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法庭案例  (节录部份法庭判案书内部份内容以供参考)   

 

案例 (1)  土地审裁处  法庭案件编号 LDBM 18/2014  (请按查阅全文)

申请人的专家证人: 香港公正行 (刘珊娜)  

法庭结果: 申请人胜诉法庭发出强制维修命令损害赔偿命令及讼费命令

节录判案书部份内容以供参考:

-申请人在2013年12月14日委托了香港公正行有限公司作调查,以找出12G单位内渗漏的源头, 调查由专家证人刘珊娜女士("刘女士")负责。(第12段)

-由于答辩人拒绝让刘女士进入13G单位作调查,刘女士在2013年12月14日只到了12G单位,以目视勘察法、徵状分析法、导电感应检测法、水样本分析法、紫外线鉴定法、红外线扫描法以及微波扫描法进行调查。(第13段)

-在考虑过双方的证供后,本席认为申请人一方已成功举证,12G单位的渗漏情况,源自13G单位的主厕及客厕地台(第24段)

-答辩人曾提出,渗漏可能是从外墙破损引起,唯本席接纳刘女士的证供,她已就此一可能性作出调查,亦撇除了此一可能性本席认为答辩人所指外墙渗漏情况并不存在(第31段)

-本席认同,必须颁下强制令,强制答辩人就13G单位客厕地台作维修,以解决12G单位的渗水情况亦应在维修后聘请专业人员验证妥善完成维修,以确保渗漏问题确实得到解决(第34段)

-申请人要求答辩人就渗水所造成的不便及不适, 作出50,000至80,000元的赔偿(第35段)

-本席认为以本案的情况, 就不便及不适方面的赔偿金额, 应为50,000元较为合理(第39段)

-申请人又要求答辩人赔偿,因渗漏造成12G单位破损的维修费本席在看过刘女士在报告内所开列项目及数额,接纳为合理的维修及花费(第40段)

-在讼费应视乎诉讼结果而定的大前提下,本席看不到任何特殊环境因素,为何答辩人不应承担申请人在本案中的讼费(第41段)

 

 

案例 (2)  区域法院  法庭案件编号 DCCJ 1230/2015  (请按查阅全文)

申请人的专家证人: 香港公正行 (Lau Shan La)

答辩人的专家证人: 香港验楼 (Hau Tung Chow)

法庭结果: 申请人胜诉。法庭发出强制维修命令损害赔偿命令及讼费命令

节录判案书部份内容以供参考:

-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)  区域法院  法庭案件编号 DCCJ 3244/2015  (请按查阅全文)

申请人的专家证人: 香港公正行 (Lau Shan La)

答辩人的专家证人: 银晋顾问 (Lo Kwok Kay)

法庭结果: 申请人胜诉。法庭发出强制维修命令损害赔偿命令及讼费命令

节录判案书部份内容以供参考:

-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)  区域法院  法庭案件编号 DCCJ 4020/2012  (请按查阅全交)

申请人的专家证人: 香港公正行 (Lau Shan La)

答辩人的专家证人: 专业评量 (Stewart Wong)

法庭结果: 申请人胜诉。法庭发出强制维修命令损害赔偿命令及讼费命令

节录判案书部份内容以供参考:

-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 (导电感应法); and

(2) Infra-red scanning (红外线扫描). (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)  区域法院  法庭案件编号 DCCJ 213/2017  (请按查阅全文)

申请人的专家证人: 香港公正行 (Lau Shan La)

答辩人的专家证人: 量筑工程顾问楼 (Simon WS Cheung)

法庭结果: 申请人胜诉。法庭发出强制维修命令损害赔偿命令及讼费命令

节录判案书部份内容以供参考:

-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)  区域法院  法庭案件编号 DCCJ 469/2013  (请按查阅全文)

申请人的专家证人: 刘珊娜 

答辩人的专家证人: 胡子祥 

法庭结果: 申请人胜诉。法庭发出损害赔偿命令

节录判案书部份内容以供参考:

-这案件是关乎由2011年3月至2013年9月发生在该单位内的数次渗水事件("渗水事件")(第5段)

-原告人传召三位证人, 包括两位原告人及专家证人刘珊娜女士("刘女士")(第7段)

-本席接纳原告人的专家证人刘女士的证供她认为该单位渗漏的源头"为雨水通过水箱外墙的裂痕, 水箱的外墙包括水箱顶头的外墙, 水喉管旁, 及水箱侧面的外墙所谓水箱侧面的外墙, 其实是该单位的外墙 (第10段)

-被告人传召张志雄("张先生")及专家证人胡子祥("胡先生")作供(第13段)

-本席不接受被告人的专家证人胡先生的证供本席认为他的报告较为草率, 连一些最基本的资料也掌握错误(第17段)

-本席认为, 本案的渗水源头至为明显, 即如上述12段所述, 渗水是因为外墙的裂缝所致(第23段)

-胡先生对刘女士测试的批评都是一些支节而已, 对刘女士的报告影响不大(第29段)

-本席认为其馀项目均为合理, 其中包装紧急的工程费用HK$13000, 沙发费用HK$3000 (3000元的新沙发并非不合理), 及维修单位的费用HK$75000, 本席接受主人房的横梁也须维修(第36段)

-本案的漏水情况较为严重, 影响大部份客厅, 有持续滴水的情况, 严重渗水的时间超过一年, 本席裁定赔偿额为HK$50000(第38段)

-本席裁定原告人得直, 并撤销被告人的反申索(第39段)

 

备注栏:

(1) 透过公正行专家报告, 大部份渗水问题或争议已可透过协商谈判调解仲裁方式解决

(2) 一般情况下,法庭诉讼应是解决渗水问题或渗水争议的最后选择方案。

(3) 本行建议采取或进行任何法律行动或诉讼前应自行充分咨询法律意见

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