Chan Man Ka Vicky v. Thomson Reuters Hong Kong Ltd

DCEO 8/2018

[2020] HKDC 771

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 8 OF 2018

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DECISION

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1.The claimant (“Chan”) complains that she has been treated and dismissed by the respondent (“TR”) on the ground of her disability in breach of the Disability Discrimination Ordinance, Cap 487 (“DDO”). Trial of liability and quantum has been directed to be split. This is Chan’s application for an order primarily to bar TR from disputing her disability or alternatively for leave to adduce medical expert evidence for the purpose of the issue of liability. TR opposes the application. By consent of the parties, the application is now disposed of on paper without oral hearing.

The dispute

2.As a matter of background, Chan’s employment started with the predecessor of TR, which was eventually transferred to TR in February 2009.  According to her, TR has been unfair in its review of her performance during the period between late December 2016 and early 2017.  Chan allegedly developed depression symptoms as a result.

3.Then came the discrimination claim.  Chan alleges that it was in early April 2017 when she was diagnosed to have depression and anxiety disorder, and was given medication and sick leave[1]. She allegedly notified TR of the diagnosis on 7 April 2017[2].  Since then, TR has allegedly discriminated against her in her treatment as an employee.  In July 2017, TR sought to demote her.  She was not given improvement opportunity.  TR eventually terminated her employment with effect from 3 October 2017[3].

4.Chan claims[4] that her depression was a disability under the DDO, which TR knew or ought to have known after such diagnosis was brought to its notice as mentioned above.  Notwithstanding that, TR discriminated against her in breach of sections 6 and 11 of the DDO[5].

5.Chan claims that as a result of the alleged unlawful treatment and termination of her employment, her depressive symptoms recurred, which necessitated treatment and medication.  She claims, amongst other relief, general damages for injury to feelings and special damages for loss of earnings and treatment expenses.

6.Regarding the background, TR denies unfairness in its performance review of Chan prior to April 2017.  Instead, TR has allegedly tried to assist Chan in rectifying her performance deficiencies.  As to the discrimination claim, TR makes no admission to the depression of Chan[6], but avers that Chan first notified a Mr Spencer of TR of the diagnosis of her depression by email on 6 July 2017 with, in support, medical certificates issued to her between April and June 2017[7]. It was also due to the sick leave that the effective date of termination of her employment was postponed to 27 October 2017.

7.TR contends that Chan’s employment was terminated by reason of the latter’s performance, and thus lawfully.  Hence its denial of the applicability of the DDO[8] and liability.  Apart from denying the claim, TR counterclaims for alleged overpayment to Chan upon the termination of her employment.

Procedural history

8.Chan commenced the present action in April 2018.

9.The parties through their legal representatives attended the case management conferences (“CMC”) before HHJ Tsui on 29 March and 26 June 2019.  During the CMC on 29 March 2019, Chan raised the issue of medical expert evidence on liability.  It is said that Judge Tsui indicated that whether Chan suffered from depression prior to 4 July 2017, ie the notice of termination of employment, is not in issue, given that this is not disputed by TR.  She is said to have remarked that it would be sufficient for Chan to rely on her medical certificates evidencing the diagnosis of her depression by then, and it would be unnecessary and in any event disproportionate to adduce medical expert evidence for such purpose.  During the CMC on 26 June 2019, Judge Tsui ordered for the split trial of liability and quantum upon the parties’ application.  The parties confirmed that no medical expert evidence would be adduced for the trial of the liability issue.

10.Now by summons filed on 17 March 2020, Chan applied for an order in the following terms:-

“(1)   Primarily, [TR], for the purpose of the present proceedings, be barred from taking issue with [Chan]’s mental disability within the meaning of the [DDO] as evidenced by the two medical reports of Dr Nip Wai dated 5 March 2018 and 27 May 2019 (“the Medical Reports”);

(2)   As the alternative to (1) above, leave be granted to [Chan] to adduce the Medical Reports as expert evidence as to liability without calling the makers thereof.”

11.Dr Nip Wai (“Dr Nip”) has been the treating doctor of Chan, and it was he who diagnosed Chan’s depression in April 2017 and issued the medical certificates in respect of that.  By the Medical Reports, Dr Nip, amongst other things, set out the basis on which he came to his diagnosis of Chan’s depression back in April 2017 and the development of her condition since the termination of her employment as well as his recommendation for her treatment. No doubt this is medical expert opinion.

12.Chan attributes the necessity of such medical expert opinion to what she describes as change of stance of TR regarding her disability prior to 4 July 2017.  The trigger, according to her, was TR’s re-amended notice of response filed in May 2018.

Stance of TR

13.Insofar as the disability of Chan before 4 July 2017 as a matter of fact is concerned, TR made no admission in the then notice of response[9].  The re-amendment of the notice of response did not alter that.

14.Insofar as notice of the diagnosis of Chan’s depression is concerned, the then existing averment was that it was on 6 July 2017 when Chan informed TR of the diagnosis of her depression together with the medical certificates issued by the doctor between April and June 2017 in support[10].  The re-amendment of the notice of response did not alter that either.

15.What TR added by the re-amendment of the notice of response in this respect was that Chan did, in private and in confidence, inform a Ms Lau of TR of the diagnosis of her depression on 7 April 2017.  Whilst Chan briefly showed Ms Lau her medical certificate then, she did not actually submit the certificate to TR.  Nor did she take sick leave except on 30 June 2017 when no medical certificate was submitted[11].

16.Chan’ s solicitors now take issue that TR is maintaining its non-admission to her depression and disability.  They felt prompted to seek clarification from TR.  By letter dated 2 March 2020, TR’s solicitors replied as follows:-

“By way of clarification, at the hearing on 26 June 2019, Judge Winnie Tsui stated that whether your client was suffering from depression when the alleged discriminatory acts occurred is not an issue. The main issue is whether your client was dismissed due to disability discrimination or performance issues. At the hearing, the parties agreed not to adduce expert evidence on the issue of liability.”

17.By letter dated 4 March 2020, TR’s solicitors added that:-

“At the hearing on 29 March 2019 … Judge Winnie Tsui further stated that the Claimant’s medical certificates were sufficient in proving her mental state and diagnosis prior to 4 July 2019. This was the Judge’s opinion which she was expressing. At no time did we say we agreed with her opinion.

At the hearing on 26 June 2019 … On the basis that medical expert evidence will only be required at the quantum stage but not at the liability stage, Judge Winnie Tsui ordered for a split trial.”

18.By letter dated 12 March 2020, TR’s solicitors, in refusing to consent to Chan’s renewed application for leave to adduce medical expert evidence, further stated that:-

“… Judge Tsui has already stated at the hearing on 29 March 2019 that there is no point in adducing expert evidence on the Claimant’s illness prior to 4 July 2017, which is not a live issue and the Claimant can rely on her medical certificates to prove that she suffered from depression before 4 July 2017…”

19.In response, Chan’s solicitors proposed on 6 April 2020:-

“…we seek your consent to dispose of our Summons in the following terms:

(1)   Leave be granted to the Claimant, at the trial of the issue of liability, to rely on the two medical certificates of Dr Nip dated 5 March 2018 and 27 May 2019 as expert evidence on her mental condition;

(2)   The attendance of Dr Nip at the trial on the issue of liability be dispensed with;

(3)   …”

20.By letter dated 7 April 2020, TR’s solicitors refused to give the requested consent, and pointed out that:-

“…By “medical certificates”, we understand that Judge Winnie Tsui was referring to the attached sick leave certificates issued by Dr Nip Wai whereby he certified that the Claimant suffered from depression during the period, as opposed to the medical reports of Dr Nip Wai dated 5 March 2018 and 27 May 2019.  H H Judge Winnie Tsui could not have meant that the Claimant could prove her mental state prior to 4 July 2017 by relying on the medical reports, given that in order to do so the Claimant would have to adduce medical expert evidence, which HH Judge Winnie Tsui stated would not be necessary.”

21.It should be added that in its questionnaire dated 30 March 2020, TR confirmed[12] that:-

“[TR] will not dispute/challenge that [Chan] suffered from depression/anxiety disorder prior to 4 July 2017, as [TR] already confirmed at the hearing on 26 June 2019 that it will not adduce medical expert evidence on the issue of liability…”

Discussion

22.All matters considered, I do not think TR has really changed its stance.  The contrary view of the matter taken by Chan’s legal representatives, in my view, stems from the lack of precision in their understanding about the key elements, and what it takes to prove those elements, for the purpose of liability in the circumstances of this case.

23.Disability, as defined by section 2 includes disorder, illness or disease that affects a person’s thought process, perception of reality, emotion or judgment or that results in disturbed behaviour.  Depression could well fall within the definition of disability for the purpose of the DDO.

24.Chan’s claim is based on TR’s discrimination against her on the ground of her depression and disability.  Chan cannot attribute any acts of TR to discrimination on such ground unless such acts occurred when TR knew about her such depression.  Indeed, Chan alleges that TR knew or ought to have known as a result of her notification of TR of the diagnosis of her depression in early April 2017.

25.In other words, for the purpose of liability, what Chan needs to establish is the very fact of the diagnosis of her depression in April 2017.  The key dispute between the parties is whether and, if yes, when Chan put TR on notice of such diagnosis as well as whether, upon notice of that, TR committed the alleged acts of discrimination against her on the ground of such disability.

26.It is never the defence of TR that the DDO does not apply, or that it is not liable to Chan, because the facts by early April 2017 did not support the doctor’s diagnosis of Chan’s depression then.  TR’s case is first, it had no knowledge about the diagnosis of Chan’s depression before 4 July 2017; and second, its treatment of Chan between April 2017 and the termination of her employment in July 2017 were in any event based on her work performance.

27.As to what might have been said in the previous CMCs, it is perhaps not helpful for anyone to have referred to whether the disability of Chan prior to 4 July 2017, as a matter of fact, is disputed or a live issue for the purpose of liability.  What is beyond doubt is that TR simply leaves it to Chan to prove the depression.  Insofar as the depression as a matter of fact is concerned, that is not within TR’s knowledge to admit.  Such stance in principle is not objectionable.  The implication of such stance, if any, may have to do with the costs of Chan having been put to such proof.

28.As to the fact of diagnosis of Chan’s depression in April 2017, Chan has the medical certificates issued by Dr Nip since then.  It is however argued on behalf of Chan that once there is no admission of a party’s contention as to fact by the other party, the former’s hands ought not to be tied in terms of the evidence that he/she intends to adduce in proof of the alleged fact.  Put in such general terms, the argument is not wrong.  References are also made by the parties to authorities in respect of the relevance and admissibility of (medical) expert evidence.  I see no actual disagreement in terms of the relevant legal principles explained in those cases.

29.However, the above principles still need to be applied in the context and circumstances of the present case.  For the purpose of liability in the present case, it is not necessary to establish the basis on which the diagnosis of Chan’s depression came about in April 2017.  Medical expert evidence in respect of that is not necessary.

The order sought

30.In view of the above discussion, the circumstances of the present case, properly understood, do not justify the requested order to bar TR from taking issue with Chan’s mental disability for the purpose of the present proceedings. TR must be allowed to take issue as to that for the purpose of quantum, which comes to be determined only if Chan succeeds on liability.  Medical expert evidence will probably become relevant and necessary at that stage.

31.For the purpose of the present application, Chan’s mental disability is said to be evidenced by the medical reports of Dr Nip dated 5 March 2018 and 27 May 2019.  However, as discussed above, what Chan needs to establish is the fact of the diagnosis of depression in April 2017.  This fact should be evidenced by the contemporaneous medical certificates issued by Dr Nip in and since April 2017.  Those are also the certificates that she allegedly disclosed to TR since April 2017.  TR has no intention of disputing such medical certificates for the purpose of liability.  It is difficult to see how TR should be expected to be bound by such medical expert opinion, which were prepared subsequent to the termination of employment of Chan in late 2017 and far beyond the scope of liability, as evidence of liability.

Conclusion and order

32.Chan’s application by summons filed on 17 March 2013 is dismissed with costs to TR.  The costs order is nisi, which will become absolute without further order, in the absence of application within 14 days to vary.  Upon the costs order becoming absolute, TR shall lodge and serve its statement of costs within 7 days, and Chan shall lodge and serve her comment, if any, within 7 days thereafter.  Upon the expiry of the deadline, this court will proceed to summarily assess on paper TR’s costs payable by Chan.

Mr Adrian Lai, instructed by Chak & Associates, for the claimant

Mr Stephenson Harwood of Stephenson Harwood, for the respondent