SIT KA YIN PRISCILLA v. EQUAL OPPORTUNITIES COMMISSION AND OTHERS

DCEO11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 11 OF 1999

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R U L I N G

1.  This is an application by the Plaintiff for leave to file a medical report by Dr Lam Tat Chung Paul dated 22 October 2009 and another report by Dr Arthur Chiang Si Chung dated 22 October 2009.

2.  The Plaintiff was employed as Director (Gender) of the 1st Defendant since 9 September 1996.  Her employment was terminated on 25 September 1997 with immediate effect.  The Plaintiff alleges that she had been discriminated against by the Defendants on the ground of disability and sex which resulted in the termination of her employment, and so she claims for damages and other relief against the Defendants.

3.  At the material time, the 2nd and the 3rd Defendants were respectively the chairman and the chief executive of the 1st Defendant.

4.  According to the Plaintiff’s case as pleaded in the Amended Particulars of Claim, she was suffering from the following disabilities in or about early June 1997:

(1)      neck injury;

(2)      severe muscular and other pains in neck and right arm;

(3)      substantially increased immobility; and

(4)      regular high fever.

Apart from the claim for sex discrimination, the Plaintiff alleges that the Defendants had unlawfully discriminated against her by reason of these disabilities.

5.  According to Dr Lam’s report, the Plaintiff was suffering from anxiety and depressive symptoms in the relevant period from May to September 1997, whereas according to the report of Dr Chiang, the Plaintiff was suffering from swelling of eyelid and acute right neck and shoulder pain in the relevant period.

6.  Firstly, I have no difficulty in refusing the Plaintiff’s application for leave to adduce the medical report by Dr Lam.  It is clear that the Plaintiff has not raised the allegation, whether in the pleadings or in her witness statements, that she was suffering from any kind of anxiety or depressive symptoms when she worked for the 1st Defendant.  As this trial takes place about 12 years after the alleged acts of discrimination, it is simply too late for the Plaintiff to raise such new allegation at this stage.

7.  In fact, it has all along been the Plaintiff’s case that her work performance as an employee of the 1st Defendant was satisfactory and as a result, it was only because of her sex and physical disabilities that the Defendants had treated her unfavourably.  However, by seeking to rely on the medical report by Dr Lam, the Plaintiff seems to suggest that her work performance or behaviour at the relevant time might have been affected by her psychological impairment.  This would be a new allegation and the Plaintiff’s case would then be totally different.  By reason of the lapse of time, the Defendants would have considerable difficulty in dealing with this new allegation at such a late stage.  Hence, it is not appropriate for the court to grant leave to the Plaintiff to adduce the medical report by Dr Lam.

8.  I then turn to the medical report by Dr Chiang.  As I see it, Dr Chiang’s report can be divided into three parts.  The first part of Dr Chiang’s report deals with the Plaintiff’s complaint about her swollen eyelid.  As such disability has not been previously raised, either in the pleadings or in her witness statements, the Plaintiff should not be allowed to rely on that part of the report.

9.  The second part of Dr Chiang’s report deals with the Plaintiff’s medical examination in November 2000.  During this examination, the Plaintiff complained of back pain.  According to Dr Chiang, he lost all his clinical records of the Plaintiff, but from the documents possessed by the Plaintiff, Dr Lam can only say that the provisional diagnosis in November 2000 was likely to be prolapsed lower lumbar disk.  This disability is not covered by the Plaintiff’s pleadings or witness statements.  Further, the Plaintiff only experienced such disability about 3 years after she was dismissed by the 1st Defendant.  In such circumstances, this alleged disability has no relevance to the issue of the present case.

10.  What then left in the report is about the medical examination of the Plaintiff by Dr Chiang in July 1997.  During such examination, the Plaintiff complained that she had acute right neck and shoulder pain.  The Plaintiff was referred for x-ray of the right shoulder and arm and drugs were prescribed for the Plaintiff.

11.  As I see it, this part of the report adds nothing new to the medical chits and the sick leave certificates already produced by the Plaintiff.  According to these latter documents, the Plaintiff was suffering from neck and shoulder pain in July 1997 and sick leave was recommended for the Plaintiff for certain days.  In such circumstances, it is not necessary for the Plaintiff to rely on the third part of the medical report.

12.  I understand from Mr Ng, senior counsel for the Defendants, that the Defendants are prepared to allow the Plaintiff to adduce evidence to cover the materials only included in the sick leave certificates and the medical chits.  In such case, it is not necessary for the Plaintiff to rely on the materials included in the medical report of Dr Chiang.  I therefore also refuse leave to the Plaintiff to produce the medical report by Dr Chiang.

13.  At this stage, I would also add that, taking into account the history of this case, the court should be very cautious in dealing with any late application to adduce new evidence.  The Plaintiff’s alleged cause of action occurred before the termination of her employment on 25 September 1997.  The writ was issued on 24 September 1999, one day before the expiry of the arguable limitation period.  The writ was not served until September 2000, which was close to the end of the validity of the writ.  There was then delay on the part of the Plaintiff in the exchange of witness statements and there was total inaction on the part of the Plaintiff in pursuing the action between September 2003 to September 2006.  In view of the inaction on the part of the Plaintiff, the Defendants had to issue two notices of intention to proceed on 17 February 2003 and 30 August 2006 respectively.

14.  In the various pre-trial hearings in 2007 and 2008, the Plaintiff had indicated that she did not seek to produce any expert evidence at the trial.

15.  The case was originally fixed for  trial in November 2008.  As the Plaintiff was suffering from some kind of psychological illness at that time, the trial was refixed to November this year.  Hence, in order not to cause any unfairness to the Defendants and not to delay the proceedings, the court should be very cautious in dealing with any late application by the Plaintiff to adduce new evidence at the trial.

16.  Mr Aiken, senior counsel for the Plaintiff, argues that as this is a case concerning disability discrimination, it would be grossly unfair to the Plaintiff if she is not allowed to adduce any medical evidence about her disabilities at the relevant time.  At this stage, I must emphasise that my ruling should not be construed as a denial of the Plaintiff’s application to adduce evidence to substantiate the materials included in the sick leave certificates and the medical chits.  If the Defendants dispute the medical diagnosis contained in the sick leave certificates and the medical chits, the Plaintiff may make an appropriate application to the court to call the makers of the documents to testify in the trial.  At this stage, it is simply too premature for me to deal with such kind of application at this stage.

17.  I therefore refuse the application for leave to adduce the medical reports.