Introduction
Water leakage, which often originates from the flat above, is a common problem encountered by many occupiers of units in a multi-storey building and is often litigated in Hong Kong. In such case, the tort of nuisance plays a role in regulating the activities of one’s neighbours.

In Tin Kin Ka Clara v Chan Koon Cheong & Hui Koon Chun Eleanor DCCJ 3139/2012 (the “Tin Kin Ka Clara”), parties involved at first solved the problems through the management office of the development (the “Management Office”) and the Buildings Department/Food and Environmental Hygiene Department Joint Office (the “Joint Office”) but eventually the plaintiff (“P”) resorted to commencing civil claims against the defendants (“Ds”).

Facts
P was living directly below Ds’ flat and had complained about water seepage over 4 separate periods in May – July 2007, April – May 2010, March – June 2011 and March – April 2012.

When P first discovered the water seepage in May 2007, she complained to the Management Office, which carried out tests in Ds’ flat and confirmed that the water seepage from P’s ceiling was due to pipe leakage in Ds’ flat. Ds then carried out necessary repair work and the water seepage ceased.

For the 3 incidents of seepage in 2010, 2011 and 2012, P repeatedly discovered water seepage from her flat’s ceiling and filed complaints to the Management Office and Joint Office, which could not ascertain the source of water seepage despite having carried out various tests. In all 3 occasions, P subsequently alleged that the water seepage ceased.

Eventually, P commenced action against Ds relying on, inter alia, the tort of nuisance.

Legal Principles

Burden of Proof
The court restated the well-established principle that in a water leakage case, there is no assumption that the seepage is necessarily caused by the premises above. The burden of proof lies with the plaintiff to establish, on a balance of probabilities, that the source of water was from the premises above, but not for the defendant to prove that the origin of seepage did not come from his own premises.

Elements
Further, the plaintiff must prove the following in a nuisance claim of water seepage:

1.         the occurrence of water seepage;

2.         the causation between the water seepage and the alleged origin of such seepage;

3.         that the defendant has actual or constructive knowledge of the water seepage originating from his premises; and

4.         that remedial action was not taken by the defendant within a reasonable time.

In relation to actual or constructive knowledge of the defendant, knowledge can be what a defendant actually knows or what he should have known with normal and reasonable diligence (Leung Wai Kee & Lau Sau Lin v Tam Yuet Sheng DCCJ 5716/2007 cited).

Decision in the Tin Kin Ka Clara Case

Incident in 2007
For the incident in 2007, the court found that the water seepage was due to the major alterations of Ds’ premises and thus causation was established. It was further held that Ds must have had actual and/or constructive knowledge of the seepage originating from their premises for reason that Ds did carry out the relevant repair work, which eventually put the water seepage to a stop.

However, the court was of the view that Ds had already taken reasonable steps to remedy the situations by (i) appointing a contractor nominated by P, (ii) carrying out the necessary repair work, which P was satisfied with and (iii) no further compliant was made for almost 3 years thereafter. Therefore, P’s nuisance claim failed.

Incidents in 2010, 2011 and 2012
As for the incidents in 2010, 2011 and 2012, upon considering various evidence, the court held that P failed to establish causation between the water seepage and conditions of D’s premises and relevant nuisance claims must fail accordingly.

Conclusion
The Tin Kin Ka Clara case reiterated the legal principle which potential claimants should consider before commencing actions of water seepage claims.

Potential plaintiff must be prepared to discharge its burden of proof by proving incidents of water seepage, causation, the potential defendant’s knowledge and untimely remedial actions (if any) taken by such defendant.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.