李佩霞 v. 黃蘇記運輸有限公司

DCEO 4/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 4 OF 2013

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ASSESSMENT OF DAMAGES

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1.  A person discriminates against a woman if on the ground of her pregnancy he treats her less favourably than he treats or would treat a person who is not pregnant: section 8(a) of the Sex Discrimination Ordinance, Cap 480 (“SDO”).

2.  It is also unlawful for a person, in the case of a woman employed by him, to discriminate against her by dismissing her or subjecting her to any other detriment: section 11(2)(c) of SDO.

3.  Similarly, a person discriminates against another person if on the ground of that other person’s disability he treats him less favourably than he treats or would treat a person without a disability: section 6(a) of the Disability Discrimination Ordinance, Cap 487 (“DDO”).

4.  It is unlawful for the employer, in the case of a person with a disability employed by him, to discriminate against that person by dismissing that person or subjecting him to any other detriment: section 11(2)(c) of DDO.

5.  By this action, the plaintiff claimed against the defendant for (i) loss and damage; (ii) declaratory relief; and (iii) an order that the defendant do issue a work reference to the plaintiff, on the grounds that the defendant was in breach of the aforesaid provisions.

6.  The writ of this action was served on the defendant by means of substituted service.  The defendant did not enter an appearance, and judgment was entered against the defendant on 11 September 2013 for loss and damage to be assessed after the plaintiff has abandoned her claim for declaratory relief and work reference.

7.  This is the assessment of the damages due to the plaintiff.  Notice of the hearing (together with the written opening and the assessment bundle) was served on the defendant, but the defendant did not turn up at the hearing.

The plaintiff’s evidence

8.  By making default in giving notice of intention to defend, the defendant is taken to have admitted all the allegations in the statement of claim: Hong Kong Civil Procedure 2014, §13/0/10. For this reason, the following facts pleaded in the statement of claim have been admitted:[1]

(a) The defendant operates a transportation business in Hong Kong.

(b) Since 29 August 2011, the defendant employed the plaintiff as a data processing officer (資料操作員) at the monthly salary of $11,000.

(c) In the evening of 16 October 2011, the plaintiff was admitted to hospital for abdominal pain and was diagnosed to have umbilical hernia.  She telephoned the defendant’s director 黃偉樂 (“Mr Wong”) and informed him of her condition.

(d) On the next day (ie 17 October 2011), the doctor confirmed that the plaintiff was pregnant.  She telephoned her supervisor 陳家俊 (“Mr Chan”) and asked him to relay the message to Mr Wong.

(e) The plaintiff was discharged from hospital on 19 October 2011 and was granted sick leave until 22 October 2011.

(f) In the evening of 20 October 2011, the plaintiff received a telephone call from Mr Chan who informed her that the defendant had decided to terminate her employment and would give her 7 days’ salary in-lieu of notice.  She then called Mr Wong to confirm and was told that she had been fired notwithstanding her disability and pregnancy.

(g) The plaintiff has suffered loss and damage as a result, including injury to feelings and loss of earnings.

9.  The plaintiff testified at the assessment.  She confirmed the above and gave evidence on her background as well as the loss and damage she suffered.  There is no contrary evidence and I accept her evidence.

10.  She said she enjoyed and treasured working for the defendant and had worked hard.  She felt betrayed when the defendant terminated her employment because of her illness and pregnancy.  She was the sole breadwinner of the family and felt anxious, helpless and humiliated after the incident.  She suffered physically and emotionally, and had a miscarriage on 26 October 2011.

The assessment

11.  Having regard to the definition of “disability” under section 2(1) of DDO, I accept that the illness suffered by the plaintiff at the time (ie umbilical hernia) may be regarded as a disability.

12.  Based on the facts admitted by the defendant (see above), it is clear that the defendant was in breach of sections 8(a) and 11(2)(c) of SDO and sections 6(a) and 11(2)(c) of DDO in terminating the plaintiff’s employment on account of her disability and pregnancy.

13.  The plaintiff’s counsel (Mr Cheung) submits that the plaintiff is entitled to the following heads of damages:

(a) compensation for injury to feelings; and

(b) loss of earnings.

14.  In terms of injury to feelings, he relies on the following authorities and suggests damages in the tune of $80,000:

(a) Chan Choi Yin Janice v Toppan Forms (HK) Ltd  [2006] 3 HKC 143;

(b) Lam Wing Lai v YT Cheng (Chingtai) Ltd [2006] 1 HKC 323;

(c) Yuen Wai Han v South Elderly Affairs Ltd [2002] 3 HKLRD 621; and

(d) Lau Hoi Man Kathy v Emaster Consultants Limited, unreported, DCEO 11/2012, 3 January 2014.

15.  The Court of Appeal in Hong Kong applied the English authority of Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 in the case of袁慧嫺訴南方安老事務有限公司 [2005] 2 HKLRD 277 and commented that:

“46. … 本庭必需強調，以任何方式歧視一名懷孕婦女，是極為嚴重的違法行為，法庭亦必會向該名被歧視的懷孕婦女作出可觀的情感傷害賠償，以反映法庭保護懷孕婦女的決心。一般而言，賠償金額不應少過50,000元。”

16.  In Vento, the English Court of Appeal gave the following guidelines on assessment of compensation for injury to feelings in discrimination cases:

“53. In Prison Service v Johnson [1997] ICR 275 Smith J reviewed the authorities on compensation for non-pecuniary loss and made a valuable summary of the general principles gathered from them. We would gratefully adopt that summary. Employment tribunals should have it in mind when carrying out this challenging exercise. In her judgment on behalf of the appeal tribunal Smith J said, at p 283:

‘(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham MR [in John v MGN Ltd [1997] QB 586, 611], be seen as the way to ‘untaxed riches’. (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising that discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made.’

…

65. Employment tribunals and those who practise in them might find it helpful if this court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury. (i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. (ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. (iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

66. There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.”

17.  Applying Vento and taking into account local authorities, the Court of Appeal in 袁慧嫺upheld an award of $62,500 for injury to feelings against an employer who had terminated the employment contract of his employee about one week prior to its commencement by reason of the employee’s pregnancy and who had wilfully and wrongfully complained to the police that the employee had provided false information in seeking employment.  The Court considered that the employer’s act of making a false report to the police had aggravated the employee’s distress which brought the case beyond the lowest band in Vento. 

18.  In the present case, the plaintiff had only worked for the defendant for about 2 months prior to the termination of her employment.  Although I accept that she cared a lot about her employment with the defendant and must have felt betrayed, her injured feeling would not be substantial.  The circumstances of this case is much less serious than that in Chan Choi Yin Janice (an award of $200,000 for injury to feelings involving unfair treatment including demotion, victimization, deliberate marginalization and isolation amongst colleagues for about 2 years), in Lam Wing Lai (an award of $75,000 for the complainant who had worked in a “respected position” for 1½ years and the dismissal had cost her the friendship of her colleagues) and in 袁慧嫺(discussed above).

19.  In my view, this case is similar to the recent case of Lau Hoi Man Kathy in which the employer maneuvered a 1-day break in-between the complainant’s employment contracts upon knowing the complainant’s pregnancy to avoid (so the employer thought) granting maternity leave to the complainant. In that case, the Court took into account 袁慧嫺and awarded $50,000 for injury to feelings.  I accept that the plaintiff in this case has suffered much anxiety for losing her job as she is the sole breadwinner of her family. 

20.  There is no medical evidence linking the subsequent miscarriage to the wrongful act of the defendant.  The plaintiff is not suggesting that the discriminatory act of the defendant, which appears to be an one-off incident, had anything to do with the miscarriage.

21.  Taking everything into consideration, I accept that this case falls into the lowest bracket in Vento and award the plaintiff $60,000 for her injured feelings.

22.  Turning now to loss of earnings, the plaintiff has pleaded a claim of $170,500 (being 18 months’ salary at $11,000 per month minus no-pay maternity leave).  Her evidence at the assessment is that she was educated up to Form 3 and does not know how to enter data in Chinese.  She had worked as a secretary before and it had taken her 6 months to locate the job with the defendant.  She is presently unemployed.

23.  Given the evidence, Mr Cheung has fairly conceded the pleaded amount and suggested me to focus on the time that the plaintiff would reasonably require to look for alternative employment.  I agree.

24.  The plaintiff is under a duty to mitigate her loss, which means that she “must take all reasonable steps to mitigate the loss to [her] consequent upon the defendant’s wrong and cannot recover damages for any loss which [she] could thus have avoided but has failed, through unreasonable action or inaction, to avoid.”[2] The purpose of the rule is said to “prevent the waste of resources in society, since they are obviously limited”.[3] 

25.  Although the onus of proof on the issue of mitigation is generally on the defendant,[4] in cases such as the present one where the defendant has not appeared, it is still the duty of the plaintiff to satisfy the Court that her claim may properly be attributed to the defendant’s wrong.

26.  It has been more than 2 years since the plaintiff’s employment with the defendant ended and she is still out of job.  There is no explanation as to why she has been unable to hold down a job.  Judging from the job title (data processing officer) and the salary ($11,000 per month), it does not appear that her job with the defendant required any special skill.  There is no suggestion that similar jobs with comparable salary are not available in the market.  Her education level and the fact that she does not possess the skill to enter data in Chinese may explain why she had taken 6 months (which is longer than usual) to secure the defendant’s employment.  In the premises, I shall take her previous experience as a guide and award her 6 months’ salary to compensate her for the time she reasonably required to look for alternative employment.  That comes to $66,000.

Conclusion

27.  For the above reasons, the defendant should pay the plaintiff:

(a) $60,000 being damages for injury to feelings; and

(b) $66,000 being loss of earnings.

28.  The plaintiff is entitled to interest on loss of earnings from the date of wrongful dismissal (ie 20 October 2011) to date of judgment at half judgment rate and thereafter at judgment rate.  I further grant interest on damages for injury to feelings at 2% per annum from the date of writ to the date of judgment and thereafter at judgment rate until payment.

29.  I order the defendant to pay the plaintiff’s costs of this assessment, to be taxed if not agreed with certificate for counsel.

(Justin Ko) Acting Chief District Judge