LUCY MICHAELS v. THE APEX HORIZON

HCPI 900/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 900 OF 2016

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DECISION

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1.  On 25 January 2017, the master handed down a decision in this personal injury action which he dismissed an application by Mrs Michaels for summary judgment against the defendant, and allowed an application by the defendant will all to strike out the action is not disclosing a reasonable cause of action.

2.  The master was quite right to dismiss Mrs Michaels’ application for summary judgment.  It is quite plain that an application for summary judgment is only to be allowed in cases where there was no serious material factual dispute, or if there is a legal issue, the answer to that issue is so plain that it could be decided summarily.

3.  Mrs Michaels’ confidence in her factual situation is not sufficient to justify summary judgment in circumstances where there is a genuine and serious dispute as to the facts.  The defendant does not accept the facts as alleged by Mrs Michaels. She must go to court and prove those facts.

4.  It is quite clear that there are triable issues, both as to whether the events alleged by Mrs Michaels took place as she alleges, and whether or not those events had the medical and physical consequences Mrs Michael alleges. There being triable issues in respect of both of those matters it would be quite wrong to grant summary judgment.

5.  As well as triable issues on the facts, there is plainly a triable issue as to whether or not the consequences allegedly suffered by Mrs Michaels as a result of the facts she alleges have given rise to such a medical condition as might be recognised as a psychiatric injury such as to attract liability on the part of the defendant.

6.  It is not without significance that Mrs Michaels has failed to serve any medical report as required by the Rules of the High Court, Order 18, rule 12(1C), nor has her she complied with paragraph 65 of Practice Direction 18.1.

7.  I accept, as Mr Lok pointed out, that even a litigant in person must conform to the court rules and procedures: since AXA China Region Insurance Co Ltd v Leong Fong Cheng(unreported, CACV 113/2016, 28 October 2016). 

8.  However, as I am satisfied that there is at least a triable issue in respect of whether or not the consequences allegedly suffered by Mrs Michaels might be recognised as of psychiatric injury such as to attract liability, I do not think that this is an appropriate case where Mrs Michaels should be denied her day in court for non-compliance with rules that can be met by her. This is a matter that can be resolved by appropriate directions, rather than the draconian step of striking out.  I caution Mrs Michaels however, that striking out is a course that will be open to the court if the appropriate medical reports are not filed in accordance with directions to be given.

9.  I do not accept Mr Lok’s submission that the statement of claim discloses no reasonable cause of action.  Neither can it be said that the statement of claim is scandalous, frivolous or vexatious.  It is a matter for trial whether or not the events alleged by Mrs Michaels took place as she says, whether or not the shuttle bus driver or the security guard had the intention alleged, whether or not those events had the consequences Mrs Michaels alleges, and whether or not those consequences constitute a recognised psychiatric injury.

10.  Allowing for the fact that the statement of claim has been drawn by Mrs Michaels in person, without proper legal assistance, I am satisfied that it is possible to discern the foundations of the tort of harassment.  I accept that there are differing views as to whether or not that tort exists, and its particular requirements.  Those are matters which are better determined in a trial when facts are established rather than being dealt with summarily and speculatively.

11.  For these reasons Mrs Michaels’ application for summary judgment must be dismissed, and the defendant’s application to strike out also dismissed.

12.  Mr Lok takes the point that “The Apex Horizon is not itself a legal entity but simply a trade name under which Horizon Hotels and Suites Ltd (‘HHSL’), operated the business.”  Having regard to the fact that Mrs Michaels is acting in person I do not allow this point.  There will be an order substituting “Horizon Hotels and Suites Ltd trading as Vianni Cove Management Services” as the 2^nd defendant in the proceedings.

13.  Mrs Michaels has not stated the sum she seeks way of damages.  In the course of the hearing I enquired from her what sum she thought was appropriate.  She replied $5 million.  I am completely satisfied that even if Mrs Michaels were wholly successful in these proceedings the damages that she would receive would not exceed the sum of $1 million.

14.  Pursuant to section 43(3) of the District Court Ordinance, Cap 336, the Court of First Instance is required to transfer proceedings within the jurisdiction of the District Court to that court unless it is of the opinion that by reason of the importance or complexity of any issue arising in the action or for any other reason the actual to remain in the Court of First Instance.  This is a straightforward personal injury action, and although there are issues as to whether or not the tort of harassment exists, that issue is not such as to require the proceedings to remain in this court.

15.  I am satisfied that there should be an order pursuant to section 43(1), on the motion of the Court that these proceedings be transferred to the District Court.  There will be an order accordingly.  It will be for the judge in charge of the Personal Injury List in the District Court to give appropriate directions on the requirement on Mrs Michaels to file medical reports.

16.  Mrs Michaels has failed in her appeal against the dismissal of the application for summary judgment. She has succeeded in her appeal that the proceedings should be struck out. There will be an order nisi that there be no order as to costs.

HCPI 900/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 900 OF 2016

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D E C I S I O N

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1.  This is a personal injury claim and there are two applications: the defendant’s summons for striking out and the plaintiff’s summons for summary judgment.  As both summonses are essentially “the opposite sides of the same coin”, the arguments are heard together.

BACKGROUND

2.  The plaintiff was a resident at the hotel called “The Apex Horizon” from around April 2014 until around October 2014 (for a fixed term of 6 months by way of a license agreement).

3.  The plaintiff, acting in person, took out a writ on 14 April 2016 claiming against “The Apex Horizon”.  The allegations ran to over 30 pages in the writ which can be summarised by complaints of the attitudes of various alleged staff or others on a few incidents, and various incidents of noise disturbance and defects inside the room (the refrigerators, air-conditioning, toilet, TV and the mattresses) etc..

4.  The plaintiff claimed “(1) Damages for pain and sufferings – or such sum as this Honourable Court may award, (2) Costs, (3) Such further and/or other reliefs as this Honourable Court deems fit.”

5.  The “pain and suffering” of the plaintiff was extensively described in various passages in the Writ as: “trembling, fearfulness, anxiety, exhausted, embarrassment, disappointed, saddened, shivering, difficulty in breathing, irregular heartbeat, knees becoming stiff, stressed out, tense, difficulty in walking without losing balance, feeling dizzy and weak, muscle cramps, severe sore and pain, torment, agony and feeling of helplessness, sudden severe weight loss, serious grief, sleep deprivation and nightmare” etc..  The plaintiff also claimed to be sick for around two months and she “believed” that it was “due to weakened immune system” etc..

6.  Despite such an extensive list of alleged “pain and suffering”, the plaintiff did not alleged that she had ever attended a doctor for treatment either in the writ or in all her affidavits.  More importantly, the plaintiff has not served any “medical report(s) within the meaning of RHC, Order 18, rule 12(1C)….At least one medical report must describe the Plaintiff’s condition at a time preferably no earlier than 4 months prior to service thereof…” in accordance with paragraph 65 of PD18.1.

THE MATTERS IN DISPUTE

7.  The legal principles of summary judgment and striking out are trite and I need not repeat them here.

8.  The plaintiff, in support of her application, simply repeated her allegations and claimed “no defence” by arguing how strong her own evidence is compared to the defendant’s etc.

9.  I do not agree.  There are plenty of disputes in this claim: for example, even the status of the defendant as a legal entity was in dispute (it was alleged in the Defence that “the Apex Horizon” was operated by Horizon Hotels and Suites Limited which held the hotel operation license), not to mention the dispute as to whether many of the incidents took place as alleged. This is clearly not a case for summary judgment.

10.  The plaintiff’s claim mainly concerns the following:-

(a)   An incident when a shuttle bus driver (whom the defendant claimed was an employee of an independent contractor in any case) drove off before the plaintiff could “completely sit down”, then “suddenly pulled over on the side of the street” and shouted in a “domineering manner”: “Hey! Did you insert your card key yet?” “You have to do it now.” The plaintiff also alleged that after she had made a complaint, the Front Office Manager “immediately went directly towards the driver…and she communicated with him. The driver immediately changed his attitude and behaved unusually well-mannered with everyone…”

(b)   Another incident when a security guard examined the plaintiff’s bag and remarked that it was oversized and objected to her carrying it into the bus.  However, the plaintiff also alleged that the Front Desk Manager again “came immediately to assist….and she made sure I boarded the bus with my bag.”

(c)   Besides these allegations, as I stated above, there were various complaints of dissatisfaction in the accommodation.

11.  All along, there was no allegation of any battery or threat to commit battery against the plaintiff. Thus, for the 2 incidents described in paragraph 10 (a) and (b) above, even taking the plaintiff’s case to the highest, would amount to no more than rude or abrupt behavior during the course of the driver or the security guard performing their respective duties, i.e. checking the car key entry or checking the hand‑carry luggage for size.

12.  I need not list the rest of the plaintiff’s complaints including those about various dissatisfactions with the accommodation.  Suffice to say, they read more like a “poor review” on one of the hotel rating internet websites than something that is actionable in law: fire alarms going off, fridges breaking down, screaming kids in the corridor etc..

13.  More importantly, although the plaintiff may have exhausted all English vocabulary describing negative feelings, none amount to show that she has suffered from any medically recognised illness or injury that was caused by such incidents.

14.  This is a personal injury claim and yet, in the writ and her affidavits, the plaintiff never alleged that she had consulted any doctors and obtained any diagnosis of the illness or injury at the relevant time (or even now, more than 2 years after the alleged incidents).  Indeed, she has not, in accordance with PD18.1, lodged any supportive medical report.

15.  Mr. Lok, Counsel for the defendant, submitted that the alleged claim, even if taken to be entirely true, would not amount to:-

(a)   the tort of assault (per Home Office v Mary Jane Wainwright [2004] 2 AC 406 and Wong Kwai Fun v. Li Fung [1994] 1 HKC 549);

(b)   the tort of intentionally causing physical or psychological harm (or willfully infringing the right to personal safety) (per O (A Child)v Rhodes and Another (English PEN and others intervening) [2016] AC 219);

(c)   the tort of intimidation (per Lau Tat Wai v Lai v Yip Lai Kuen Joey [2013] 2 HKC 361), or

(d)   “the tort of harassment” (even if that existed as a matter of common law in Hong Kong: Wong Tai Wai David v the HKSAR Government CACV 19/2003 and 247/2003 and Lau Tat Wai v Lai v Yip Lai Kuen Joey [2013] 2 HKC 361).

16.  I agree.  In particular, I note that Lord Hoffmann, in the House of Lord case of Wainwright v. Home Office [2004] 2 AC 406, stated that:

“In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation….It does not provide a remedy for distress which does not amount to recognised psychiatric injury…”

17.  In the same case, Lord Scott observed,

“The unjustified infliction of humiliation and distress does not, without more, suffice at common law to constitute a tort.”

18.  Indeed, it would be a sad day for our society if the public see that they should find remedy in court for every negative feeling they experienced for any perceived lack of courtesy, inconsiderate behavior, temper outburst or dissatisfaction.  Such behaviours may well be entirely unjustifiable and inappropriate, but, regrettably, they are (and will always be) everyday occurrences in human interactions that any reasonable person should have learned to cope and deal with by means other than litigation in court.

ORDER

19.  For the reasons above, I find that the plaintiff’s claim to be entirely frivolous and vexatious, and is a clear case of an abuse of the process of the court.

20.  I will therefore order that:-

a)   The plaintiff’s claim in this action be struck out;

b)   The plaintiff’s summons dated 22 July 2016 be dismissed; and

c)   The costs of this action, including the costs of and occasioned by the plaintiff’s summons dated 22 July 2016 and the defendant’s summons dated 21 July 2016, be to the defendant to be taxed if not agreed.  Certificate for Counsel is awarded for the hearing on 3 January 2017.