3. Burden of proof

3. Burden of proof 

The plaintiff bears the legal burden of proof to establish, on a balance of probabilities, that the defendant’s premises is the source of the water seepage. This means the plaintiff must show it is more likely than not that the seepage originated from the defendant’s property.  

There is no legal presumption that water leakage in a multi-storey building necessarily comes from the flat immediately above or adjacent to the affected property. Consequently, the defendant is not required to (i) prove his innocence, (ii) pinpoint the actual source of the leak, or (iii) prove that the seepage did not originate from his property. While a defendant who positively identifies an alternative source (such as external walls) may strengthen his case, his failure to do so does not relieve the plaintiff of the burden of proof. 

However, the plaintiff does not necessarily need to pinpoint the exact defect or the precise part of the defendant's premises (e.g., a specific pipe joint) as the origin of the seepage. Proving that the seepage originated from the defendant’s premises as a whole, or from specific areas such as a bathroom or kitchen, may be sufficient to establish liability.  

Furthermore, the doctrine of res ipsa loquitur (the thing speaks for itself) does not apply to identify the source of seepage. For information on res ipsa loquitur, please refer to “Proof of breach”