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.