YUEN WAI HAN v. SOUTH ELDERLY AFFAIRS LTD

DCEO 6/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 6 OF 2001

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Assessment

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1. I have previously ruled that the Defendant had unlawfully discriminated the Plaintiff because of her pregnancy when the Defendant rescinded the contract to employ her as a supervisor of the Defendant's elderly home. I now assess damages arising out of such discrimination.

2. There are 3 heads of damages namely 1) loss of income, 2) injury to feeling and 3) punitive damages.

LOSS OF INCOME

3. The Defendant on 10/6/00 agreed to employ the Plaintiff as supervisor of its elderly home at the monthly salary of $15,000 from 18/6/00. At that time she was employed by Lok Yee Sanatorium Ltd. as a supervisor at a monthly salary of $10,000.00. On 12/6/00 the Plaintiff tendered her resignation with Lok Yee Sanatorium Ltd. with effect from 17/6/00. However after she tendered her resignation the Defendant rescinded her contract. The Plaintiff managed to stay in the employment with Lok Yee until 17/7/00. She was not able to find work until 20/11/00 earning $10,000 a month. Had her contract not been rescinded I am of the view that she could have no problem working for the Defendant at least until 17/6/01.

4. Her loss of income from 18/6/00 to 17/7/00 is : $(15,000 - 10,000) = $5,000 being the difference in income between what she could have got from the Defendant and the income she received from Lok Yee Sanatorium Ltd.

5. From 18/7/00 to 17/11/00 she was unemployed so she suffered a loss of 4 months' income i.e. $15,000 x 4 = $60,000. From 18/11/00 to 17/6/01 she earned $10,000. The difference in income for 7 months is therefore $(15,000 - 10,000) x 7 = $35,000. However because of her pregnancy she was not entitled to her salary for her 2.5 months' maternity leave i.e. 2.5 x $15,000 = $37,500.00.

6. Her total loss of income is therefore $(5,000 + 60,000 + 35,000) - $37,500 = $62,500.00.

INJURY TO FEELING

7. At that time she was pregnant, she was the only person with income and had to borrow to make ends meet. That had caused her anxiety and embarrassment. Further because of her complaint to EOC the Defendant made a report to the police which was not substantiated. Mr. Cheng Bun for the Defendant in cross examination agreed that but for the Plaintiff's complaint the Defendant would not have reported to police. It was an unfounded allegation amounting to an attack on her character. This has also inured her feeling as she had to suffer the indignation of being treated like a criminal in the police station. She was interrogated and had been cautioned.

8. The principles for deciding on the damages under this head has been neatly summarised by Judge Christie in K & ors v Secretary for Justice [2000]3 HKLRD 777 at 812 and are as follows :-

(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, 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 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 their 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.

9. In Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 Lord Justice Mummery has set out three broad bands of compensation for injuries to feelings which are as follows :-

(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.

10. I am of the view that in the present case it may be serious but it is an isolated or one-off occurrence so I assess damages for injury to feeling at $62,500.

PUNITIVE DAMAGES

11. S.76(3A)(8) of Sex Discrimination Ord. Cap. 480 states that punitive damages can be awarded.

12. Although as stated in K & ors v Secretary for Justice that feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award under injury to feelings, the act of the Defendant reporting to police that the Plaintiff obtained pecuniary advantage by deception without any justifiable ground warrants punitive damages. The report to police was malicious. It was made purely because the Plaintiff reported to EOC. The Plaintiff was arrested and put on bail. The Defendant's conduct merits punishment.

13. Although both in Ma Bik Yung v Ko Chan [1999] 2 HKLRD 263 and Yuen Sha Sha v Tse Chi Pan [1999] 2 HKLRD 28 the punitive damages is about 1/3 of the award for non-pecuniary damages, the facts are different and this is a far more serious act of the Defendant. The act merits a far higher award. I assess the punitive damages to be $30,000.

14. In the premises I assess damages at $(62,500 + 62,500 + 30,000) = $155,000.00.

15. By consent no order as to costs.