hksurveyors

法庭案例  (節錄部份法庭判案書內部份內容以供參考)   

案例 (1)  土地審裁處  法庭案件編號 LDBM 18/2014  (請按查閱全文)

申請人的專家證人: 香港公正行 (劉珊娜)  

法庭結果: 申請人勝訴。法庭發出強制維修命令、損害賠償命令及訟費命令。

節錄判案書部份內容以供參考:

-申請人在2013年12月14日委託了香港公正行有限公司作調查,以找出12G單位內滲漏的源頭, 調查由專家證人劉珊娜女士("劉女士")負責。(第12段)

-由於答辯人拒絕讓劉女士進入13G單位作調查,劉女士在2013年12月14日只到了12G單位,以目視勘察法、徵狀分析法、導電感應檢測法、水樣本分析法、紫外線鑑定法、紅外線掃描法以及微波掃描法進行調查。(第13段)

-在考慮過雙方的證供後,本席認為申請人一方已成功舉證,12G單位的滲漏情況,源自13G單位的主廁及客廁地台。(第24段)

-答辯人曾提出,滲漏可能是從外牆破損引起,唯本席接納劉女士的證供,她已就此一可能性作出調查,亦撇除了此一可能性。本席認為答辯人所指外牆滲漏情況並不存在。(第31段)

-本席認同,必須頒下強制令,強制答辯人就13G單位客廁地台作維修,以解決12G單位的滲水情況。亦應在維修後聘請專業人員驗證妥善完成維修,以確保滲漏問題確實得到解決。(第34段)

-申請人要求答辯人就滲水所造成的不便及不適, 作出50,000至80,000元的賠償。(第35段)

-本席認為以本案的情況, 就不便及不適方面的賠償金額, 應為50,000元較為合理。(第39段)

-申請人又要求答辯人賠償,因滲漏造成12G單位破損的維修費。本席在看過劉女士在報告內所開列項目及數額,接納為合理的維修及花費。(第40段)

-在訟費應視乎訴訟結果而定的大前提下,本席看不到任何特殊環境因素,為何答辯人不應承擔申請人在本案中的訟費。(第41段)

案例 (2)  區域法院  法庭案件編號 DCCJ 1230/2015  (請按查閱全文)

申請人的專家證人: 香港公正行 (Lau Shan La)

答辯人的專家證人: 香港驗樓 (Hau Tung Chow)

法庭結果: 申請人勝訴。法庭發出強制維修命令、損害賠償命令及訟費命令。

節錄判案書部份內容以供參考:

-The plaintiff (P) claims against the defendant (D) for causing water seepage to P's property situated at Workshop 2 on 3rd Floor, Wing Lee Industrial Building, Numbers 54, 56 and 58 of Tong Mi Road, Kowloon, Hong Kong ("Workshop 302). (Clause 1)

-The main battle of this case is on expert evidence. On 10 September 2015, the court has granted leave to parties to adduce expert evidence on liability and quantum. P has applied Miss Lau Shan-la and D appointed Mr Hau Tung-chow as experts of the parties. There were six joint inspections by the expert and three joint expert reports produced, dated 26 November 2015, 5 July 2016 and 7 November 2016 respectively. The experts had carried out the following tests: 

(i) Visual inspection;

(ii) Infrared scanning;

(iii) Electrical conductivity sensing;

(iv) Microwave scanning;

(v) Florescent dye test (rhodamine B);

(vi) Florescent dye test (using yellowish dye);

(vii) Water sample analysis. (Clause 10)

-The expert's conclusions are very different. P's expert opined that the water seepage affecting Workshop 302 ceiling was rainwater from flat roof of workshops 401 and 402 which ran on a gutter along the flat roof of these two workshops before going into downpipe located at Workshop 402 flat roof. The waterproofing membrane in the floor slab and perimeter areas of Workshop 402 flat roof was damaged or defective, causing water seepage into Workshop 302. She reached her conclusion based on the findings that there was no corresponding water seepage into the adjoining workshop 301 which is also owned by P. (Clause 12)

-Both experts came to court to give evidence and were cross-examined. (Clause 15)

-Another important issue is whether workshop 301 has suffered from any water seepage. According to P who also owns workshop 301, it has not suffered from any water seepage. Experts inspected workshop 301 on 2 September 2016, and photos were taken and tests were done. Experts did not observe any sign of water seepage on the ceiling of workshop 301 and the microwave scanning test done at workshop 301 and 302 at different levels from the ceiling, namely 30 millimetres, 70 millimetres and 110 millimetres. The test results at all levels show that Workshop 302, has higher dampness at respective depths. Miss Lau concluded that water seeped vertically from Workshop 402 to Workshop 302. On the other hand, the dampness of workshop 301 did not exhibit such water seepage phenomenon. Its dampness was average and no point of seepage was seen. (Clause 17)

-If Mr Hau is correct, ie the waterproof membrane of workshop 401 was defective, the concrete layer between workshop 401 and 301 would not be less wet than the concrete layer above Workshop 302 or in between Workshop 402 and 302. There is no explanation as to why no signs of water seepage was observed at the ceiling of workshop 301. Therefore, the situation at workshop 301 in effect rebutes Mr Hau's proposed water path. (Clause 18)

-Once the source of water seepage has been found at D's Workshop 402, parties have no dispute that D should be held liable to P for negligence, nuisance, and breach of clause (s) of the Third Schedule of the DMC. (Clause 26)

-As parties have agreed special damages for repair at HK$12,000 when D is held liable, the only outstanding issue would be general damages. (Clause 27)

-I grant a mandatory injunction to order D to repair the waterproof membrane in the flat roof of Workshop 402 covering the peripheral walls and the floor to prevent water seepage from Workshop 402 to Workshop 302. (Clause 33)

-Costs should follow the event. I therefore make an order nisi that costs of the whole action be to P, to be taxed if not agreed on party and party basis, with certificate for counsel. (Clause 34)

案例 (3)  區域法院  法庭案件編號 DCCJ 3244/2015  (請按查閱全文)

申請人的專家證人: 香港公正行 (Lau Shan La)

答辯人的專家證人: 銀晉顧問 (Lo Kwok Kay)

法庭結果: 申請人勝訴。法庭發出強制維修命令、損害賠償命令及訟費命令。

節錄判案書部份內容以供參考:

-This is a water seepage case happened in a domestic building known as Block C, Hong Lam Court in Shatin. (Clause 1)

-Like many similar cases, parties have sought leave to adduce expert evidence on both issues of liability and quantum. Ps engaged Ms Lau Shan La who inspected P's Flat on 20 April and 9 May 2015, but without the opportunity to enter D's Flat. She eventually compiled her expert report on 15 June 2015. D engaged Mr Lo Kwok Kay who inspected both flats on 17 June 2016 and complied his expert report dated 28 June 2016. The experts also prepared a joint statement dated 22 September 2016 pursuant to O38 r38 of the Rules of the District Court. (Clause 9)

-Ms. Lau for P's opined that the cause of the water seepage at the Affected Area being the damaged waterproofing layer of D's balcony floor (including the surrounding wall) and the related dirty water drainages (including toilet bowl dirty water drainage, shower tray floor water drainage and balcony floor drain sewage drainage) of D's Flat. The water seepage extended from the kitchen ceiling and the balcony ceiling to the toilet ceiling of P's Flat. (Clause 10)

-On the contrary, Mr Lo for the D's, opined that the waterproofing layers of balcony floor slab and shower tray floor slab, all related drainage pipes (including waste water pipes) and water supply pipes of D's Flat did not suffer from any water seepage or leakage, and the source of P's water seepage was not from D's Flat. (Clause 11)

-D's expert has failed to indicate the exact location of the two checkpoints for taking the ECS readings for various tests. Compared with 20 checkpoints taken by P's expert, D's expert only took readings at two checkpoints. Besides, D's expert has not done the microwave scanning which P's expert has relied upon such test results. (Clause 26)

-In view of the above, I think it is fair to say the methodology of P's expert is more comprehensive than those of D's expert. The investigation by P's expert is in general more serious, solid and professional, whereas the D's expert appeared to be rather sloppy. Hence, the expert opinion of P shall be preferred. (Clause 27)

-As I prefer to the expert opinion of Ms Lau for the above reasons, I find that the water seepage at the Affected Area was caused by the damaged waterproof layer of D's balcony floor (including the surrounding wall) and the related dirty water drainages (including the toilet bowl dirty water drainage, shower tray dirty water drainage and balcony floor drain sewage drainage) of D's Flat. (Clause 32)

-In light of my above finding as to the source of water seepage, I find on balance of probability that D has neglected to take steps to remedy the sources of water seepage as identified by Ms Lau and permitted the water seepage, which no doubt is a nuisance, to continue. In the circumstances, D is liable to Ps for negligence and permitting the nuisance to continue. (Clause 38)

- I am inclined to prefer Ms Lau's opinion on quantum issue, as her view in this regard is generally more soild and with more supporting evidence than Mr Lo's. (Clause 44)

-In the circumstances, an award of HK$50,000 general damages is appropriate. (Clause 50)

-It is therefore neccessary to impose a mandatory injunction that D do carry out all neccessary repairs and/or remedy works of the waterproofing layer of D's balcony floor (including the surrounding wall) and the related dirty water drainages (including the toilet bowl dirty water drainage, shower tray dirty water drainage and balcony floor drain sewage drainage) of D's Flat and such order is made. (Clause 53) 

-Costs should follow the event. I therefore make an order nisi that costs of the whole action to be Ps (Clause 54)

案例 (4)  區域法院  法庭案件編號 DCCJ 4020/2012  (請按查閱全交)

申請人的專家證人: 香港公正行 (Lau Shan La)

答辯人的專家證人: 專業評量 (Stewart Wong)

法庭結果: 申請人勝訴。法庭發出強制維修命令、損害賠償命令及訟費命令。

節錄判案書部份內容以供參考:

-This is a water leakage case involving two flats one directly above the other in a multi-storey residential building situated at 233 Shau Kei Wan Road, Hong Kong ("the Building").

(Clause 1)

-The parties engaged water leakage experts to investigate and conduct tests. D's expert Mr Stewart Wong ("Wong") inspected the premises and conduct tests in March 2014, and on 13 and 25 June, 12, 13, 15 and 19 October 2014 (as recorded in his report dated 13 January 2015). P's expert Ms Lau Shan La ("Lau") conducted tests on 30 November 2014 and commissioned a report dated 8 January 2015. (Clause 36)

-Lau conducted the following tests in the bathroom in Room B of the 8/F Flat on 30 November 2014:

(i) Eosin yellowish ponding and flushing in basin and water closet; and

(ii) Spraying water at the walls. (Clause 43)

-After about an hour, she checked for water seepage with reference to the difference in moisture content before and after the tests at the ceiling of the Damaged Room in the 7/F Flat using the following methods:-

(1) Electrical conductivity sensing (導電感應法); and

(2) Infra-red scanning (紅外線掃描). (Clause 44)

-It is noted that Wong's report contained only 8 pages, attached with 44 pages of photographs without proper explanatory notes. This is contrasted with Lau's report of 428 pages containing details of observations, tests conducted, results and findings, analyses and explanations, attached with photographs with explanatory notes. (Clause 83) 

-I have no doubt about the expertise and qualification of Lau. She gave firm answers with full explanations based on objective test results recorded in her report during cross-examination. (Clause 85)

-Having considered Lau's detailed report in the light of the other available materials and evidence, and heard her evidence given at trial, I find her a professional and reliable expert witness. I accept her evidence. (Clause 86)

-In the circumstances, where there are conflicts in the evidence between Wong and Lau, I would prefer that of Lau. (Clause 87)

-On the above analysis and upon acceptance of the evidence of P's expert Lau, I come to the following findings on a balance of probabilities:- (Clause 88)

-I make a mandatory injunction order for D to rectify the water leakage problems as pleaded by P, within 42 days as agreed by the parties. (Clause 115)

-To conclude, I make the following order for P against D:- 

(1) An order that D do carry out works in the 8/F Flat to rectify the water leakage problems of the Damaged Room at its own cost within 42 days from today's date;

(2) Payment of damages at the total sum of $156,750;

(3) Payment of further damages at the rate of $2,460 per month from April 2016 until such time when D has complied with and carried out the order made in (1); and

(4) An order nisi that D shall pay the costs of P of the whole action, to be taxed if not agreed, with certificate for counsel. (Clause 117)

案例 (5)  區域法院  法庭案件編號 DCCJ 213/2017  (請按查閱全文)

申請人的專家證人: 香港公正行 (Lau Shan La)

答辯人的專家證人: 量築工程顧問樓 (Simon WS Cheung)

法庭結果: 申請人勝訴。法庭發出強制維修命令、損害賠償命令及訟費命令。

節錄判案書部份內容以供參考:

-This is a water seepage case. (Clause 1)

-The 1st, 2nd and 3rd plaintiffs ("Ps") are the joint registered owners of Shop No. J ("the Shop") situated on the ground floor of Wah Hoi Mansion, 254-289 Electric Road, North Point, Hong Kong ("the Building").  (Clause 2)

-Ms Lau Shan La ("Ms Lau /Ps' Expert') was apointed by Ps to look into the cause of the water Seepage in September 2016. (Clause 44)

-Ms Lau and her assistant had attended the Shop on 3 separate occasions, namely, 29 July 2016, 6 September 2016 and 20 September 2016, to conduct inspections and carry out investigations. (Clause 45)

-Following the inspections, Ms Lau prepared an expert report dated 9 November 2016 ("Ps' Expert Report'). This report was sanctioned by the court. (Clause 46)

-In Ps' Expert Report, Ms Lau formed the opinion that the Water Seepage in the ceiling of the Shop was caused by the damaged public pipes in the Building, in particular at the space between the ceiling of the Shop and the base of the public pipe basin (公共喉槽) in the first floor unit (1/F) situated immediately above the Shop. (Clause 47)

-D's expert, Mr. Simon WS Cheung ("Mr. Cheung / D's Expert") of 'Surveying and Construction Consulting Company', has prepared an expert report dated 3 November 2017 on behalf of D ("D's 1st Report). This report was obtained with leave of the court. (Clause 49)

-On 14 June 2018, the court gave leave for Ps' and D's experts to prepare a 'Joint Statement' of opinions or what is commonly known as a joint expert report. On 24 July 2018, the parties' experts conducted a joint inspection and without prejudice meerting at the Shop. (Clause 51)

-As a result, the parties' experts prepared a Joint Statement / Expert Report dated 23 August 2018 ("the Joint Report"). Pursuant to an order of the court, the Joint Report has been directed to stand as evidence-in-chief of the parties' respective experts' evidence at the trial. (Clause 52)

-Ps' Expert Report, D's 1st Report and D's 2nd Report were all appended to the Joint Report. (Clause 53)

-It is evident from the Joint Report that both the parties experts are unable to agree on whether the Water Seepage was a result of the lack of repairs and maintenance of Pipe A and/or Pipe B (as per Ps' case) as against the Alleged Unauthorized Acts and/or Other Unauthorised Acts committed by Ps ( as per D's case). (Clause 54)

-Regrettably, the following events which occurred during the preparation of his expert evidence/reports have led me to come to the conclusion that Mr. Cheung is not an impartial or independent expert witness and his evidence should not be accepted by the court. (Clause 64)

-In summary, based on the matters discussed above, I find Mr Cheung:

(a) was not an impartial or independent expert;

(b) was acting as an advocate on behalf of D;

(c) had prepared D's 2nd Report without leave of the court or consent from Ps;

(d) introduced D's 2nd Report by attaching the same to the Joint Report without authorization;

(e) referred to matters which were based on his own assumptions or speculations rather than on the evidence; and

(f) did not disclose to the court his dual roles as an expert and consultant/project manager for D. (Clause 79)

-While one or more of the above matters may only affect the weight of the evidence given by an expert, in my judgment, the combination of all the above factors could only lead to the inevitable conclusion that the opinions Mr Cheung gave was so bias and back of objectivity that I do not think it will be safe for the court to reply on any of them. I therefore find the expert opinion of Mr Cheung inadmissible in this case. (Clause 80)

-This will leave Ps' expert opinion as the only expert evidence/opinion for the court to consider and base its findings on in this case. (Clause 81)

-Based on the above discussed evidence and Ms Lau's expert opinion, I find the Water Seepage, which occurred at the ceiling in the Shop near to Pipes A & B, was a direct result of the serious wear and tear of Pipe B. I further find that this common pipe which had been in use for over 40 years since the Building was first completed in 1975, had never been properly repaired or maintained by D.  (Clause 83) 

-Following my findings that D should be held liable for the Water Seepage found at Ps' Premises, I now turn to consider the loss and damage allegedly suffered by Ps and the issue of damages in this case. (Clause 100)

-At the Pre-trial Review hearing in this case, Ps through their counsel have agreed to limit their claim to HK$3 million in this case and agreed to waive any exceeding amount in order submit this case to the jurisdiction of this court. (Clause 118)

-In the circumstances, I would enter judgment in favour of Ps in the sum of HK$3 million. (Clause 119)

-On top of the damages awarded, I further make an order that D to carry out immediate or effective remedial works to rectify and/or repair of the Water Seepage within 28 days from the date of this judgment. (Clause 121)

-Costs will follow event. I make an order nisi that D do pay the costs of the action on a party and party basis, such costs to be taxed if not agreed, with certificate for counsel. (Clause 122)

案例 (6)  區域法院  法庭案件編號 DCCJ 469/2013  (請按查閱全文)

申請人的專家證人: 劉珊娜 

答辯人的專家證人: 胡子祥 

法庭結果: 申請人勝訴。法庭發出損害賠償命令。

節錄判案書部份內容以供參考:

-這案件是關乎由2011年3月至2013年9月發生在該單位內的數次滲水事件("滲水事件")。(第5段)

-原告人傳召三位證人, 包括兩位原告人及專家證人劉珊娜女士("劉女士")。(第7段)

-本席接納原告人的專家證人劉女士的證供。她認為該單位滲漏的源頭"為雨水通過水箱外牆的裂痕, 水箱的外牆包括水箱頂頭的外牆, 水喉管旁, 及水箱側面的外牆。所謂水箱側面的外牆, 其實是該單位的外牆。 (第10段)

-被告人傳召張志雄("張先生")及專家證人胡子祥("胡先生")作供。(第13段)

-本席不接受被告人的專家證人胡先生的證供。本席認為他的報告較為草率, 連一些最基本的資料也掌握錯誤。(第17段)

-本席認為, 本案的滲水源頭至為明顯, 即如上述12段所述, 滲水是因為外牆的裂縫所致。(第23段)

-胡先生對劉女士測試的批評都是一些支節而已, 對劉女士的報告影響不大。(第29段)

-本席認為其餘項目均為合理, 其中包裝緊急的工程費用HK$13000, 沙發費用HK$3000 (3000元的新沙發並非不合理), 及維修單位的費用HK$75000, 本席接受主人房的橫樑也須維修。(第36段)

-本案的漏水情況較為嚴重, 影響大部份客廳, 有持續滴水的情況, 嚴重滲水的時間超過一年, 本席裁定賠償額為HK$50000。(第38段)

-本席裁定原告人得直, 並撤銷被告人的反申索。(第39段)

案例 (7)  高等法院  法庭案件編號 HCA 1010/ 2019 (請按查閱全文)

申請人的專家證人: 劉珊娜 (Lau Shan La) 

答辯人的專家證人: 鄧智宏 (Tang Chi Wang)

法庭結果: 申請人勝訴。法庭發出強制維修命令、損害賠償命令及訟費命令。

節錄判案書部份內容以供參考:

- This is an action brought by the owner of one flat against the owner of the flat immediately

above, complaining of water seepage. The flats in question are both Flat D, on 35/F and

36/F respectively, in one of the towers of a development on Hoi Fai Road, Kowloon. I shall

refer to them as “35D” and “36D” respectively. (Clause 1)

- Meanwhile, the plaintiff had engaged Ms Lau Shan La (“Ms Lau”), a surveyor of Hong

Kong Survey Ltd, who inspected 35D in November and December 2016. She did not have

access to 36D. She issued a report dated 11 January 2017, concluding that the water

seepage in 35D had originated from the faulty waterproof layer of the bathroom floor slab

and related drainage pipes of 36D. (Clause 10)

- Ms Lau investigated in 35D on three occasions in November and December 2016. She

observed that there were water stains, spalled concrete and exposed steel bars in the

ceiling of the master bathroom, and also spalled concrete and exposed steel bars in the

ceiling of the guest bathroom. Infrared scans showed abnormally cool areas in the ceilings,

indicating water seepage as Mr Tang acknowledged. Electrical conductivity tests also

showed water seepage in the ceilings. Microwave scans showed more moisture at 110 mm

depth than at 30 mm depth, and from the pattern of the tomography Ms Lau reasoned that

the moisture had come from above. In her oral evidence she gave further explanation of

this reasoning which I accept. She also made visual inspection and infrared scan of the

external wall of the two flats, which did not reveal any leakage there. (Clause 20)

- On balance, I prefer the opinion of Ms Lau on this point: (Clause 31)

- The plaintiff does not have to prove the cause of seepage to a certainty. Having evaluated

the evidence, I consider that the plaintiff has proved on a balance of probabilities, i.e. that it

is more likely than not, that the water seepage had originated from the bathroom of 36D. It

follows that the defendant is liable in both tort and contract as alleged by the plaintiff.

(Clause 52)

- The plaintiff is entitled to damages for the loss suffered as a result and/or indemnity of the

expenses of necessary repairs, which I assess below. In the circumstances of this case I

also grant an injunction requiring the defendant to cause all necessary works to be carried

out for the purpose of rectifying and making good the floor of 36D in order to prevent any

further water seepage to 35D. Such works should be effected and completed within 4

months. There will be liberty to apply in relation to matters ancillary to the injunction.

(Clause 53)

備註欄:

(1) 透過公正行專家報告, 大部份滲水問題或爭議已可透過協商、談判、調解、仲裁方式解決。

(2) 一般情況下，法庭訴訟應是解決滲水問題或滲水爭議的最後選擇方案。

(3) 本行建議採取或進行任何法律行動或訴訟前應自行充分咨詢法律意見。