SHUM CHI YUNG AND ANOTHER v. LAM CHUNG KWONG AND ANOTHER

DCCJ 697/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 697 OF 2005

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JUDGMENT

1.  The Plaintiffs claim against the Defendants for damages suffered due to the leakages that escaped from the Defendants' residential property at Flat 13, 35^th Floor, Block A, Po Ming Court, 8 Tong Ming Street, Tseung Kwan O, New Territories, Hong Kong (“Flat 3513”) to the Plaintiffs' residential property at Flat 13, 34^th Floor, Block A, Po Ming Court, 8 Tong Ming Street, Tseung Kwan O, New Territories, Hong Kong (“Flat 3413”).

2.  The Plaintiffs are the registered joint owners of Flat 3413.  The Defendants are the registered joint owners of Flat 3513.  The Plaintiffs claimed that the Defendants had wrongfully and/or negligently caused and/or permitted water to escape from Flat 3514 to Flat 3413 causing serious damage to the ceiling and sidewalls of the two bedrooms at Flat 3413 and causing damage to the furniture in the flat.  In the alternative, the Plaintiffs claimed (a) the Defendants had failed to construct or install the water pipes or drainage system in Flat 3513 as to ensure that the water would not escape therefrom; and (b) the Defendants had failed to ensure by inspection, maintenance or repair, that water could not escape from the said water pipes or drainage system to Flat 3413.  The Plaintiffs further claimed in the alternative that the Defendants failed to ensure that water would not escape from the said water pipes or drainage system, and thereby maintained a public nuisance, which caused the water escape from Flat 3513 to Flat 3413.

3.  The Plaintiffs assessed the damages to Flat 3413 in the sum of $87,300 representing the costs necessary to repair the damaged ceiling and walls, to replace the furniture, the partition and renovation works.  The Plaintiffs further claimed that in order to allow the contractor to conduct the renovation works, which would take about 1 month to complete, the Plaintiffs would have to rent suitable accommodations the market rent of which would cost $4,500.

4.  The Defendants denied there was any water escaping from Flat 3513 to Flat 3413, which in turn damaged the furniture and fittings at the Plaintiffs' premises at Flat 3413. 

5.  The issues to be decided are:

(a)	whether the Plaintiffs have proved on a balance of probabilities the source of water leakage as pleaded in the Re-amended Statement of Claim;
(b)	Whether the Defendants are liable for loss or damage occurred prior to the date on which the Defendants were first notified of the water leakage;
(c)	What loss and damage did the Plaintiffs suffered?

The Plaintiffs' Case

6.  It was the evidence of Mr. Shum that he and his wife are the registered owners of Flat 3413 at Po Ming Court, Tseung Kwan O.  Po Ming Court is a home ownership scheme project and a housing development of the Hong Kong Housing Authority (“the said estate”).  The Plaintiffs purchased the property and moved into Flat 3413 of the said estate in or about 1998.  It is not disputed that Flat 3413 is directly underneath Flat 3513.

7.  On or about 31 August 2004 Mr. Shum discovered there was water seepage on the ceiling causing damage to the walls and ceiling of the two bedrooms in Flat 3413.  Mr. Shum immediately reported this to the Manager of Po Ming Court, Synergis Management Services Limited (“the Manager”).  On or about 17 December 2004 the water leakage became so serious and the damages to his property was so extensive that he decided to lodge a complaint at a management meeting of the Incorporated Owners of Po Ming Court.  The Chairman of the Incorporated Owners (“IO”) Mr. Chow Kin Yiu promised to follow up the matter. 

8.  On or about 20 December 2004, Mr. Chow and one Mr. Keung Kin Wah and one Mr. Yiu Ming and Mr. Sam Chan Chi Sing of the Manager visited his premises Flat 3413.  On 21 December 2004 Mr. Chow the Chairman of the IO wrote a letter to the Defendants informing them of the suspected water seepage from Flat 3513 to Flat 3413 and requested them to repair the water seepage as soon as possible. 

9.  On 3 January 2005 Mr. Chan, the estate manger of the Manager visited Flat 3513 (the Defendants' premises) together with a Mr. Kam Yiu Kin who was the maintenance contractor of the Manager to conduct a colour test at Flat 3513.  It is the evidence of Mr. Chan and Mr. Kam that the colour test confirmed water had leaked from the bathroom of 3513 to Flat 3413.  Mr. Kam who is the proprietor of Yau Shing Engineering Company Limited, the contactor of the Manager, prepared a report on the test conducted (Exh. page 130 of the bundle).        

10.  As a result of the test on 3 January 2005, a meeting was arranged by Mr. Chow between the Plaintiffs and the Defendants.  At the meeting, the Plaintiffs demanded from the two Defendants compensation for the damages caused to Flat 3413.  It was the evidence of Mr. Shum that the 2^nd named Defendant agreed to fix the water seepage within 10 days promising that renovation work on Flat 3413 would be completed before the Lunar New Year. 

11.  Mr. Chan Chi Sing, the estate manager of the Manager, told the Court that he had visited Flat 3413 on 7 January 2005 and found there was still water seepage at Flat 3413.  He then wrote a letter to the Defendants requesting them to rectify the water seepage within 1 week.  He further telephoned the 1^st named Defendant about the matter and was told the Defendant would conduct the repair as soon as possible.

12.  On 10 January 2005 Mr. Chan received a letter from the maintenance surveyor of the Hong Kong Housing Authority which said as follows:-

“	Dear Sirs,
	Thank you for your letter dated 30 December 2004.
	My colleague conducted a site inspection with your staff, Mr. Keong on 6 January 2005 and ceiling seepage was observed at the ceiling of captioned premises.  We believe on the basis of our investigation that the seepage originated from the alteration (sic) work of flat 3513.  Therefore, it is your responsibility to carry out follow-up action.” (see page 74 of the bundle)

13.  On 11 January 2005, Mr. Chan checked on Flat 3413 again.  He found no improvement to the water leakage at the ceiling of Flat 3413.  The 1^st named Plaintiff informed Mr. Chan that he would take legal action against the Defendants.

14.  On 15 January 2005 Mr. Chan received a call from the 2^nd named Defendant who told him the Defendants would like another test to be conducted by the Housing Department.  Mr. Chan therefore requested the Housing Department to take another test on 17 January 2005.  On the same day, the Plaintiffs told Mr. Chan that he had retained a sub-contractor YC Engineering Works and it had assessed the work to repair the damage would take about 1 month and the costs for the repair would be $87,300.  Meanwhile the Housing Department confirmed they would conduct another colour test at Flat 3513 on 20 January 2005 at 11.00 a.m.  On the evening of the same day, Mr. Or (the District Counselor), Mr. Chow, the 2 Plaintiffs and the 2 Defendants together with the Defendants' friend Mr. Tai and Mr. Chan had a meeting at the conference room of the Incorporated Owners Association.  At the meeting, the Defendants confirmed they were willing to make compensation to the Plaintiffs in respect of the water seepages.  They requested a further colour test to be conducted on 20 January 2005 by the Housing Department in order to locate the area of water leakage. 

15.  On 20 January 2005, when the Defendants were told the Housing Department would be conducting the same colour test as before and the test was intended for public hygiene purposes to ascertain if the pipes and the plumbing at the said building were causing a public nuisance rather than to locate the cause and area of the leakage.  The 1^st named Defendant then requested the test to be conducted by a government approved registered contractor at the Defendants' own costs to find out the cause and location of water seepage.  On the same occasion, the Plaintiffs gave the quotation of YC Engineering Works to the Defendants. 

16.  Later that day, the Defendants informed Mr. Chow the test by an approved contractor would not be necessary, they would repair the bathroom in any event.  On about 4 February 2005, the 2^nd Defendant informed Mr. Chan the work fixing the water leakage had completed.

17.  On 28 January 2005, Mr. Chan wrote to the two Defendants thanking them for conducting the repair work and informed them that the water seepage at Flat 3413 had dried up when the staff of Synergis inspected the premises on 27 January 2005 (see page 79 of the bundle). 

The Colour Test Reports

18.  Two colour test reports were produced.  The first one dated 20 September 2005 was addressed to Mr. Chan of the Manager (Synergis Company Limited) on the two colour tests conducted by the Food and Environmental Hygiene Department (“FEHD”) on 16 November 2004 at the bathroom and the kitchen area of Flat 3513, and second test was conducted on 20 December 2004 at the kitchen drains area.  The two colour tests conducted by the FEHD were described in paragraph 2 of the report which stated that colour powder mixed with water was poured down the drainage outlets at the kitchen and the bathroom at Flat 3513 followed by a large quantity of fresh water being pouring down the same drainage outlets.  This was followed by a check on whether the colour powder could be located at the water outlet and/or drainage area two weeks later.  Samples of paint at the ceiling area of Flat 3413 would then be collected and submitted to the government lab for analysis.  The conclusion reached by the FEHD was that the Department was not able to conclude the cause of the water seepage was due to damage in the water supply and drainage system at Flat 3513. 

19.  The 2^nd report was written by Mr. Kam of Yau Shing Engineering and Metal Company Limited (“Yau Shing”) on 23 September 2005.  Mr. Kam gave evidence in Court; he admitted that he had conducted the colour test at Flat 3513 on 3 January 2005.  His method of testing was to seal off the drainage area of the shower unit with plaster, then released 1½ inch to 2 inches of water into the shower unit, followed by pouring a bag of fluorescent colour dye into the shower unit which would be mixed with the water in the shower unit.  The fluorescent colour water would be retained in the shower unit for about 1 hour.  Mr. Kam claimed he did not disclosed to anyone the colour of the fluorescent dye powder he had chosen for the test before the test.  One hour later, he went down with the Defendants to Flat 3413 and inspected the ceiling at the master bedroom.  It is Mr. Kam's evidence that he clearly saw fluorescent yellow stains on the ceiling at the master bedroom of Flat 3413.  He claimed that the Defendant Mr. Lam also saw the fluorescent yellow stains at the ceiling of the master bedroom of Flat 3413.  That Mr. Lam agreed at the time that he would conduct the repair at his own premises as soon as possible (see page 130 of the bundle). 

20.  It is not disputed that the Hong Kong Housing Authority surveyor had written independently to the Defendants on 28 January 2005 informing the Defendants that the Housing Authority staff had visited Flat 3413 and inspected the water seepage condition on the ceiling of Flat 3413.  The letter notified the Defendants the water seepage could have originated from Flat 3513.  The letter further informed the Defendants that they should investigate immediately the cause of the water seepage and take up appropriate measures to stop the leakage.

21.  Mr. Leung Lam, a Senior Health Inspector of the FEHD, gave evidence on behalf of the Defendants.  He told the Court, when the Department received a complaint of water leakage, the Department's own staff would visit the complainant's flat to verify the complaint first.  They would then conduct a colour test at the unit where the leakage was suspected to have started.  He admitted that the colour dye used at the Defendants' premises on the 2 occasions on 16 November and 20 December 2004 was ordinary colour powder.  The Department may consider using fluorescent colour dye in future because the fluorescent colour dye could be visible by means of a special torch light in dark corners.  Whereas common dye could be visible under certain circumstances only.  It is Mr. Lam's evidence that the Department's colour test was not meant as a floor slab test.  The purpose for the Department's the test was to find if the drains and pipes were damaged.  If the drains and pipes of a certain unit of the building were found to be damaged the Department would issue a nuisance notice to the unit requesting the owner to repair the damaged drains.  Mr. Lam believed it is possible when the bathtub of a unit was replaced by a shower unit and if water-proofing was not well done, leakages could happen at the floor slab and water could filter down to the ceiling of a lower floor.  However, it is not the Department's policy to conduct tests on the floor slab even though such leakages are common.

22.  Mr. Lam further clarified that although in his report he had said that the leakages were not from the drainage pipes it does not mean there were no leakages at the ceiling of Flat 3413. 

23.  The Defendants' 2^nd witness, Mr. Wong Ying Lung, was a construction worker specializing in cement and plaster works.  Mr. Wong admitted to have dug up the shower unit at the Defendants' premises to check for leakage at the end of January 2005.  He claimed he found the base of the shower unit and the concrete area to be dry.  He then re-cemented the shower unit and replaced the tiles in the shower unit for the Defendants.

Findings

24.  Based on the evidence adduced at the hearing, there is no dispute from the Defendants that the Plaintiffs' Flat 3413 had water seepage problem between December 2004 and the end of January 2005. 

25.  The Defendants denied that the water seepage had come from their unit (Flat 3513).  The Defendants put the Plaintiffs to straight proof. 

26.  The Defendants claimed the colour tests conducted by the FEHD do not assisted the Plaintiffs to discharge the burden of proof because those two tests were inconclusive and failed to show water leakage at Flat 3413 had come from Flat 3513.  The Defendants further contested the results conducted by Yau Shing and the conclusion reached in the report of 23 September 2005.

27.  Miss Gwilt, Counsel for the Defendants, criticized the Yau Shing report for not bearing a signature or a company chop.  Mr. Kam, the writer of that report was cross-examined in Court.  He admitted he and his company are not experts in the field of water leakage investigations.  Mr. Kam also admitted that he had never given expert evidence in Court before.  Miss Gwilt therefore submitted to the Court that Mr. Kam's evidence and the Yau Shing report should not be accepted. 

28.  The Defendants relied on the two tests results reported by FEHD (page 129 and 139 of the bundle) and denied liability.  It is further Miss Gwilt's submission that the photographs exhibited showed serious seepages occurring near the left external wall.  There is, therefore, a possibility that the water seepage had come from the external wall rather than from the Defendants' bathroom on the upper floor.  Miss Gwilt further attributed the water leakage on the ceiling of the Plaintiffs' premises could have been caused by cracks in the floor slab and the external walls due to possible land subsidence at the Tseung Kwan O area.

29.  I take into my consideration the evidence of all the witnesses' at the trial.  In particular, factual evidence from Mr. Kam who conducted the fluorescent colour dye test at the Defendants' premises on 3 January 2005.  I accept Mr. Kam as a credible witness of fact.  His evidence is not regarded as expert evidence and he did not hold himself out as one.  His evidence was supported by Mr. Chan and Mr. Chow who were present during the test on 3 January 2005.  It is clear that fluorescent yellow dye was found 1 hour after the test was conducted at the Defendants' premises to have appeared at the Plaintiffs' ceiling where the cracks appeared and seepages of yellow dye water was found.  It was Mr. Kam's evidence that he had used a torch and found the fluorescent colour dye appearing at the Plaintiffs' premises.  He had also used a tissue paper to wipe the water seeping from the ceiling, he showed the colour stained water appeared on the tissue paper to the Defendant Mr. Lam.  It was Mr. Kam's evidence that Mr. Lam admitted at the time he too saw the colour dye water appearing at the ceiling and the colour dye tissue paper shown to him demonstrated there was a serious water seepage problem from Flat 3513. 

30.  Mr. Lam agreed that water leakage could have come from the water supply pipes or the salt water flushing system at the toilet, it could also have come from the external wall or the floor slab.  He also admitted that it is possible if the bathtub was replaced at the units of the said estate and if damp proofing was not well sealed, leakages could take place from the floor slab of an upper floor to the ceiling of a lower floor.  He admitted these leakages are very common, however, the FEHD would only conduct the colour dye test to find out if there were damages to the drainage and sewage system of a unit was causing a nuisance to a neighbour.

31.  The FEHD report was positive only in one aspect: that the drainage system did not cause the water leakages from the Defendants' flat to the Plaintiffs' flat.  The report did not say there was no leakage at all. 

32.  All the witnesses who gave evidence on behalf of the Plaintiffs : Mr. Kam, Mr. Chow and Mr. Chan, were independent witnesses. Their evidence supported Mr. Shum's evidence that the water leakage was caused by the replacement of the bathtub at the Defendants' bathroom by a shower unit using tiles and cement on the shower floor.  Mr. Shum's own unit had the same problem but he rectified the condition by conducting remedial work himself.  All the evidence pointed to the fact that the water leakage was caused by poor waterproofing of the shower unit at the Defendants' premises.  The replaced shower unit had aged and cracks had appeared, followed by water leaking through the cracks in the floor of the shower unit at the Defendants' premises into the Plaintiffs' ceiling. 

33.  The evidence of Mr. Chan Chi Sing of the Manager supported Mr. Kam's evidence on the findings of the colour dye test at Flat 3513 on 3 January 2005.  Mr. Kam had pointed out a crack at the shower unit floor to the Defendants at Flat 3513 and told him that could be the cause of the leakage into Flat 3413.  It was Mr. Chan's evidence that he saw the colour stains on the ceiling and walls of Flat 3413 an hour after the test was conducted at the Defendants' bathroom at Flat 3513.  He witnessed Mr. Kam using a piece of toilet paper to wipe the water seeping from the ceiling and found the water stain to be of the same colour as the fluorescent yellow dye water.  It was shown to Mr. Lam; Mr. Lam then asked Mr. Kam for advice to repair the leak.  Mr. Chan also testified that he found fluorescent colour dye stains appearing at the top of the wardrobe of the Plaintiffs' flat similar to those appearing in the photograph at page 45 of the bundle.  Mr. Chan claimed he had seen many units in the said estate with similar problems of leakage in 2000 and 2001 because there had been alterations done in the bathrooms of these units.  He had no doubt the leakage was caused by the alteration work done to replace the bathtubs.  

34.  I find Mr. Chan's evidence to be strong evidence in support of the Plaintiffs' case against the Defendants.  The test conducted by Mr. Kam is clear evidence that the leakage was caused by water running down from the Defendants' shower unit into the Plaintiffs' unit.  There was positive evidence from the witnesses that there was a crack on the floor of the Defendants' shower unit before the Defendants had the floor of his shower unit completely replaced in late January 2005.  On a balance of probabilities, I am satisfied that that was the cause of the leakage of water from the Defendants' bathroom to the Plaintiffs' bedroom ceiling.  The leakages had caused irreparable damage to the Plaintiffs' ceiling, walls, wardrobe and furniture.

Quantum of Damages

35.  Miss Gwilt, Counsel for the Defendants submitted that the burden is on the Defendants to prove the quantum of damages.  She submitted that since the damages appeared in a corner of the master bedroom, it is therefore not necessary for the wallpaper and ceiling to be completely redone, the wardrobe and the wooden cover for the curtains to be replaced.  Miss Gwilt submitted that only the following items should be paid:-

(1)	wallpaper and ceiling paper	$4,500
(2)	wardrobe	$4,800
(3)	curtain cover	$1,300
(4)	Floor - 5 sq.ft at $60/sq.ft	$600
(5)	Rental	$4,500
	Total	$15,700

35.  According to the Plaintiffs' witness, the contractor Mr. Ha Shek Chuen, the furniture at the Plaintiff's unit were all custom made and built-in, they are connected and fixed together and cannot be separated.  The partition walls, the furniture and beds were all tailor-made at the premises because of the particular size of the unit.  Consequently, because the wardrobe partitioning the two bedrooms has to be replaced due to damage done by water seepages, when the partition wall together with the wardrobe are demolished, the beds which are fixed to the partition walls have to be replaced too.  The price quoted by Mr. Ha for the replacement of the damaged bedrooms and furniture inclusive of labour and materials and removal of debris was $87,300.

36.  The Plaintiffs also claimed that the cost of the renovation work would take approximately 1 month or 30 workings days and the Plaintiffs and his family members would have to move out of the premises for a period of 1 month, therefore they claimed the cost of 1 month rental pending completion of the renovation work. 

37.  As there was no evidence on quantum adduced by the Defendants, there is no other available evidence on the costs of repairing the Plaintiffs' premises except Mr. Ha's quotation.  I am satisfied there are particular requirements for the Plaintiffs' unit to install built-in furniture due to the particular size of the Plaintiffs unit.  This would result in the need for an almost total replacement of the wood works at the unit.  I am satisfied that it would cost $87,300 to repair the damage to the Plaintiffs' premises to include the replacement of the wood works including the floorboards.  However, as the furniture and partitions at the Plaintiffs' unit were not new at the time when the serious damage by water leakages appeared in late October up to December 2004, I would assess the damage to the Plaintiffs' furniture and fittings at a depreciated value.  Therefore, I allow 80% of the cost of repair of $87,300 which comes to $69,840.  I also allow the market rental of $4,500 to the Plaintiffs for temporary accommodation during the renovation work on Flat 3413.  The total damages to be awarded is $74,340. 

38.  Costs nisi – costs to the Plaintiffs to be taxed if not agreed.