BORN CHIEF CO. LTD. t/a BEIJING RESTAURANT v. GEORGE TSAI and Another

1992, No.A781

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The plaintiff, Born Chief Company Limited trading as Beijing Restaurant, operated a restaurant on the upper ground, 1st and 2nd Floors, Lising Court, 34-36 Granville Road, Tsimshatsui, Kowloon, which I will hereafter refer to as ("the Restaurant").

2. At all material times, the plaintiff was the tenant and occupier of the Restaurant. During the early morning of 15th October 1991, the Restaurant became flooded with water which had seeped out of Flat C on the 3rd Floor of the building ("the defendants' premises"). The plaintiff suffered loss as a result of water seepage and has brought this action to recover damages from the defendants in nuisance and/or negligence.

Events on 15th October

3. During the early hours of 15th October, Mr Suen Sze Kam, ("Mr Suen"), an employee of the plaintiff, who was sleeping in the room on the upper ground of the restaurant was woken up by water dripping onto him from the ceiling. He and the night-shift watchmen went up to investigate and found that the 1st and 2nd Floors of the Restaurant were already flooded to a depth of about 5". As water was flowing down the staircase, they proceeded upstairs and found water seeping out from under the door of the defendants' premises onto the corridor and down the staircase. Mr Suen noted that no water was seeping out to the corridor from the other units on the 3rd Floor.

4. Mr Suen and the watchmen knocked on the door of Flat C but there was no answer. They then went downstairs and notified the watchman of the building and asked him to contact the owner of Flat C.

5. It would appear that Chao Lee Yu, the managing director of the plaintiff company, Chan Mun Sun ("Mr Chan") of the management company and the 1st named defendant, all of whom gave evidence, were contacted shortly thereafter. Mr Chao arrived at the restaurant at about 6:30 am. He tried to trace the source of the water and went up staircase to the 3rd Floor where he saw water seeping out from under the door of Flat C. The door was still locked and no one answered. They then returned to the restaurant and lodged a complaint with the police. At about 8 o'clock in the morning, the police arrived and shortly thereafter Mr Chao saw the 1st named defendant arrive. Mr Chao, Mr Suen and a police constable (PW3) followed the 1st defendant up to the 3rd Floor. When the 1st named defendant opened the door of Flat C, water which had accumulated inside the unit flowed out even more vigorously. Mr Chao and Mr Suen both said that they saw litter floating on the surface of the water. According to Mr Suen, whose evidence on this point was not challenged, water continued to flow out from the defendants' premises until about 8:00 am in the morning. It is not disputed that the water which flooded the Restaurant had seeped out from under the front door of the defendants' premises.

Defendants' premises

6. I now proceed to describe of the physical layout of Flat C. It is one of four units situated on the 3rd Floor of the building. As the aggregate area of the units is smaller than the surface area of the 2nd Floor, each unit had the benefit of a flat roof which formed part of the relevant premises. As depicted on the plan of the building, Flat C is situated at the top right hand corner of the plan, adjacent to Flat B. So when one looks at the plan, the flat roof of Flat C is bounded on the left by a concrete partition wall about 4' or 4½' in height which separated it from the flat roof of Flat B. There is a wall of similar height to the right of the plan, being the outer wall of the building and immediately in front running along the entire width of the building, abutting the flat roofs of Flats B and C, is a water tank which is of similar height to the walls mentioned earlier. A gutter runs at the base of the water tank along the width of Flats B and C and feeds into a drainage hole situated at the bottom right hand corner of the water tank.

7. There is an opening through which one could go onto the flat roof from inside Unit C. However, there is a conflict of evidence as to whether, on 15th October 1991, a sliding door consisting of two glass panels was in place or whether there was no door at all. I will turn to that later.

8. In any event, the evidence is that the level of the floor of Unit C is higher than the level of the floor of the flat roof. According to the 1st named defendant, the difference in height is 4" and according to PW3, the police constable, it was about 1". On this aspect, I accept the defendants' evidence and so there was effectively a 4" step down to the flat roof when one proceeds from Unit C.

9. The defendants had erected a canvass canopy covering most of the flat roof. This extended from the exterior wall of Unit C and sloped downwards, covering part of the water tank. The purpose of this was to protect the roof from litter and rainwater. It is not disputed that on 15th October there was a hole in the canopy. The 1st named defendant considered the hole to be a small one. In his opinion, a hole that is no bigger than 12" is small. In any event, he acknowledged that the hole is as depicted in the photograph taken in May 1995, except that it was much smaller.

10. At this point, it should be mentioned that the defendants do not actually reside at Flat C, which is used mainly to store documents. According to 1st named defendant, he visits the premises daily in order to feed the dog kept there for security purposes.

Weather conditions

11. Prior to and during the flooding of the Restaurant, heavy rainfall had been recorded in the Tsimshatsui area by the Royal Observatory. 30.1 mm of rainfall were recorded on 14th October 1991 and hourly rainfall amounts recorded during the first seven hours of 15th October were as follows :

Hour (HKT) 1 2 3 4 5 6 7

Hourly rainfall (mm) 10.8 11.3  4.8  2.2 30.4 17.5 16.4

Disputed facts

12. I now turn to the two controversial issues in the evidence :

(a) The doorway in Unit 3 leading to the flat roof.

Mr Chao gave evidence to the effect that when he looked into the defendants' premises, he could see no partition or wall dividing the unit from the flat roof. Mr Suen corroborates this, although he admits that he only looked into the defendants' premises for a very short time. The 1st named defendant maintains that dividing the flat roof from the unit was a doorway fitted with sliding glass doors and to the right of the doorway facing the flat roof was a solid wall. The existence of the wall is corroborated by the evidence of the police constable, PW3, and on this issue, I reject the evidence of Mr Chao and Mr Suen.

That then leaves the question whether sliding doors were in place on the day in question. PW3 is adamant that there were no sliding panels in the opening which he estimated to be about 3' in width. The 1st named defendant is equally adamant that sliding panels were in place. For present purposes, I need not resolve this conflict since according to the 1st named defendant, the sliding panel was left half open. The critical issue is that, on either version, there was an opening of at least 12" in width in Unit C at floor level, through which water could flow without impediment into the unit and seep out into the corridor under the front door once the flat roof became flooded with rainwater to a depth of 4" or so.

(b) The hole in the canopy.

The 1st named defendant admits to there being at least one hole in the canopy on 15th October caused by falling objects and wear and tear through which rainwater could come through. In cross-examination, he attempted to shift his ground to there being several small holes through which only droplets of water could come through. I do not accept that evidence. I believe PW1 who said that when he went up to the defendants' premises together with the police constable that morning, he had an unobstructed view on the left hand side out to the flat roof and saw water pouring down the hole in the canopy. Although I have rejected his evidence as to there being no wall or partition at all dividing the inner unit from the roof terrace, I think he was telling the truth when he said he saw water pouring through the hole in the canopy. That is something that is likely to leave a mark.

Conclusion

13. Counsel for the defendants submitted that but for the existence of the canopy, very heavy rain would have fallen on the flat roof and the canopy helped to divert the water. That may well be true, particularly had the canopy been intact and the rain not of the intensity as that on 15th October. But much of the water landing on the water tank would have flowed back onto the flat roof. Counsel for the defendants also submitted that expert evidence as to the intensity of the rainfall, its impact on the drainage system and the amount of rain that flowed through the hole is necessary before I could reach any conclusion. I do not agree. To me it is a question of common-sense that when you have rain of the intensity and volume that there was on 15th October, falling as it did on a sloping canopy in which there was a hole, under the laws of gravity, water falling down in the vicinity of the hole would have gravitated towards it, causing a concentration of water to fall with force onto that part of the flat roof.

14. I am satisfied that, on the evidence, rainwater had accumulated on the flat roof because of the intensity, duration and volume of rain that fell during the early hours of 15th October. Once it had accumulated to the level of the floor of Unit C, i.e. a depth of 4" or so, it could and did flow, unimpeded, into Unit C, through the opening at floor level of at least 12". The existence of the hole through which rainwater poured and its juxtaposition to the opening, exacerbated the seepage of water into Unit C and down the staircase to the Restaurant.

Liability in law

15. On the question of liability, I think the law is clear and that there is really no dispute that it is a question of applying the law to the facts. There has to be a duty of care, causation and foreseeability of harm. I do not find the authorities cited to be of assistance.

16. There is evidence that a considerable amount of rubbish tended to collect on the flat roof even with the benefit of the canopy. I refer to a passage in a letter which was put to the 1st named defendant in cross-examination and accepted by him. It was a letter written to him from the estate management company and it said this :

"Regular service report had no account of clogging concerning the said drainage before the said incident. However, it is worth to note (sic) that the said flat roof is always littered with falling objects from units above, including plastic bags and clothing. Heavy rainfall must wash the litter all at once towards the drainage outlet which resulted in clogging and excessive flooding."

17. With that knowledge and with the knowledge which the 1st named defendant admitted of the existence of the hole coupled with the fact that anyone living in Hong Kong knows that heavy rainfall which could cause flooding does occur from time to time, I do not see how it can be said that the accumulation of rainwater on the flat roof in exceptionally heavy rainfall was an unforeseeable event. As to the failure to take reasonable care, I find that even on the defendants' version, the defendants should have foreseen that leaving the sliding panel half open, water could come through into the unit without impediment once the flat roof became flooded to the floor level of Unit C and then seep out from under the front door.

18. Based on those facts I have no difficulty in coming to the conclusion that the harm was foreseeable and I accept the plaintiff's submissions in this regard. Therefore, on liability, I find for the plaintiff.

Damages

19. I now turn to the question of damages. I am not in a position to make any order as to damages today. I have pointed out the difficulties to counsel and on this aspect of the matter I will direct that an inquiry as to damages be made by a Master.

20. Costs to the plaintiff.