Chuck Wai Man v. Asia Television Ltd

CACV 29/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 29 OF 2008

(ON APPEAL FROM DCPI NO. 1166 OF 2007)

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BETWEEN

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Before:  Hon Tang VP and Reyes J in Court

Date of Hearing:  9 September 2008

Date of Judgment:  9 September 2008

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J U D G M E N T

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Hon. Reyes J:

I.   INTRODUCTION

1.Ms. Chuck sues ATV for personal injury sustained on 19 May 2004 in the course of her employment.  By Limitation Ordinance (Cap.347) (LO) s.27, such a suit has to be brought within 3 years after the event giving rise to the claim.  But Ms. Chuck did not issue a writ until 6 June 2007.  Ms. Chuck was thus 18 days late.

2.LO s.30(1) enables the Court, in the exercise of its discretion, to override the 3 year time limit in s.27.  In deciding whether or not to disapply the limit, the Court is to have regard to “all the circumstances of a case” and in particular to the 6 factors enumerated in LO s.30(3)(a)-(f).

3.Applying those factors, Deputy District Court Judge Yiu refused Ms. Chuck’s application to extend the time for her writ by 18 days.  It is against that refusal that Ms. Chuck now appeals.

II.   BACKGROUND

4.Ms. Chuck worked for ATV as an actress. 

5.On 19 May 2004 Ms. Chuck was filming for the TV series “I Have a Date with Vampires III” in the basement of a Panyu hotel.  During filming, Ms. Chuck alleges that pretended gun shots, fired at close range in the confines of the hotel basement, created strong vibrations which damaged her right ear.  She says that the vibrations also affected “the nerve which runs along my right upper limb”.  She further claims to have become “depressed and withdrawn”.

6.According to Ms. Chuck, someone told her that she could only obtain 3 months’ indemnity for medical expenses arising from the incident.  Otherwise she understood that she would have to claim against ATV directly.  But, being keen (Ms. Chuck says) not to damage her relationship with ATV, she instead signed a “certain document which [she] ... thought to be a complete release of [ATV’s] obligation in the matter”.  She also recalls having received “something less than $10,000” from ATV.

7.Ms. Chuck left ATV in 2004.  But she did not sue ATV at that point because she apparently believed that she was barred from claiming compensation by the document which she signed. 

8.Ms. Chuck says that it was not until a social occasion on 17 May 2007, when she met Mr. Jacob Cheung (a law clerk employed by her present solicitors), that Ms. Chuck learned of the possibility of pursuing the matter further.  She compiled certain documents and gave them to Mr. Cheung at his suggestion.  By that time, it was 2 weeks after the s.27 limit had expired.

9.Mr. Cheung told Ms. Chuck to consult counsel immediately. Counsel (Mr. Albert Yau) advised taking out a writ and applying for an extension of the limit in s.27.

III.  DISCUSSION

10.By LO s.30(1) the Court may disregard the 3 year limit in s.27 if “it would be equitable to allow an action to proceed”.  This involves balancing the degree to which applying the 3 year limit in s.27 prejudices a plaintiff against the extent to which a decision to disregard the limit would prejudice a defendant.

11.In conducting the balancing exercise stipulated by s.30(1), the Court is required by s.30(3) to have regard to the following factors:-

“(a)   the length of, and the reasons for, the delay on the part of the Plaintiff;

(b)     the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the Plaintiff or the Defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;

(c)     the conduct of the Defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the Plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the Plaintiff’s cause of action against the Defendant;

(d)     the duration of any disability of the Plaintiff, arising after the date of the accrual of the cause of action;

(e)     the extent to which the Plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the Defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)      the steps, if any taken by the Plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

12.Judge Yiu conducted the exercise required by s.30(3) as follows (at §16):-

“The factors listed in section 30(3) stated above shall be taken into account, together with all the circumstances in the balancing exercise.

(i)      Length of and reasons for the delay

It was only 18 days’ delay, a relatively very short period, but I assess that the Plaintiff could offer no good reason for the delay.

(ii)     Cogency of evidence affected

Defendant submitted that the Plaintiff had left in 2004 and it would be difficult to retrieve relevant information.  However, I see that 18 days’ delay shall only have minimal effect on the cogency issue.

(iii)     Conduct of the Defendant

There was no allegation by the Plaintiff of Defendant’s failure to respond, to her request for information or for providing misinformation.

(iv)    Duration of any disability of the Plaintiff

The only reference in the Plaintiff’s affirmation seems to be in paragraph 5 that the Plaintiff became depressed and withdrawn.  However, there was no medical evidence or proof attached, nor was there any suggestion that the Plaintiff was thereby unable to seek legal advice or was unable to discover her legal rights.

(v)     Prompt and reasonable action by the Plaintiff

It was not until 17 May 2007 that the Plaintiff sought assistance on a social occasion.  But quite speedy action has then been taken to file the endorsement of writ on 6 June 2007.

(vi)    Steps taken by Plaintiff to obtain expert advice

Again, it was only taken on 17 May 2007 and it seems there were no other steps taken by the Plaintiff.

Balance of prejudice

I do understand the delay was only a relatively very short period of 18 days.  But I found that there was in fact no good reason offered by the Plaintiff.  The prejudice to the Plaintiff by the operation of the Limitation provision and the prejudice resulted to the Defendant of disapplying section 27 will be equal and opposite.  It is not necessary for me to consider the relative strength of both parties’ case.”

13.Exercising his discretion, Judge Yiu concluded (at §18):-

“On balance, I consider the prejudice suffered by the Defendant by disapplying section 27 outweighs the prejudice suffered by the Plaintiff.  In the circumstances, I shall order that it would not be equitable to allow this action to proceed, and that section 27 shall apply in this action.”

14.The Court of Appeal normally hesitates to interfere with a first instance judge’s exercise of discretion.  This Court typically will not interfere unless the first instance judge:-

(1)     acted under a mistake of law;

(2)     disregarded principle;

(3)     took account of irrelevant matters;

(4)     failed to take account of relevant matters;

(5)     in actuality did not exercise any discretion at all; or,

(6)     came to a conclusion which no judge could properly have reached.

15.I think that Judge Yiu did a masterful job in the course of his succinct evaluation of the 6 factors in §16 of his Decision.  However, an unfortunate contradiction appears to have crept in between the latter paragraph and the penultimate paragraph (§18) of his Decision.

16.In Decision §16, Judge Yiu seems to have concluded that the potential prejudice to either side was evenly balanced (“equal and opposite”).  Such outcome when applying s.30(3) is a perfectly possible result. 

17.The difficulty is that, without any apparent explanation in §17 or elsewhere, Judge Yiu moves from finding an even balance in §16 to a statement in §18 that “the prejudice suffered by the Defendant ... outweighs the prejudice suffered by the Plaintiff”.

18.There being an apparent contradiction in reasoning, I regret that the Decision below cannot be treated as one which a judge could properly have reached in the exercise of a discretion.  It is open to this Court to apply the 6 factors and substitute its conclusion for that of the court below.

19.To my mind, the key factor which tips the balance decisively in favour of disapplying the s.27 limitation is the fact that only 18 days have passed between the expiry of the 3 year limit and the issuing of the writ. 

20.Given that “relatively very short period,” it is unlikely that ATV’s position could have been adversely affected in any significant way by the late filing of the writ.  Certainly, ATV has not provided any affirmation to identify the prejudice which it is likely to suffer as a result of the 18 days’ delay.

21.In contrast, rigorously applying the 3 year limit would effectively end Ms. Chuck’s claim.  That would potentially be a far greater detriment to her.  There is no suggestion that her claim is patently unmeritorious or an abuse of process on its face.

22.In those premises, I would exercise my discretion here in favour of disapplying the s.27 limit.

IV.  CONCLUSION

23.I would allow the appeal.  In my view, it would be equitable to allow Ms. Chuck’s claim to proceed.  Consequently, s.27 should not be applied to this action.

Hon. Tang VP:

24.I agree.  The correct approach is well settled.  As Lord Hoffmann said in Horton v Sadler [2007] 1 AC 307 at 327 since Thompson v Brown [1981] 1 WLR 744 (another decision of the House of Lords):-

“…the practice of the courts has been regularly to exercise the discretion in favour of the plaintiff in all cases in which the defendant cannot show that he has been prejudiced by the delay.”

and that:-

“the plea of limitation which the statute confers upon the defendant is, in the absence of forensic prejudice, described as a windfall of which he can properly be deprived.”

25.So for these reasons, the appeal is allowed.

Mr Albert Yau, instructed by Messrs Lau, Chan & Ko, for the Plaintiff/Appellant

Mr Wong Chi Kwong, instructed by Messrs Waller Ma Huang & Yeung, for the Defendant/Respondent