LEUNG YUNG CHUN AND ANOTHER v. CHAN WING SANG AND OTHERS

HCA12235/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 12235 OF 1998

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J U D G M E N T

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Facts

1. The plaintiffs are the owners and occupiers of a residential property known as Flat A, 26/F, Block 10, Fullview Garden, No.18 Siu Sai Wan Road, Hong Kong ("Flat 26A"). Between 26 March 1993 to 15 January 1998, the 1st defendant was the owner and occupier of a unit ("Flat 27A") immediately above the plaintiffs'. On 16 January 1998, the 2nd defendants acquired Flat 27A and became the owner and occupier.

2. The plaintiffs moved into their flat in 1993 at about the same time as the 1st defendant. The plaintiffs are husband and wife. They lived there together with three daughters. Two of the daughters had since married. The plaintiffs are now living at their flat together with their youngest daughter.

1995 leakage

3. In July 1995, Mrs Tsoi of the plaintiffs discovered that there were water dripping from the ceiling of her flat. She went to Flat 27A and discovered that the 1st defendant ("Mr Chan"), had installed a wash basin and a toilet in one of the bedrooms. Mr Chan promised to carry out the repair and the water leakage stopped in October 1995. Mrs Tsoi considered that the matter had been resolved.

1996 leakage

4. In July 1996, Mrs Tsoi discovered that water again leaked on the ceiling of her flat. The evidence showed that there were four areas of leakage :

(1)	In Bedroom No.1, there were two areas of leakage : Leakage on the wall near the window and on the wall next to the closet. This is an area immediately below the area of the wash basin constructed on Flat 27A.
(2)	There was leakage on the ceiling of the corridor.
(3)	Bedroom No.3 : leakage also occurred on the ceiling of the study.

Serious leakage in Bedroom No.1

5. The leakage was extremely serious in Bedroom No.1. Water was dripping from the wall next to the closet in great volume. Eventually channels had to be opened up on the wall to direct the water to plastic bottles affixed to the wall to collect the water. Two bottles of water a day were collected. Furthermore because the light switches were in the vicinity of the dripping water, they had to be removed and installed at a lower part of the wall. Water staining was measured at 0.3m x 0.3m on the wall. According to Mr Cullen, a chartered surveyor instructed to carry out an inspection, this was seen as a severe defect.

6. The damp on the other side of Bedroom No.1 measured about 0.5m long x 0.25m out from the wall.

Leakage in corridor

7. The corridor of the flat was covered by wooden false ceiling. An inspection of the space above the ceiling in the corridor revealed extensive water staining across the whole width of the corridor and extending down the wall to Bedroom No.1. Stalactites of crystals were formed on the original hall ceiling.

8. In Bedroom No.3, the wetness was an extension from the ceiling leakage. The damp areas comprise of 1.0m along the corridor wall, 0.8m along Bedroom No.2 wall and 0.2m down from the ceiling.

9. The leakage from the ceiling was so severe that Mrs Tsoi's husband had to devise a make shift water collection system by hammering in some nails and inserted dry cloth or sponges within the area surrounded by the nails to soak up the water. Plastic buckets were also used to hang on the ceiling to collect the dripping water.

Mrs Tsoi's complaint

10. Mrs Tsoi again lodged a complaint when the problem occurred again in 1996, and with the assistance of the management office of the estate, visits were made to Mr Chan's flat.

Mr Chan's complaint

11. Mr Chan also complained that there was leakage problem in his own flat in the wall next to the toilet. He suspected the leakage was from the 28th floor or from the outer wall. His own flat was also covered with false ceiling. The false ceiling in the corridor which he used as storage, was all wet and dampness were shown on the wall outside the toilet. Water accumulated in the wall paper and he had to tear open the wall paper to release the water. He also said that the leakage became serious after a heavy rain.

12. While Mr Chan was initially agreeable to find out the cause of the leakage, eventually he adopted a non-cooperative attitude. This is shown by the series of letters written by the management office to him, copies of which were sent to Mrs Tsoi, in which the management office stated that it was unable to secure Mr Chan's permission into the flat to carry out testing on the outer wall of the building. In the correspondence, the management office pointed out to Mr Chan that he had, in breach of the Deed of Mutual Covenant ("DMC") of the building, constructed illegal additions to his flat by installing the new toilet and wash basin.

13. Mr Chan's greviance was that the management office was not addressing his own leakage problem. Eventually Mr Chan had to seek the help of a district councilor to intervene in the matter. Although Mr Chan in his evidence stated that it was later agreed that the developer of the estate would carry out the repair to the outer wall and he and Mrs Tsoi agreed to treat the matter as closed, this is not something that was put to Mrs Tsoi in cross-examination.

New owner remedied the problem

14. The problem of the leakage continued from July 1996 until March 1998 when the 2nd defendants, who became the new owner moved into Flat 27A. The building contractor for the 2nd defendants had inspected the leakage in Mrs Tsoi's flat. Mrs Tsoi was told by him that the new owner would change the piping in Flat 27A. After the renovation work was completed on Flat 27A, Mrs Tsoi did not experience further leakage problem in her flat.

Expertise of Mr Cullen

15. In November 1997, Mr Cullen had carried out an examination of the leakage problem and prepared a report in January 1998. Mr Cullen is a chartered surveyor, and not an engineer. It was challenged that he was not a suitable person to give opinions on the cause of leakage in Mrs Tsoi's flat.

16. Mr Cullen explained that the surveyors in England had to carry out general building inspection, including the pumping system. He received academic training in this field. Furthermore in his practice in Hong Kong in the past five years, he had acted as an arbitrator on leakage problems and he also had prepared 12 reports on water egress and given evidence on water leakage in one or two cases.

17. While Mr Cullen's main practice is on valuation of property and estate management, I am of the view that by reason of his training and his actual experience, he was expert in this field.

Cause of leakage in the plaintiffs' flat

18. Mr Cullen did not carry out any dye test or pressure test. He agreed that given time and money, these tests could ascertain the real cause of the leakage. But in my view, the absence of such test are not an indication of the unreliability of Mr Cullen's conclusion. His view was that the leakage in Mrs Tsoi's flat was caused by the leaking problems in Mr Chan's flat. He admitted that his conclusion was reached by deduction. However, I accept that there was factual basis from which the conclusion could be reached. The leaking problem in Mrs Tsoi's flat could not be caused by problems on the external wall of Mr Chan's flat because many of the areas of leakage were in the centre part of Mrs Tsoi's flat and not on the wall. According to Mr Chan, Mrs Tsoi stated that the leakage became more serious after a heavy rain but he admitted that Mrs Tsoi also stated that the leakage also occurred in her flat on other days as well.

19. Mr Cullen found that while there may be leakage on the wall, the majority of the problem was caused by the leakage in the piping system in Mr Chan's flat. The most obvious indication is the illegally constructed wash basin and toilet. These equipments consist of two conduits of water : first, the water supply and second, the drainage system, both of which required connection to the existing water supply and drainage system in Mr Chan's flat. The laboratory test of the water collected in Mrs Tsoi's flat revealed that they were fresh water. Mr Cullen found that the new toilet soil pipe joint was found leaking. The new wash basin supply pipe was found by Mr Cullen to be disconnected. It was actually cut off with a stop cork being inserted in the opening. He also found evidence of leakage from the stained floor tiles beneath the area of the disconnected supply.

20. The photograph of the original toilet in Mr Chan's flat revealed that there was a boxed area behind the toilet seat. The same feature was not shown in the toilet in Mrs Tsoi's flat. This covered area covered the pipes and according to Mr Cullen, he found that the concrete inside the boxed area was wet. The original toilet in Mr Chan's flat had been extensively modified with new pipes, new tiling and shower in place of the bath. He found that there was water leakage from the water heater and the tiles were stained.

Cause of leakage of Mr Chan's flat

21. Mr Cullen found that there were severe water stains on the ceiling of Mr Chan's flat down the corridor wall to the bathroom. He was of the view that such water is clearly from the 28th floor floor-slab in which the 28th floor flat water supply pipes are embedded or from the 28th floor flat itself directly above Mr Chan's flat.

Plaintiffs proved case

22. The burden of proof is clearly on the plaintiffs to show that the source of water came from Mr Chan's flat. As rightly pointed out by Leong JA in 張秀玲及吳炳漢對鄭禮莊(CACV268/98), there is no presumption that the source of leakage would necessarily come from the flat above. In the present case, the most severe part of the leakage problem in Bedroom No.1 was immediately below the newly constructed wash basin in Mr Chan's flat. The walls when opened up revealed PVC pipes for electric cables. Mr Cullen stated that the pipes were the natural conduits for the water coming from the 27th floor.

23. In my view, from the evidence adduced in this case, the conclusion that one may reach is that the source of water came from Mr Chan's flat. He had in breach of the DMC constructed the additional toilet and wash basin. Mr Chan had never explained why he would disconnect the water supply to the wash basin. Clearly it was disconnected for some reason. The obvious reason was due to the leakage problem. This is not a case where nothing untoward had happened before Mr Chan and Mrs Tsoi moved into their respective flats, and then suddenly Mrs Tsoi found that there was leakage in her flat. In this case, Mr Chan carried out extensive renovations to his existing bathroom and installed additional sanitary equipments in another room. These new additions obviously affected the existing water supply and drainage system in his flat.

24. Considering the areas affected in Mrs Tsoi's flat, the inevitable conclusion points to Mr Chan's flat as the source of water. As to the dampness in Mr Chan's flat, one can safely discard the problem as the major contributing factor to the severe leakage problems in Mrs Tsoi's flat.

Special damages

25. On 13 January 2000, Mr Cullen obtained a quotation in the sum of $55,380 for the renovation to Flat 26A. The work covers the areas affected by the leakage in the various rooms. This includes applying new wall paper to the ceiling and walls affected by the leakage and also installing new carpet. This also includes work relating to the door and frame and the full height cupboard in Bedroom No.1 which were seriously damaged by the leakage. Repair to the wall is also required. No challenge was made to the individual items of this quotation.

26. After the leakage stopped in March 1998, Mrs Tsoi simply covered the affected areas with a new paint or wall paper. The reason why she did not carry out the substantial renovation was because of the lack of money. Although she had received compensation from the 2nd defendants, it was not sufficient to carry out the renovation work. In my view, the plaintiffs are entitled to recover from the defendants the costs of making good the damaged areas as a result of the water leakage.

Damages for inconvenience

27. This is clearly a recoverable item : Lo Yu Chu v. Kam Fu Lai Development Co. Ltd [1994] 3 HKC 18 and John So & Ano. v. Lau Hon Man, (Civ. App. No.110 of 1993) in which $10,000 for water leakage was awarded for the period of about 1 1/2 months. In Chan Fei Lung v. Mansion Products Ltd & Ors. [1990] 1 HKC 504, $25,000 was awarded as damages for nuisance for a period of two months.

28. In this case, the plaintiffs and their family obviously suffered great inconvenience by the water leakage. They moved into a newly built flat and shortly thereafter, suffered leakage problems. Mrs Tsoi, who I find to be a truthful witness, described how she had to replace the wet cloth and buckets of water. She accounted how her husband, who had to work on shift, lost his temper when she had to ask him to help her with the work. Bedroom No.1 was occupied by three of the daughters, because of the leakage problem, they could not even use the switch of the air-conditioner. One could well imagine the unpleasantness and inconvenience of living in a small flat with water dripping from the ceiling and wetting the carpets. The family was unable to use the closet in Bedroom No.1. Mrs Tsoi was so embarrassed by the conditions in her flat that she did not even invite guests to her home when two of her daughters got married. In my view, Mr Chan had taken an unreasonable attitude in this case. Whilst there may well be problems affecting his own flat he stubbornly refused to recognize the source of Mrs Tsoi's problem in fact came from his own flat. His unreasonable behaviour prevented an early solution to the problem and for nearly two years the plaintiffs had to endure the leakage.

29. In my view, an appropriate award under this head is $80,000. Accordingly, the plaintiffs are entitled to the damages under these heads which I will round up to $130,000.

Settlement with the 2nd defendants

30. The plaintiffs withdrew their claim against the 2nd defendants. The correspondence revealed that on 22 August 1998, the 2nd defendants' solicitors sent a cheque of $75,000 which was described as the sum for damages and legal cost in full and final settlement of the action against the 2nd defendants. Initially the 1st defendant argued that the settlement precluded the plaintiffs from pursuing this claim against him. This argument was not pursued upon when Mr Wong, Counsel for the 1st defendant, accepted that by reason of sections 5 and 7 of the Civil Liability (Contribution) Ordinance, Cap.377, the plaintiffs are entitled to continue the claim against the 1st defendant. This must be correct.

31. However, an issue arises as to whether the settlement should be taken into account on the damages that the plaintiffs recover against the 1st defendant.

32. Foskett on The Law and Practice of Compromise (4th Ed.) at page 99 stated that :

"Where a plaintiff has concurrent claims against a number of parties, he must give credit for sums received pursuant to settlements with certain of those parties if he pursues to judgment another party (or other parties) in respect of those concurrent claims."

33. As the plaintiffs' claim against the defendants is based on the same facts and same cause of action, their settlement with the 2nd defendants must be taken into account when awarding damage against Mr Chan. The next question is how the $75,000, which was expressed to be for damages and legal costs, should be apportioned. Foskett suggested that the onus on the claimant to put forward material in support of the apportionment for which he contends (page 104). In this case, I can safely apportion $50,000 to be damage and $25,000 as costs referrable to that of the 2nd defendants.

34. The $50,000 is to be deducted from the sum of $130,000, leaving a balance of $80,000. There shall be judgment to the plaintiffs on this sum.

Interests

35. Interest on $80,000 at judgment rate will be awarded from the date of judgment until payment.

Costs

36. The plaintiffs succeeded in their claim and should be entitled to the costs of this action. Although Mr Cheung, Counsel for the plaintiffs, submitted that a party and party basis is not sufficient and asked for a higher basis of taxation, I will order taxation on the party and party basis. As the plaintiffs recover a sum within the District Court jurisdiction, I will order costs nisi on the District Court scale with certificate for counsel. There shall be no further deduction of costs because the $25,000 was costs referable to the 2nd defendants.