LUCY MICHAELS v. CENTALINE PROPERTY AGENCY LTD AND OTHERS

HCPI 902/2016

[2018] HKCFI 2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 902 OF 2016

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D E C I S I O N

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A. Introduction

1.  The plaintiff used to live with her daughter in a property rented from the 2^nd and 3^rd defendant.  The 1^st defendant was the estate agency involved in negotiating and concluding the tenancy agreement.  The plaintiff claims damage for pain and suffering due to various wrongful acts committed by the defendants relating to defects in the property. She applied for summary judgment whereas the defendants applied to strike out the action.  The Master dismissed the plaintiff’s summary judgment application and struck out her action.  This is her appeal against the Master’sorders.

B. The plaintiff’s claim

2.  The plaintiff, Mrs Lucy Michaels (“Mrs Michaels”), commenced this action against Centaline Property Agency Limited (“Centaline”), Mr Chiu Chi Hung (“Mr Chiu”) and Ms Pow Mui Ling Elina (“Ms Pow”) on 28 April 2016.

3.  Mrs Michaels’ claim as pleaded in her Statement of Claim may be summarized as follows:

(a)   Mrs Winny Wu (“Wu”) was an estate agent of Centaline.  She and her daughter engaged the service of Mrs Wu.  In the first week of March 2011, Wu arranged them to inspect a property owned by Mr Chiu and Ms Pow at Flat A, 7/F, Tower 3, Vianni Cove, Tin Shiu Wai, Yuen Long (“the Property”).  She made various complaints about the service of Mrs Wu.

(b)   On 25 March 2011, her daughter, Ms Michaels, as tenant, and Mr Chiu and Ms Pow, as landlords, signed a Tenancy Agreement for 24 months from 8 April 2011 (“the Tenancy Agreement”).

(c)   After moving in, she discovered various problems.  First, the gas stove was malfunctioning and there was a leakage of toxic gas.  Second, the lighting fixture was defective.  Third, there was mildew in the kitchen.  Fourth, the front door key was missing. 

(d)   Mrs Wu refused to handle their complaints, and concealed these problems before the execution of the Tenancy Agreement.  Nevertheless, the missing front door key was given to them by Mr Chiu and Ms Pow subsequently.  The lighting defect was, however, never fixed so that they had to rely on a desk lamp.  The problem caused by the mildew in the kitchen was also not rectified.  Apparently, her main complaint was about the gas stove.  It was replaced 5 months later on or about 8 August 2011.  However, they still could not use it due to the risk of gas leakage.  She and her daughter have been suffering from the side effects of inhaling poisonous gas.

4.  In the prayer for relief, Mrs Michaels claim damages for pain and suffering or such sum as the court may award.

C. The procedural history

5.  By a summons dated 1 June 2016, Mr Chiu and Ms Pow applied to strike out the claim against them.  By a summons dated 2 June 2016, Centaline applied to strike out the claim against it.

6.  By a summons dated 29 July 2016, Mrs Michaels applied for summary judgment.

7.  The action was then transferred to the Personal Injury List.

8.  On 15 February 2017, Master Leong dismissed the summary judgment application, and struck out the claim against all defendants with costs to be summarily assessed (“the Master’s Orders”).

9.  By a Notice of Appeal dated 27 February 2017, Mrs Michaels lodged an appeal against the Master’s Orders. It is trite that the appeal is a hearing de novo.

10.  Apart from reading all papers filed by the parties, at the hearing on 3 May 2018, I heard oral submissions from Mrs Michaels, Ms Pow (on behalf of herself and Mr Chiu), and Mr Lee on behalf of Centaline.

11.  After the hearing, on 8 May 2018, Mrs Michaels submitted a written submission dated 5 May 2018 in which she replied to various points made in Centaline’s Skeleton Submissions dated 30 April 2018. The document was not copied to Centaline, Mr Chiu or Ms Pow. Mrs Michaels had not explained why she did not make those submissions at the hearing on 3 May 2018.  It is not a proper practice for a party to make further submissions to the court after the conclusion of the hearing without seeking leave of the court or the consent of the other parties; and the court will only allow further submissions in exceptional circumstances (Choy Po Chun and another v Au Wing Lun also known as Au Wing Lun William [2018] HKCA 210, §62;To Pui Kui v Ng Kwok Piu & Ors, CACV281/2012 (21/8/2014, unreported), §§55-61). I appreciated that Mrs Michaels is acting in person, and was probably unaware that what she did was improper. Out of fairness, on 15 May 2018, I gave directions that Centaline, Mr Chiu and Ms Pow shall file written submissions in reply to Mrs Michaels’ further submissions, and they shall address two issues: first, whether I should consider Mrs Michaels’ further submissions; and second, their substantive reply to Mrs Michaels’ further submissions. I also stated expressly in my directions that, subject to the written submissions to be filed by Centaline, Mr Chiu and Ms Pow, I shall not consider any further submission filed by any party (including Mrs Michaels).

12.  Pursuant to my directions, Mr Chiu and Ms Pow submitted their submissions on 28 May 2018, and Centaline lodged its submissions on 12 June 2018. Although they submitted that I should not consider Mrs Michaels’ further submissions, they had made helpful substantive replies. In the circumstances, with some reluctance, I have decided to take into account all these submissions.

13.  What has complicated the matter further is that, on 15 May 2018 (i.e. the same day when I made the above-mentioned directions), and before she was informed of my directions, Mrs Michaels filed three additional affidavits. In the first affidavit, Mrs Michaels attached a “self assessment report based on the medical records” coupled with miscellaneous medical documents. In the second affidavit, she attached another skeleton submissions on the court’s power to override the limitation period. In the third affidavit, she gave evidence to support her submission that the court should override the limitation period. This was however not the end of the matter. On 19 June 2018, Mrs Michaels sent further letters (with attachments) to the court stating that she had already submitted medical reports before the hearing before Master Leong. Centaline, Mr Chiu and Ms Pow did not have the opportunity to respond to all these documents filed by Mrs Michaels unilaterally without the prior permission of the court. I have nevertheless considered these documents on a de bene esse basis.  Their contents are substantially similar to what had been set out in her previous documents. I was satisfied that I did not require further assistance from Centaline, Mr Chiu and Ms Pow in this respect.

14.  I must say that the way Mrs Michaels chose to conduct these proceedings is utmost unsatisfactory and indeed unfair to Centaline, Mr Chiu and Ms Pow (who are also acting in person). It is pertinent to note that the High Court of Australia approved recently in Nobarani v Mariconte [2018] HCA 36, at §47, the following judgment in another Australian case:

“the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement…An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.”

D. The striking out applications

15.  I shall consider the striking out applications of the defendants first. The principles for striking out applications under Order 18, rule 19 of the Rules of the High Court, and the inherent jurisdiction of the court, are well established.  Suffice to say that the court should only strike out a claim in a plain and obvious case; and it should not resolve any material factual dispute, or any difficult question of law in a striking out application.

16.  Mrs Wu in her affirmations denied the allegations made by Mrs Michaels.  She stated that she had never acted as the estate agent of Mrs Michaels; and that the commission was paid by Ms Michaels.

17.  Mr Chiu and Ms Pow submitted that, firstly, Mrs Michael was not a party to the Tenancy Agreement.  They also denied the allegations relating to various alleged defects in the Property.  For example, they had replaced the gas stove, and there was never any gas leakage.  They had also tried to replace the lighting but Mrs Michaels was still not satisfied.

18.  In view of the nature of a strike out application, I do not intend to go into the factual disputes between the parties.  Mr Lee complained that the Statement of Claim has failed to plead the essential elements of various causes of action that Mrs Michaels intends to rely on, and it is impossible for Centaline to know what the case it has to meet.  The Statement of Claim is prolix and confusing.  I can see the force of Mr Lee’s submissions.  It is indeed extremely difficult to identify the causes of action that Mrs Michaels intends to rely on.  Some of her allegations are very serious e.g. deception, and conspiracy to defraud.  Such allegations should not have been made lightly.

19.  Nevertheless, as I understand, Mrs Michaels’ key complaint is that she and her daughter have suffered personal injuries due to inhalation of poisonous gas, i.e. carbon monoxide, leaked from the defective gas stove in the Property. The personal injuries that they have suffered include ailments such as dizziness, nausea and vomiting, confusion, tiredness, shortness of breath and difficulty in breathing. Although she complained that there were other problems or defects with the Property, it is not her case that they have caused or contributed to the ailments suffered by her and her daughter.

20.  I am unable to see how, in law, Centaline can be held liable even if Mrs Michaels’ allegations were true. First, there cannot be any contractual claim because there was never any contractual relationship between Mrs Michaels and Centaline. In addition, even if Mrs Michaels and her daughter have suffered any personal injuries due to any defect in the Property, there is no legal basis to hold Centaline, which was merely acting as an estate agent, liable. On this ground alone, her claim against Centaline is doomed to failure.

21.  Having said that, most of the submissions are concerned with one point taken by both Centaline, and Mr Chiu and Ms Pow. They submitted that Mrs Michaels’ claims against them is timebarred by section 27 of the Limitation Ordinance (“the LO”) which provides that:

“ (1) This section applies to any action for damages for negligence,nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an Ordinance or imperial enactment or independently of any contract or any such provisions) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

…

(3) Subject to section 30, an action to which this section applies shall not be brought after the expiration of the period specified in subsections (4) and (5).

(4) Except where subsection (5) applies, the said period is 3 years from—

(a) the date on which the cause of action accrued; or

(b) the date (if later) of the plaintiff’s knowledge.”

22.  It is vital to note that section 27(1) provides that section 27 applies to any action for damages for negligence or breach of duty (whether the duty exists by virtue of a contract or under any Ordinance, or independently of any contract or any such provision) where the damages claimed consists of or include damages in respect of personal injuries to the plaintiff or any other person.  Mrs Michaels’ claims consist of and include damages for person injuries suffered by her and her daughter.  Hence, even though it is difficult to identify precisely the causes of action Mrs Michaels intends to rely on, it is clear that section 27 of LO applies to all potential causes of action claimed by her.

23.  Mr Chiu and Ms Pow submitted that the Tenancy Agreement was terminated at the request of Ms Michaels on 7 April 2012; and they had no contact with each other after that.  These were facts not in dispute.  Hence, any personal injury that they could have caused to Mrs and Ms Michaels must have occurred before 7 April 2012.

24.  I agree that the potential causes of action claimed by Mrs Michael against all defendants must have accrued before 7 April 2012.  According to section 27(4)(a), the limitation period expired, by the latest, on 7 April 2015.  As the writ was only issued on 28 April 2016, the action is, prima facie, time barred.

25.  In Kensland Realty Ltd v Tai, Tang & Chong (2008) 11 HKCFAR 237 at 289, §153, McHugh NPJ held that:

“ An order striking out a Statement of Claim, which is based on a limitation defence, can only be sustained if that defence is ‘manifestly and immediately destructive of the Plaintiff’s claim’‌…‌However, once a limitation defence is raised, the onus is on the plaintiff to prove that the cause of action relied upon accrued within the limitation period.”

26.  Mrs Michaels argued that she only acquired knowledge of the relevant facts set out in section 27(6) of the LO some time after 7 April 2012 so that section 27(4)(b) applies.  Under that rule, the relevant facts include: the injury was significant, that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty. An injury is significant if the plaintiff would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment (section 27(7)).  A person’s knowledge includes knowledge which he might reasonably have been expected to acquire from facts observable or ascertainable by him, or from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek (section 27(8)). It must, however, be borne in mind that ignorance of the law is irrelevant (section 27(6)).

27.  The identity of the defendants was clearly known to Mrs Michaels.  She pleaded in the Statement of Claim that she and her daughter experienced various symptoms such as headache, weakness and discomfort right after they moved into the flat, and they experienced and suffered various symptoms caused by the inhalation of poisonous gas while they were living in the flat.  She also stated that they had consulted doctors.  She believed that those symptoms were caused by gas leakage from the defective gas stove. However, in her further submissions made after the hearing, she claimed that she did not know that the ailments suffered by her and her daughter were caused by inhalation of poisonous gas until about two and a half year after they had moved out of the Property i.e. late 2014. Section 27(8) of the LO provides that:

“For the purposes of this section … a person’s knowledge includes knowledge which he might reasonably have been expected to acquire –

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable form him to seek,

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert evidence so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

28.  Although Mrs Michaels asserted that she only came to know in late 2014 that the ailments suffered by her and her daughter were likely caused by inhaling poisonous gas leaked from the defective gas stove in the Property, she has not explained in what circumstances she acquired such knowledge in late 2014. What she said is that, despite various medical tests and examinations, no doctor could identify what caused the ailments. It was only when, on one occasion, a specialist/specialists asked them “have you been exposed to gas, CO?” that they discovered that their ailments were associated with inhalation of carbon monoxide. They then believed that they had inhaled carbon monoxide leaked from the defective gas stove in the Property. However, Mrs Michaels has not stated who the specialist/specialists was/were; and when the said conversation with the specialist/specialists took place. She was also unable to produce any documentary proof in this respect. Bearing in mind that this is a striking out application, I am not satisfied that she has adduced credible evidence to support a reasonably arguable case that she only acquired the requisite knowledge in late 2014.

29.  Mrs Michaels argued, in the alternative, that the court should exercise its discretion to override the limitation period pursuant to section 30(1) of the LO. Section 30(1) of the LO provides that:

“ If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a) the provisions of section 27 or 28 prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.”

30.  In Mok Lai Fong v Ng Po Sui [2011] 3 HKLRD 67 at 81, §46, Master Marlene Ng (as she then was) held that:

“ Mr Cheng and Mr Lau both agree that the exercise of the discretion to disapply the limitation period is unfettered. The court performs a balancing exercise by looking at (a) the balance of prejudice to each party, (b) the six specific but non-exhaustive factors contained in s.30(3) of the Limitation Ordinance, and (c) all the circumstances of the case to see whether it would be ‘equitable’ to disapply the limitation period. The onus is on the plaintiff to show that in the particular circumstances of the case it is equitable to allow her claim to proceed having regard to the respective prejudice likely to be suffered by each party, but the first and second defendants have to prove the prejudice they say they will suffer.”

She also held in §47 that:

“Essentially, the question is whether, given the delays, the judge can fairly try the claim, and all depends on the particular circumstances of each case.”

31.  Mrs Michaels has not made any proper application under that section.  She repeated that she could not commence legal proceedings until she knew the source of their ailments in late 2014. She started to communicate with Centaline in February/March 2015, but she could not contact Mr Chiu and Ms Pow. Centaline only replied for the first time in September 2015, and indicated that it would defend any claim in October 2015. Owing to her poor health and lack of legal knowledge, she could only commence legal proceedings on 28 April 2016.

32.  As this is a striking out application, my concern is, if Mrs Michaels makes a proper application under s.30 of the LO, whether there is a reasonable prospect that the court would exercise its discretion to disapply the limitation period.  I have come to the conclusion that there is no such reasonable prospect based on the materials before me.  The length of delay is more than one year.  For reasons stated above, Mrs Michaels has not given satisfactory explanations supported by credible evidence to explain the delay.

33.  But, most importantly, what tilts the balance clearly against the exercise of discretion in Mrs Michaels’ favour to disapply the limitation period is the absence of any evidential basis to support her claim. In principle, it would make no sense to disapply the limitation period if the plaintiff does not even have a viable claim. As this is a personal injury action, Order 18, rule 12 of the Rules of the High Court applies. Under that rule, generally speaking, a plaintiff in an action for personal injuries shall serve with his statement of claim a medical report; and a “medical report” means a report substantiating all the personal injuries alleged in the statement of claim which the plaintiff proposed to adduce in evidence as part of his case at the trial.

34.  At the hearing before the Master, the Master had told Mrs Michaels that there was no medical report as required by the rule. Mrs Michaels however disagreed. She claimed that she had already provided medical reports to the court. Further, in her three affidavits filed after the hearing before me, she attempted to adduce what she considered to be medical evidence in support of her claim.

35.  I have considered all the materials presented by Mrs Michaels. I take a clear view that she has not produced any proper medical report in compliance with the rule. I bear in mind that she is acting in person, and may not know or understand the requirements imposed by the rule. However, it is not merely a failure to comply with a procedural requirement. The crucial point is that, her failure to comply with the procedural requirement coupled with other related and relevant factors (to be elaborated below), demonstrate that she does not have any viable or sustainable claim at all:

(a)   In her self assessment report, she claimed that inhalation of carbon monoxide has caused her to suffer atrial fibrillation, and her daughter to suffer from low red and white blood cell counts. She also claimed that the carbon monoxide has caused her to suffer from post traumatic stress disorder (“PTSD”).

(b)   There is medical evidence that she is indeed suffering from atrial fibrillation. While her medical records show that she felt that she has PTSD, there is no medical evidence supporting that she was or is, in fact, suffering from any diagnosable psychiatric illness. On the other hand, there is no medical record concerning her daughter at all save that there were blood test results in 2014 showing that her white blood cells were less than normal whereas her red blood cells were more than normal. There is however no explanation on the possible cause, or implication, of any such abnormal finding.

(c)   She has produced some literatures about the harmful effects of inhaling carbon monoxide. They suggest that carbon monoxide may cause various symptoms such as dizziness, nausea and vomiting, tiredness and confusion, shortness of breath and difficulty in breathing. It may also cause heart damage, including atrial fibrillation; and atrial fibrillation may in turn lead to mental stress. It appears that Mrs Michaels found these literatures on the internet.

(d)   While, in theory, inhalation of carbon monoxide may lead to various symptoms as mentioned by Mrs Michaels, there is no evidence whatsoever that the symptoms or ailments actually suffered by her and her daughter were in fact caused by inhalation of carbon monoxide at all.

(e)   Furthermore, apart from Mrs Michaels’ bare assertions, there is no evidence that the gas stove in the Property had actually leaked any gas at all. And even assuming that there was any gas leakage, there is no evidence on what the gas was, in particular, that it was or contained carbon monoxide as alleged; there is no evidence on the approximate quantity of gas that had been leaked; and there is no evidence on the approximate quantity of gas that Mrs Michaels and her daughter had inhaled. Owing to the fact that the gas stove had already been replaced back on or about 8 August 2011 and the long lapse of time, it is plainly impossible now to elicit further evidence on the above matters.

(f)   To put it shortly, there is simply no evidence whatsoever that any symptom or ailment suffered by Mrs Michaels and her daughter was caused by any gas leaked from the allegedly defective gas stove in the Property.

36.  In my view, Mrs Michaels’ claim is far-fetched, imaginative, and fanciful; it does not have any evidential basis at all. It would not make sense to disapply the limitation period to allow her to proceed with a hopeless claim. Alternatively, if, for any reason, the limitation period has not yet expired, it would still be wrong to allow her to proceed with a hopeless claim. In any view, her claim is frivolous and vexatious, and constitutes an abuse of process.

37.  For these reasons, I take the view that the Master was correct in striking out Mrs Michaels’ claims against all the defendants.

E. The Order 14 application

38.  The principles for Order 14 applications are, again, well established. The court will only grant summary judgment in a clear case where there is no triable issue or arguable defence.  In view of my conclusion on the striking out applications, it must follow that the Master was correct in dismissing the Order 14 application.

F. Conclusion and order

39.  Hence, I shall dismiss Mrs Michaels’ appeal against the Master’s Orders.  I shall also order that Mrs Michaels shall pay the costs of and incidental to this appeal to be summarily assessed. Centaline, and Mr Chiu and Ms Pow, shall file their respective statements of costs within 14 days of this decision, and Mrs Michaels shall file a list of objections (if any) to both statements within 14 days thereafter.  I shall then assess the costs summarily on paper.