Teamwell Corporation Ltd [2019] HKDC 1593 that negative results of dye water test do not conclusively show that there is no seepage. P must however need to appreciate that they are facing with not only one, but multiple negative dye test results from both experts and the Joint Office. The significance of cumulative effect of all these negative results were discussed by Mr Cheng in his submissions with reference to Choy Shok Chun v. Yu Hon Keung [2022] HKDC 671:

89. As a general proposition, a dye water test returned negative does not necessarily preclude establishment of the seepage path. However, a series of negative dye water tests may well evidence against the seepage path as alleged by the claimant…

90. … If the water seepage is so serious as alleged by P, one would reasonably suppose that the cracks of the floor slab/ walls of 6/F Bathroom (that led to the seepage) would have been quite glaring, or at least that some coloured-water droplets must have been able to reach the 5/F Property ceiling.

93. … There is no allegation, let alone evidence, saying that D has adopted some temporary stop-gap measures, and hence the results of all the dye water tests are negative. One must not ignore the fact that the dye water test in this case are performed by different professionals at different times, and the results of all these tests are negative. The cumulative effect of all these negative results is loud and clear. In my judgment, P has not adduced satisfactory evidence to show that why the cumulative effect of all these negative results should not be given weight.”

51.  Likewise in this case, P described the leakage was so serious that a thin stream of water would seep out from the crack of her bathroom’s ceiling every time when she heard sounds emitted from the shower/sprinkler of Ds’ bathroom. If the water seepage is as serious as alleged by P, one can reasonably expect that some coloured-water droplets must have been able to reach the ceiling of P’s Premises in all or one of the colour water tests. In fact, Hau accepted under cross-examination that if the water seepage were as serious as P described, it would be impossible for the colour water test to return a negative result.

52.  Ms Tso also criticized Yeung for not stating in the Joint Report 2019 that further tests, such as tests on the flats above Ds’ Premises could have been done to identify the source of the seepage. With respect, this is a criticism without force as defendants in water leakage case are not asked to find out or identify the source of the leakage or to prove its origin did not come from their own premises.

53.  To conclude, P has failed to prove the source of leakage of the 3^rd and 4^th Seepage besides the Intervening Period.

CONCLUSION ON LIABILITY

54.  P does not have to prove the cause of seepage to a certainty but has to establish on a balance of probabilities, the source of water was from Ds’ Premises or in situations where all other possible sources of leakage have been eliminated leaving the Ds’ Premises to be the only possible source.

55.  By reasons of the aforesaid, the Court makes the following findings:

1^st Seepage:  Ds admitted to liability by way of the Defence;

2^nd Seepage:  P fails to prove Ds’ Premises was the source;

3^rd Seepage:  P fails to prove Ds’ Premises was the source for the entire period but the Intervening Period; and

4^th Seepage:  P fails to prove Ds’ Premises was the source

56.  In terms of Ds’ liability in tort of nuisance in respect of the 1^st Seepage and the Intervening Period, the Court is of the view that Ds took immediate remedial step to rectify the situation in both occasions.

RELIEF

57.  The assessment of damages is difficult because P has never repaired her premises since the onset of the 1^st Seepage, and the condition of her premises has been deteriorating due to continuous water seepage in the last decade.

58.  P did not produce any evidence demonstrating the actual damages caused after the 1^st Seepage. Evidence suggests that the only sights of leakage was P’s bathroom which was rectified within 4 days after P’s complaints.

59.  As analysed above, there was no consistent evidence from P suggesting when the 2^nd Seepage abated. Insofar evidence suggests, P complained of moldy living room from the onset of the 2^nd Seepage and concrete in the bathroom was peeling off exposing the rusty reinforcing bar at times when Hau made his first inspection in June 2013.

60.  No actual damages were recorded for the 3^rd Seepage and it would be futile to rely on any evidence suggesting damages suffered in the 4^th Seepage, which Ds are not found liable for.

61.  Ds should only be liable for damages occasioned from the 1^st Seepage and the Intervening Period. P did not break down the costs of restoration for each seepage. The Court bears in mind that P’s bathroom was in such a dire state that required immediate repair before the Intervening Period. Hence, it would arbitrary should the Court impose a sum on Ds to rectify P’s bathroom to a state before the Intervening Period.

62.  Ds submitted that a nominal damage of HK$1,000 would be sufficient for the 1^st Seepage as it lasted for at most 3 days.

63.  Ds’ suggested sum is on the low side. The Court finds that a sum of HK$5,000 would be reasonable with an assumption that P would engage a contractor to repaint the ceiling of the bathroom after the 1^st Seepage.

64.  It would be preposterous to suggest any sum Ds liable to restore P’s Premises to the state before the Intervening Period, as P’s Premises was severely damaged by the 2^nd Seepage already. The Court considers P could be sufficiently compensated under the ‘loss of enjoyment’ in respect of the damages P suffered under the Intervening Period.

65.  P claims for HK$250,000 for loss of enjoyment due to the water seepage she has undergone for more than a decade since 2012. There is no evidence suggesting that any of the areas in P’s Premises were rendered unusable as a result of the 1^st Seepage, I therefore consider it is inappropriate to make any awards under this head.

66.  As to the loss of enjoyment of the Intervening Period, I consider a sum of HK$7,000 would be more than sufficient to reflect the inconvenience suffered by P and her family during the said period.

67.  It is plain that no injunction would be granted as P fails to prove the continuing seepage is caused by Ds.

CONCLUSION

68.  As a summary, P fails to prove that Ds’ Premises as the source for the 2^nd and 4^th Seepage. The Court therefore dismissed P’s claim in respect to the 2^nd and 4^th Seepage but a partial award in respect of the 3^rd Seepage. The total award payable by Ds to P is therefore assessed at HK$12,000.00. There will be interest for the HK$5,000 awarded under the 1^st Seepage at half judgment rate from the date of the writ until date of judgment and thereafter at judgment rate until full payment. The interest for the HK$7,000 awarded under the 3^rd Seepage will be at half judgment rate from the date of the filing of the Amended Statement of Claim and thereafter at judgment rate until full payment.

69.  Costs should follow the event. There be a cost order nisi that 80% of the costs of these proceedings (including all costs reserved) be to Ds, with certificate for counsel, to be taxed if not agreed. The above order nisi shall become absolute within 14 days hereof.

70.  Lastly, it remains for me to express my gratitude to counsels from both sides for their helpful assistance rendered to the Court.