K and Others v. Secretary for Justice
Read the full judgment text of DCEO 3/1999 on BabelCite. This DCEO judgment was delivered on 27 September 2000.
1. These three claims were heard together on 27 March 2000. At the completion of the evidence on 6 April I adjourned for written submissions from both sides and these were submitted by 29 May. At the hearing I made an order that the three plaintiffs not be identified by name. In keeping with that order I refer to them in this judgment as K, Y and W respectively and the titular page of any copy of the judgment released to the public will be adapted accordingly.
Cited by 5 cases · Cites 1 case
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DCEO000003/1999 DCEO3, 4, 7/99 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINSTRATIVE REGION EQUAL OPPORTUNITIES ACTION NO. 3, 4, 7 OF 1999 ---------------
Coram: H.H. Judge Christie in Court Date of Judgmnet: 27 September 2000 ___________________ JUDGMENT ___________________ 1. These three claims were heard together on 27 March 2000. At the completion of the evidence on 6 April I adjourned for written submissions from both sides and these were submitted by 29 May. At the hearing I made an order that the three plaintiffs not be identified by name. In keeping with that order I refer to them in this judgment as K, Y and W respectively and the titular page of any copy of the judgment released to the public will be adapted accordingly. The Claims 2. Each of these three claims was commenced under s 72 of the Disability Discrimination Ordinance (DDO), seeking damages and other relief for the defendant having committed an act of discrimination against the plaintiff contrary to Part III of DDO which prohibits discrimination in employment against persons with a disability or persons with an associate with a disability. 3. The acts of discrimination complained of were the refusal of employment. K (DCEO 3/99) applied to the Fire Services Department (FSD) for a post of ambulance man in October 1997 and the application was refused on 25 March 1998. Y (DCEO 4/99) applied to FSD for a post of fireman in August 1996 and the application was refused on 14 October 1997. W (DCEO 7/99) applied to Customs and Excise Department (CED) for a post of customs officer in about May 1996. CED offered him employment on 24 April 1997 but the employment was conditional on the results of a medical examination and, in the meantime, he was employed on a day-to-day basis from 21 May 1997. He was dismissed by CED with effect from 17 July 1997. THE NATURE OF THE DISCRIMINATION The reason for refusing employment. 4. In each case the reason for withholding the offer of employment, or terminating the conditional employment, was the mental illness of a parent of the plaintiff. It is common ground that the mother of K and the mother of W suffer from schizophrenia and that the late father of Y had a mental illness which, at the time of his death, was diagnosed as schizophrenia. 5. A mental disorder is a disability in terms of the definition of "disability" in s 2(1) DDO. It may be unlawful to discriminate against a person in employment on the ground of a disability: Part III DDO. The employment in each case was refused or (in W's case) terminated on the ground of that mental disorder and the plaintiffs say the discrimination was unlawful. The defence. 6. The defendant invokes s 12(2)(i) DDO which may make lawful an otherwise unlawful discrimination in employment. Schizophrenia is a genetically influenced mental disorder and children of schizophrenics are at a markedly greater lifetime risk of developing the disorder than the general population. It was because of this increased risk that FSD and CED applied policies to exclude children of schizophrenics from admission to their employment in the interests of public safety. The defendant says that, because of the nature of that employment and the duties of the respective departments, the consequences of the risk might be disastrous, and the risk itself might be increased by the particular stresses the plaintiffs would be exposed to in this employment. Schizophrenia and Genetic Risk 7. Two world authorities on psychiatric genetics were called by the plaintiffs: Professor Peter McGuffin of the Institute of Psychiatry, Kings College of London, and Professor Irving I. Gottesman of University of Virginia, U.S.A.. 8. Professor McGuffin described schizophrenia as an illness characterised by disintegration of mental function and loss of contact with reality. He described the six main groups of symptoms: hallucinations, delusions, mood change, abnormalities of the form of speech, motor disturbance and volitional change. It is a common disorder with a lifetime incidence of about 1%, and onset usually occurs during adult life before the age of 45 years. In most cases onset is gradual, taking place over 6 months or more. It is a complex genetic disease resulting from the combined effects of many genes, and environmental factors. The professor pointed out that, even in identical twins who share 100% of genes with the one affected, the fact that the probability of becoming schizophrenic is less than 100% demonstrates that environmental factors have a role in schizophrenia and the genes alone are not sufficient to cause the disorder. "It has been estimated that, depending on which definition of the disorder is used, around 70-80% of the variation in the liability to develop schizophrenia is accounted for by genes with the remaining 20-30% of variation being explained by the environment." The environmental factors have not been identified with certainty. Studies suggest they may be exposure to infection during the pregnancy of the mother, obstetric or peri-natal complications, or other medical insults. Lifetime stressful events are associated with the onset of schizophrenia in some cases "but these are non-specific and are probably best considered as precipitants of illness rather than, in the true sense, causes of the disorder". 9. Professor Gottesman referred to a figure comparing the risk, of relatives of persons with schizophrenia, to develop schizophrenia themselves. It is based on several authoritative European studies, and shows that relatives in the first degree, who share 50% of genes with the schizophrenic, have the following risks: parents of the schizophrenic 6%, siblings 9%, and children 13%. The same figure appears in his book "Schizophrenia Genesis" and an adaptation is annexed to this judgment (Annex 1.). Do the plaintiffs have a disability? 10. In terms of s 6 DDO, discrimination may be on the ground of a disability of the person discriminated against, or it may be on the ground of the disability of an associate of the person discriminated against:
(Emphasis added). A parent is within the definition of an "associate":
11. Whereas the plaintiffs and the defendant agree that a parent of each plaintiff had a disability at the time of the discrimination, both sides also say that the plaintiffs themselves had a disability at the relevant time, and that the discrimination of each plaintiff was on the ground of his own disability. The plaintiffs say the discrimination was also on the ground of the disability of the parent; the defendant says that only in the alternative was the discrimination on the ground of the disability of the parent. 12. The parties, however, arrive at this view in different ways: the plaintiffs say that the disability of each was imputed to him under (iv) of the definition of disability; the defendant says that the disability arises under (iii) of the definition, in the form of his genetic risk of acquiring the disorder in the future. 13. The definitions in s 2(1) (emphasis added) are set out below. Paragraph (g) includes schizophrenia:
14. The above definition of "disability" is almost a duplication of the Australian model, the difference being only in the enumeration of the last four paragraphs which appear as (h) - (k) in the definition in s 4(1) of the (Cth) Disability Discrimination Act 1992. Each of these four paragraphs is descriptive of the disabilities in (a) - (g) so the Hong Kong model, while arguably an improvement, does not change the meaning. 15. The following decisions of the Australian Human Rights and Equal Opportunities Commission support both the plaintiffs' and the defendant's arguments, but without a close examination of the statutory language. 16. In Ralph v Pemar Pty Ltd (1999) HREOCA 16 the claimant's associate had a Hepatitis C virus and therefore had a disability under (c) or (d) of the definition. The claimant was at risk of becoming infected because of the association but there was no evidence that he had become infected. He alleged discrimination both on the ground of the disability of his associate and on the ground of a disability imputed to him. The Commissioner upheld the complaint on both grounds. 17. In Beattie v Maroochy Shire Council (1996) HREOCA 40 the claimant's children were refused entry to a child care center on the ground that they had a disability which may "exist in the future" in the form of any of the infectious diseases they had not been vaccinated against. The Commissioner held that "the fact that the children may at some undefined future time contract such an illness gives rise to the somewhat artificial conclusion that at the relevant time each was subject to a disability as defined by the Act". 18. There are, however, fundamental objections to each construction. "A disability imputed to a person." The objection is that the Plaintiffs' interpretation is not supported by the ordinary meaning of "impute". The primary meaning, according to the New Shorter Oxford Dictionary is:
19. Neither FSD nor CED claimed or assumed that the plaintiffs had a mental disorder. They only attributed to them an increased lifetime risk of acquiring a disorder. That attribution of genetic risk did not mean that the plaintiffs were regarded as having the disability itself at the time of the discrimination. The disability, therefore, was not "imputed" to them. "A disability that may exist in the future" 20. The objection to importing future risk of acquiring a disability into the words "may exist in the future" is that such a risk is shared by everyone. Aside from congenital disorders, which are present from birth, any person might one day, as a result of illness or other misfortune, acquire any of the disabilities set out in (a) to (g) of the definition. These include the disorder of schizophrenia. On the evidence in this case, the lifetime risk for the general population of developing schizophrenia has actually been quantified at 1%. "Disability" is a relative term. An interpretation of paragraph (iii) as a disability in itself consisting of a risk, which the whole world shares, of acquiring any of the specified disabilities is an inherent contradiction. This objection is not overcome by interpreting (iii) as words of a special type, or degree, of risk. If that meaning were intended it would have been spelt out. 21. It is not obvious, all the same, what other meaning "may exist in the future" should have. If they are simply words of future tense they appear to be unnecessary, since a future event will one day be present. Para. (i), which provides for present disabilities, also appears to be unnecessary. This suggests that (i) and (iii) are intended to explain (ii) and should be read together. On this view, (iii) refers to a future disability predicated by a past disability and the risk it refers to is the possibility of recurrence of the past disability, not the risk of acquiring any disability. I find support for this view in the Introduction to the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities promulgated by the United Nations General Assembly (Resolution 48/96, Annex, of 20 December 1993) upon which all disability discrimination legislation is based. Paragraph 17 of the Introduction provides (emphasis added):
"Transitory" does not imply recurrence but it takes the definition a step in that direction. The concepts of transitory and recurring disabilities are especially apposite to mental disorders. These disorders are not identified by biological or neurological signs but by the appearance of symptoms. If the symptoms appear for a time, then disappear before re-appearing, a past disorder will have become present again. In relation to mental disorders, then, there is reason to incorporate in the definition references to time past and future. 22. Another possible reason for the reference to future time in (iii) is that it is intended to include degenerative conditions, such as multiple sclerosis, which have not progressed to the point of malfunction but, predictably, will do so. Such progressive disorders are included in the more detailed framework of the definition of disability in the corresponding U.K. legislation (Disability Discrimination Act 1995). They do not appear to come within (e) of the Hong Kong / Australian model without the assistance of (iii) ((j) in the Australian Act). 23. In these ways, references in Hong Kong / Australian legislation to present, past and future in paragraphs (i), (ii) and (iii) / (h), (i) and (j) may relate to disabilities (e) and (g). How they could relate to the other disabilities is still not clear. Despite this difficulty, the interpretation I have arrived at is much to be preferred to the other possible interpretations because they are either otiose (future tense only), or oxymoronic (risk of acquiring any disability). In my view paragraph (iii) of the definition does not mean that a genetic risk, or any kind of risk, of acquiring any disability is a disability in itself. Insofar as the paragraph imports risk, it refers only to the risk of recurrence of a past disability. Discrimination on the ground of the disability of an associate. 24. The parents' disabilities not having been imputed to the plaintiffs, and the plaintiffs' genetic liability (if any) to develop a mental illness in the future not amounting to a disability in itself, it will follow that the discrimination in each case was not on the ground of a disability of the plaintiff under s 6(a). The discrimination was only on the ground of the disability of an associate of the plaintiff under s 6(c). The case of Y. 25. There is a dispute of fact as to whether Y's father suffered from the disorder of schizophrenia or a delusional disorder. Both disorders are within (g) of the 'disability' definition but the latter disorder does not carry an established genetic liability. The issue of which disorder the father of Y suffered from will be relevant to the issue of whether the discrimination was lawful or not, and I will return to it later. In the meantime it is enough to note that FSD discriminated against Y on the ground of his father's disability. 26. Y's father, however, died several years before Y applied to FSD for employment. Because Y's associate was no longer living at the time of discrimination it is necessary to read "associate" as "associate or former associate" to establish a discrimination under s 6(c). In Ryan v. Dennis (1998) HREOCA 36 Commissioner Innes held that an interpretation to this effect was necessary to achieve the objects of the Disability Discrimination Act. It is not an issue in this case. In his closing submission Mr Pleming for the Defendant accepted that, if the plaintiff had no disability and the discrimination was on the ground of the disability of the associate, "it makes no difference to the legal argument". The Defence in DCEO 4/99 (paragraph 4) admits that Y "is a person with an associate with a disability" within the meaning of the Ordinance. I take this to amount to an admission that the above interpretation is correct. THE LEGALITY OF THE DISCRIMINATION The statutory provisions 27. Section 11(1)(c) makes it unlawful to discriminate against a person with a disability by refusing to offer that person employment. Section 12 provides for exceptions. Where, as in these cases, the discrimination is on the ground of a disability of an associate under s 6(c), both s 11 and s 12 must be read subject to s 2(7) which provides:
Section 11, adapted in terms of s 2(7), provides (words in italics replacing those in parenthesis):
28. The defendant says the discrimination was lawful because it came within the terms of s 12(2). Section 12, similarly adapted, provides:
Inherent requirement: safety. 29. Human rights legislation in Canada exempts employment discrimination from being unlawful if it is a based on a "bona fide occupational requirement" (BFOR). The language of s 12(1) and s 12(2) DDO suggests that it is broadly based on the Canadian criterion, but split into "genuine occupational qualification" (s 12(1)) and "inherent requirement(s) of the particular employment" (s 12(2)). Whether that is so or not, it is worth noting that "requirement" in s 12(2) does not carry the same meaning as in BFOR. In s 12(2) it means the general objective by which the discriminatory standard is measured; in BFOR it means the standard itself. This difference appears to be explained by the object of s 12(2), which is to call for an individual examination of the person subjected to the discrimination, in relation to the inherent requirements of the job. The standard is the point at which the line is drawn between ability and inability of that person to "carry out the inherent requirements of the particular employment". 30. In British Columbia Government and Service Employees' Union v. Public Service Employee Relations Commission; British Columbia Human Rights Commission et al., interveners (1999) 176 DLR (4th) 1 McLachlin J. (as she then was) delivering the judgment of the Supreme Court of Canada, made a comprehensive review of previous decisions and prescribed a revised test for discriminatory standards under BFOR. At 24, 25 McLachlin J. said:
31. Because of the difference in the legislation, noted above, the test is relevant to the "genuine occupational qualification" in s 12(1) (subject to the provisions of ss 12(3) - (6) which qualify that term). It is relevant to s 12(2) only as a statement of general principle: "purpose" in step 1 corresponding to "inherent requirement" of s 12(2), and the terms "rational connection" and "reasonably necessary" in steps 1 and 3 corresponding to similar language in s 12(2)(c). This goes to show that, whereas the Canadian approach is to examine a standard in the light of a purpose, and the approach of s 12(2) DDO begins with the purpose in order to identify a standard, the two tests merely address the same issue from different directions. 32. Section 15(4) of the (Australian) Disability Discrimination Act 1992 is virtually the same as s 12(2) DDO. In X v. Commonwealth of Australia (1999) 167 ALR 529, decided on 2 December 1999, McHugh J. (without the benefit of the comparison with the Canadian legislation afforded by British Columbia the report of which appears not to have been available, having been decided on 9 September) pointed out that "requirement" refers to the purpose, not the standard. X was an enlistee in the Australian Regular Army who returned a positive HIV test. He was therefore a person with a disability. He was dismissed, and the dismissal was defended on the ground that, if he were to be wounded while deployed in combat, he would present an unacceptable risk of infection to other soldiers. His complaint came before the Human Rights and Equal Opportunity Commission. The High Court of Australia approved the interpretation of "inherent requirement" in similar legislation in Qantas Airways Ltd v. Christie (1998) 152 ALR 365 as an "essential element" of the particular employment and, by a majority, held that the Commission had erred in interpreting the phrase. McHugh J. made a detailed examination of s 15(4) of the Disability Discrimination Act 1992. After identifying safety as an essential element of all employment, he continued at 546(70):
The defendant's case, too, is that the inherent requirements are all related to safety. They are formulated as follows:
Reduced to their essence, these amount to a single requirement: safety at work. In British Columbia, at 26, McLachlin J. identified safe and efficient performance as an essential element in all occupations, and in X v. Commonwealth McHugh J observed that carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. At 537(32):
33. Where the employer is to provide services to the public, it follows that carrying out the employment without endangering the public is also an implied term of the employment. The fact that the public services provided by FSD and CED are intended to protect the public and its property in various ways, underlines the importance of the implied term. I am satisfied that safety to the public (and fellow employees) is properly identified as an inherent requirement, in terms of s 12(2), of each of the three posts the plaintiffs applied for. 34. McHugh J. reviewed the issues to be considered in determining whether a person is unable to meet the inherent requirement of safety at 539(41):
and, at 553(43), proposed these tests:
The Issues Adapting the test of McHugh J. to this case, with particular reference to the terms of s 12(2)(c), I identify the following issues: 1. Does the disability of the parent pose a real risk of harm to the plaintiff's fellow employees and members of the public? To answer that, the following questions arise:
2. If the answer to 1. is yes it will be necessary to determine whether the plaintiff could be accommodated by the employer without unjustifiable hardship. The illness of Y's father. 35. In the cases of K & W there is no dispute that the parent's disorder was schizophrenia, which does have an established genetic liability. In Y's case this is in dispute. At the time of the discrimination - the rejection of Y's application on 14 October 1997 - his medical assessment was incomplete. The Medical Examination Board's report of 18 January 1997 had noted:
36. Nevertheless Y's application was eventually rejected without finally ascertaining his father's diagnosis. FSD must have assumed that, before he died, his father had been diagnosed to have an illness of an hereditary nature. It turned out that this assumption was correct. When further enquiry was made at the request of Equal Opportunities Commission (EOC) Dr. Chan Wing Yee, on 12 June 1998, prepared a report from the late patient's file at Castle Peak Hospital: that Y's father had been an inpatient from 13 March to 21 March 1990 and was discharged at his own request with a diagnosis of paranoid schizophrenia. 37. That diagnosis is, however, challenged by the plaintiff. Professor Felice Lieh Mak, Head of the Department of Psychiatry, Hong Kong University, on the basis of her examination of the hospital records, gave her opinion that the correct diagnosis should have been delusional disorder. Delusional disorder is a comparatively rare disorder but the patient's age at onset, 47 years, which is outside the usual age for onset of schizophrenia for men, fits the age of onset for delusional disorder (mean age 40 years). The fact that Mr. Y continued to work after onset also supported her diagnosis, she said. The absence of personality change and the presence of a single prominent psychiatric symptom, a delusion not of a bizarre nature - it was a consistent delusion of being plotted against by co-workers - was also strong support, in her view, for the diagnosis of delusional disorder. She produced a table, abstracted from the Diagnostic and Statistical Manual of Mental Illness Ed. 4 (DSM-IV), and her analysis persuasively made the case for a revision of the recorded diagnosis: that the delusion was not bizarre; that auditory hallucinations were not prominent but were episodic, so there was only one prominent sympton; that function remained intact and thinking was not impaired. 38. The professor's ex post facto diagnosis was held up to close scrutiny in cross-examination. The main issue was whether the auditory hallucinations of the patient were prevalent or episodic. A diagnosis of schizophrenia requires two symptoms to be present, and it can be presumed that the doctors certifying Y's father's schizophrenia diagnosis on discharge relied on both delusions and hallucinations. The DSM-IV criteria for delusional disorder, however, allow for occasional hallucinations in addition to delusion. On this issue the hospital notes tended to support Professor Mak's conclusion that past auditory hallucinations were episodic. During the week of admission the patient consistently denied visual or auditory hallucinations and the circumstances of his admission indicated that he was unlikely to have hidden that symptom. The note made on his admission was "episodic auditory hallucinations". The history given by the family was consistent with that. 39. The two certifying doctors had the advantage of personally attending the patient. He curtailed the time available for observation, however, by discharging himself after one week, and his only previous admission had been for a night in a non-psychiatric ward of another hospital. Professor Mak's diagnosis was a differential one: tumour induced psychosis and dementia could not be excluded, in her opinion. But she thought paranoid schizophrenia was not the probable diagnosis. 40. The defendant has the burden of proving not only that there was a diagnosis of schizophrenia but also that the diagnosis was correct. The professor's argument for a revised diagnosis is convincing. The result is that the defendant has not proved that Mr. Y Senior did suffer from schizophrenia. In my view, accepting the opinion of Professor Mak, he probably suffered from a delusional disorder. Relevance of the associate's disorder. 41. For K and W, anything which tends to increase the risk to the safety of fellow employees or members of the public is relevant to their ability to carry out that inherent requirement of their particular employment. If an employee suffers onset of a mental disorder, that implies some threat to safety. If the parent's schizophrenia makes it more likely that the plaintiff, in comparison with other employees, will suffer onset himself then his genetic predisposition to acquire that disorder is relevant to the issue of safety. Discrimination against Y unlawful. 42. As for Y, no genetic liability for delusional disorder has been established. This is not to say that there is none, but the disorder is rare and no authoritative study to establish whether the disorder is a hereditary one has been undertaken. There is no evidence, therefore, that Y has a enhanced liability, above that of the general population, to acquire that disorder or any other. It follows that Y's father's delusional disorder was not relevant to Y's ability to carry out the inherent requirement of safety, and the exemption in s 12(2) DDO did not apply to the discrimination against him under s 11(1)(c). The discrimination against Y, therefore, was unlawful. Stereotyping : is it reasonable to take genetic risk into account? 43. Professor Gottesman demonstrated by reference to a figure, shown at page 48 of the Medical Bundle (a variation appears in his book "Schizophrenia Genesis" at p.92), that about 1 in 8 of the children of schizophrenics have a combined liability (i.e. genetic and non-genetic contributors) for developing schizophrenia which is actually lower than half of the general population. Whereas, at one end of the spectrum, 13% of such children will manifest clinical schizophrenia during their lifetime, a similar proportion (11.5%) at the opposite end of the spectrum are so little at risk that they are below the average liability of the general population to develop schizophrenia. K and W, before individual factors are taken into account, may be at the either end of the spectrum. FSD & CED, on the other hand, for purposes of their discriminatory refusal of employment, paid attention to their risk of being beyond the threshold for developing schizophrenia. This is a classic stereotyping of the two plaintiffs, which all anti-discrimination legislation is designed to oppose. 44. It will be going too far, however, to declare the discrimination unlawful on this ground. The table of genetic risk for developing schizophrenia is a recognised tool for psychiatrists and, at the present time, is still the best genetic information available. Provided it is used as a starting point for assessing individual risk, it is unobjectionable. It was not so used by FSD & CED in 1997, and it has been left to the plaintiffs' witnesses at this trial to demonstrate the results of individual assessments; these are discussed below. Another reason for not rejecting the tables of genetic liability as an unreasonable factor to take into account in terms of s 12(2)(c) is that they may also be the basis for detecting extreme liability to develop schizophrenia. The defendant's policy : no individual assessments of genetic risk. 45. Until 1997 both FSD and CED applied a policy of rejecting job applicants with a relative with a history of mental illness of a hereditary nature. This policy was recognised by the Medical Examination Board (MEB) which performed medical examinations for candidates for employment in the Civil Service. If the candidate had such a history he was declared unfit by the Board. 46. In December 1996 Part III of DDO came into force. Apparently in response, the policy was reviewed by the Department of Health for all disciplinary forces. A Task Force on Mental Requirement of Disciplinary Forces, convened by Dr. K.C. Yip, produced a Proposal which emphasised that "there should not be discrimination against the mentally ill" and went on to make suggestions not only in respect of applicants suspected to be suffering from a major psychotic illness, but also in respect of applicants with a family history of such illness. 47. The Task Force's Proposal is annexed to this judgment (Annex 2). It notes that the first degree relatives of persons with schizophrenia or bipolar affective disorder have an increased risk of developing the illnesses, and sets out tables to illustrate some genetic risks. It goes on to describe the first degree relative's risk, and notes that the risk "will increase substantially to over 30% if both parents have the illness." It then suggests that the current recruitment policy, that first degree relatives of applicants must be free of major psychotic illness, be relaxed. But it does not go so far as to call for an individual assessment of the applicant's genetic risk. It only requires that the family members' illness be confirmed by medical report, and that the relevant risk table be consulted. 48. The terms of the Proposal were reported to the Director of Fire Services by MEB in January 1997. The Task Force's suggestion that FSD should relax the policy was taken into account by the terms of the MEB report to FSD about K, signed by Dr. Tai Kwok-ping, Chairman, on 16 March 1998. He reported that K was "provisionally fit" for employment as ambulance man, and referred to the fact of the mother's schizophrenia, that K himself was free of mental illness, and that the estimated life time risk of developing the same disease as his mother was 12.3%. It is clear, however, that FSD made no change to its policy in response to the Task Force's suggestion and it rejected K on the ground of his mother's illness. 49. In the meantime, on 3 July 1997, the former Chairman of MEB (Dr. Kan) simply declared that W was "unfit" for employment as a customs officer because of "family history of mental illness of hereditary nature". There is no evidence that the Task Force's Proposal had ever been shown to CED. As far as W's application was concerned, he was simply rejected under the old policy. 50. In neither case was the applicant's genetic liability to develop the same illness as his mother individually assessed. Individual assessment of genetic risk. 51. It is not possible to make a precise prediction of individualised risks for schizophrenia. This is currently possible only in single gene disorders, which are rare. Schizophrenia results from the combined effect of many genes, and environmental factors. Professors McGuffin and Gottesman reviewed two other methods of predicting the risk in vulnerable individuals: the empirical risk prediction, and the multi-factorial computerised risk model. 52. The former method examines the severity of illness in the sick parent, according to the results of an extensive family study of Professor Kallmann (1938) in Germany. The risk factor of a refined version of this table produces an offspring risk of 8.5% where the parent's diagnosis is paranoid schizophrenia. K's mother had this diagnosis so, as a result of this method of prediction, his genetic risk is reduced from the 12.3% attributed to him for the purpose of the discrimination, to 8.5%. W's mother's diagnosis was a different category - undifferentiated schizophrenia - which, under Kallman's (refined) table, produced an offspring risk of 11.9%. 53. Under the multifactorial computerised risk model (Smith, 1971; Gottesman and Shields, 1982) other members of the pedigree in addition to the ill parent are taken into account. In this way healthy members in the pedigree reduce the risk, and sick relatives increase it. Professor Gottesman's view was that, in principle, this method was more accurate. Applying this procedure Professor Gottesman arrived at risks of 6.6% for both K and W. 54. These risks are further reduced by making adjustments for the ages of each plaintiff at the respective times of discrimination. Because each had lived through part of the onset period without developing the disorder, they had "used up" part of their total risk. The age corrected risks were 5.4% for each. 55. I accept Professor Gottesman's evidence that the multifactorial model is inherently the more reliable guide. It is also conservative, because an average age of onset of 27 was used, drawing from an ongoing Beijing study. Under this model the risk predictions are reduced to less than half of the risk assumed for the purpose of the discrimination. It should be noted, however, that the risk for the general population against which the plaintiffs' risks are compared, matched for age, is also reduced from 1% to 0.8%. The following table shows the final result of Professor Gottesman's best estimates of individual risks under each method, for K and W, with age corrections based on age at the time of discrimination:
56. The individual assessments conducted by the plaintiffs' team of professors did not end there. In September 1999 Professor Mak examined each plaintiff in a recognised form of semi-structured interview. The examination showed no evidence of psychiatric symptoms and no developmental risk markers in either case. The recognisable prodromal (precursor) symptoms that are a warning sign of schizophrenia onset may extend over a period of years. In a recent study at Beijing Hui Long Gun Hospital, specially noted by Professor Gottesman and Professor McGuffin in evidence, a group of 164 schizophrenic Chinese patients were found to have, on average, psychiatric symptoms other than positive symptoms for 100 weeks prior to psychiatric treatment; and positive symptoms (in males) for 70.2 weeks. 57. The significance of Professor Mak's examinations of K and W, when considered with the usual duration of prodromal signs, was, as explained by Professor Gottesman, that they were likely to be towards the safe end of the spectrum containing their adjusted average risk of 5.4%. It is not possible to quantify how much this factor alters the risk. Accepting the evidence of the expert witnesses, however, I am satisfied that the individual risk assessment of each plaintiff should be well below 5%. The homicide at Aberdeen Police Station. 58. On 1 November 1997, after the job applications of Y and W had been refused and while K's application was still pending, a tragic event occurred at the Aberdeen Police Station. A police officer acting under a delusion that a suspect, detained at the station and under his guard, was a ghost and about to attack him, drew his service revolver and shot the suspect, killing him. The officer was soon afterwards diagnosed as schizophrenic. The first signs of onset, which were apparent to his family but not reported by them, had been present for only a few weeks. 59. The case was first referred to by Professor Mak when she described twelve cases of schizophrenia diagnosed in the disciplinary forces (including Police) since 1989. This was the only case in which violence, or any mishap, was reported. At the request of the defendant the medical reports used at the officer's trial in the Court of First Instance were produced to me. It emerged that in May 1994 he had had a psychotic episode, suffering a similar delusion, following the suicide of a colleague. He was seen at first by a private psychiatrist who made a differential diagnosis of schizophreniform disorder vs. brief reactive psychosis vs. major depressive disorder with psychotic features. He was followed up by the Police Force psychologist who made a diagnosis of brief reactive psychosis. In January 1995, a medical board was convened. It noted the officer's rapid recovery by that time, and agreed on the diagnosis of brief reactive psychosis. This illness generally carries a favourable outcome compared with other forms of psychotic illness. Schizophreniform disorder, however, will be diagnosed as schizophrenia if symptoms continue after 6 months. 60. The Medical Examination Board directed that he should be observed for 2 years before he was allowed access to a firearm. Dr. Mak said this meant that the Board intended that he would be further examined by its members (psychiatrists), after 2 years, and before he was given access to a firearm again. In the event, this was not done and the permission to be armed was given in November on the initiative of the Force psychologist, without further reference to the Board, in consultation with the officer's Commanding Officer. He had been seen regularly by the psychologist, who continued to follow up. He was last seen in August, and spoken to on the phone on 17 October 1997. 61. Four psychiatrists reported to the Court of First Instance. Two were of the opinion that the May 1994 illness was probably the onset of the schizophrenia and two offered no opinion on the earlier diagnosis. Professor Mak's opinion was that the correct original diagnosis was either brief reactive psychosis if the recovery was within one month, or schizophreniform psychosis if the recovery came within a longer period. He was fully recovered within 3 months and in either case, she thought, the illness was not schizophrenia in 1994. If this view is correct the schizophrenia of 1997 was a first onset, an acute onset occurring over several weeks. 62. There are aspects of the case capable of supporting almost every part of the defendant's argument in this case: Six months previously a sibling had been diagnosed as schizophrenic. The onset of the officer's illness (if it was onset, and not relapse) was acute. There were no prodromal warning signs noticed by work colleagues. Neither he nor his family reported his delusions to his employer. He later attributed the onset of his illness to pressure at work. There was a violent outcome with a disastrous result. As the relevant issues are discussed below, I will refer again to this case ("the Aberdeen case"). Stress in the employment. 63. Mr Mak Kwai Pui, Chief Ambulance Officer, FSD, described the particular work of ambulance men. They work as a crew, including drivers, for attending calls for rescue service and close teamwork is essential. They must be able to provide emergency treatment to the injured or sick; this includes resuscitation, control of bleeding, and fracture treatment. They are required to attend to the emotional reactions of patients. They are exposed to distressing scenes of injury and are under strict time constraints in emergencies. The work is usually in the eyes of the public or the media, creating further pressure. They may experience serious traumatic stress when attempts to save life are unsuccessful. 64. Mr. Ho Siu Chung, Acting Senior Superintendent, CED, gave evidence of the stresses and dangers encountered in the work of a customs officer. The service is a uniformed disciplinary force with a variety of law enforcement tasks on land and at sea, including surveillance, raids on premises and arrests of dangerous criminals; they may be required to engage in high-speed pursuits; and to undertake searches for contraband in confined spaces which are often uncomfortable and dangerous. The officers are trained in the use of firearms and are required to carry them on most operations, and to be prepared to use them if necessary. Officers are required to work in teams in stressful situations and they must have confidence in each other. Any mental disturbance or instability in the course of work may cause harm to members of the public, to colleagues, and the officer concerned. If W were employed Mr. Ho would not allow him to carry firearms and would not have the confidence to assign him to operational duties. Does work-related stress increase the risk? 65. There is no evidence, Professor McGuffin said, that the above occupations of the plaintiffs are, in any way, more often associated with the increased risk of developing schizophrenia than any other occupation; and no evidence that stresses specifically associated with any occupation increase the risk of developing schizophrenia. Stressful events, which may or may not be related to employment, are associated with the onset of schizophrenia in some cases but these, he said, are non-specific and best considered as precipitants of illness rather than a cause. That is to say, they bring forward the onset of an illness which will happen anyway. And this is more likely to be true of relapse, rather than onset, in the opinion of both him and Professor Gottesman. 66. In support, they referred to research done on the wartime experiences of men (Ginzberg et al., 1959, and Wagner, 1946). The experiences of military and civilian populations, in times of war, have not produced a greater number of schizophrenics although these traumas have resulted in a marked increase in depression and anxiety reactions, and post traumatic stress disorders. 67. Professor McGuffin was questioned extensively about the association between stress and schizophrenia, but was adamant that stressful occupations such as custom officers and ambulance men do not increase the risk of schizophrenia. Not only does the available research point to the conclusion that work stress is not a contributing cause of schizophrenia, the idea was contrary to his own experience. These were his concluding words on the topic:
68. The same applied to customs officers, he added. There is no evidence to support the finding that, if K were employed as an ambulance man, the stress of the work would increase his risk of developing schizophrenia. I make the same finding in respect of W and the work of a customs officer. Consequences of onset : dangerousness. 69. Violence is not one of the symptoms of schizophrenia. As for the incidence of violence among schizophrenics, the expert witnesses referred to the following research:
70. Professor Gottesman's view based on these, and similar, studies was that men suffering from schizophrenia do not present an appreciable source of violence. There is a slight excess of violence committed by schizophrenics compared to non-schizophrenics, and only a small amount of violent acts are committed by schizophrenics. Dr. Taylor's view, adopted by the expert witnesses in this case, was that "the best predictor of violence is previous violence". The plaintiffs, of course, have no record of violence. 71. This case is about the threat posed to safety at work arising from an employee experiencing onset of schizophrenia. Any threat which might arise from a person whose schizophrenia has already been diagnosed, or even suspected, is not relevant to the main issue. The above studies all relate to established diagnoses and there appear to be no studies of onset of schizophrenia with a violent outcome. There is no reason to think that the rate of violence will be higher at onset; it may well be lower. 72. Apart from the Aberdeen case, no evidence has been produced of any violent episode arising in any of the disciplinary forces of Hong Kong at the hands of an employee suffering onset of schizophrenia. There is a division of psychiatric opinion as to whether that was a case of relapse of a previously mis-diagnosed schizophrenic illness, or a first acute onset of schizophrenia, but I think it right to accept the view of the plaintiff's own witness, Professor Mak, that it was the latter. That case does not put in doubt the statistical evidence of low incidence of violence among schizophrenics, but it does draw attention to the possibility of an extreme consequence of the risk if it is realised, which must be weighed with the degree of risk. 73. The Aberdeen case also draws attention to the question of unpredictability of onset and consequences, due especially to the possibility of acute onset, and the possibility of deliberate hiding of symptons if there is insight. These two features may have both been present in the Aberdeen case: he apparently suffered an acute onset of a delusion which, as a result of his previous illness and the treatment for it, he should have recognised as a psychotic sympton. 74. Acute onset, however, is unusual. Professor McGuffin referred to a very recent study of familial cases of schizophrenia in the United Kingdom, known as the Cardiff Sib-pair study (Williams et al. 1999). Only 12% of the cases were acute onset, taking place over days or weeks. 75. Dangerousness arising from the onset of the disorder does not only consist of the risk of a violent act during onset by the person affected. Another kind of risk is that of failure to carry out an instruction, or otherwise to perform at work. Such "employee failure" may be a threat to safety, as has been recognised by a number of Canadian cases, notably Ontario Human Rights Commission v. Borough of Etobicoke (1982)132 DLR (3d) 14. Given the low incidence (the Aberdeen case notwithstanding) of violence among schizophrenics, this kind of risk is probably more significant. Measurement of the risk. 76. The necessary causal connection between the disability (which in this case is the disability of each associate), and the inability of the person discriminated against (K and W) to meet the inherent requirement, was considered by Gummow and Hayne JJ in X v Commonwealth (supra) at 552 (101):
77. Because schizophrenia is a polygenic multi-factorial illness, the disability of the associate cannot be the sole cause of any inability to meet the requirement of safety. The transmission of the relevant genes from the parent to the plaintiff is a contribution to the cause rather than the cause itself. This is because any such illness the child acquires would be caused be a combination of genes and unknown environmental factors, just as the parent's illness was caused by such a combination. This is taken into account, however, by the risk ratio (13%) shown in the tables. 78. The cause will be established, in each case, if the plaintiff's genetic predisposition to acquire the same disorder as the associate presents a "real" risk to the safety of the public or fellow employees. Somehow, the risk is to be measured. In the cases of K and W, their age-corrected individual risks to develop schizophrenia have been established by Professor Gottesman under the multifactorial modern model to be 5.4% in each case, before taking into account the results of Professor Mak's examinations. Making the best assessment I can for the absence of prodromal signs and other indicators of risk, I reduce their assessments of individual risk to 4%. This compares with a similarly age-corrected assessment for males in the general population of 0.8%. On this reckoning, the risks of K and W to develop schizophrenia are five times greater than that of the same age group in the general population. 79. If onset of schizophrenia occurs, however, it does not follow that harm will always be caused to the public or to other employees. In the great majority of onsets no harm will ensue. It is only those onsets in which something goes wrong that the calculation of risk to safety is concerned with. The only relevant data available is Professor Mak's review of 12 cases of schizophrenia in disciplinary forces since 1989, which include the Aberdeen case. One of those 12 cases should be excluded as a doubtful diagnosis and, on the basis of that crude data, and to make the calculation simple, I assess the likelihood of a bad consequence of onset to be 1 in 10. 80. There are two reasons, however, why a risk factor of 1 in 10 may seriously over-state the risk. In terms of civil service guidelines each department must monitor employees suspected of a mental illness. The following is extracted from a letter of 9 April 1999 from CED to EOC (representing W):
81. It follows that the duration of the period for which the risk of harmful result of onset is to be assessed does not necessarily extend until the time of diagnosis. It will stop earlier if an illness is suspected because, from that point on, the risk should be removed by the monitoring. 82. The other reason is that the Aberdeen case should probably not be counted as a case of harmful consequence arising during onset. Although I have accepted Professor Mak's view that it was a case of onset and not relapse it was also a case, whatever was the correct diagnosis of the 1994 psychosis, which was badly handled by the employer after that first illness. If the officer had been re-examined by the MEB after two years, as the board intended, the chances were that he would not have been permitted to carry a firearm again in 1997, or at all. Instead the decision was left to an over-worked Force psychologist - one of three in a strength of about 30,000 - and a commanding officer. 83. Applying, however, the risk of harmful consequence of onset of 1 in 10 to the plaintiffs' genetic risk of onset, a percentage of a percentage, 10% of 4%, the risk to safety posed by the employment of K or W would be 0.4%, or 1 in 250. This appears to be a very low risk, but it is still 5 times greater than that of the general population (matched for age). The difficulty lies in deciding what to make of an assessment of a bare degree of increased risk without a reference point to judge it by. Comparative risk analysis. 84. A way of addressing this problem was proposed by Gibson J of the Federal Court of Canada in Canada (Attorney General) v Thwaites (1994) FC 38. At page 10 of the Lexis report (emphasis added):
85. An obvious tolerable risk available for comparison in this case is that acknowledged by the existing policy, which excludes first degree relatives of schizophrenics but accepts second degree relatives. The figure at Annex 1. shows, within relatives of the second degree, a risk of 6% for half siblings. This is higher than the Gottesman 5.4% individualised assessment for K and W, before absence of prodromal signs is taken into account. 86. A comparative risk analysis can be made, without reference to the individualised risks of the plaintiffs, by considering the risk taken by FSD and CED in not having a policy of monitoring its employees for any incidence of familial schizophrenia after they are recruited. For example, if such a policy existed, the officer at Aberdeen Police Station would have been under a duty to report the fact of his sibling's diagnosis. Obviously, such an intrusive policy would be unpopular, especially as compliance would invite dismissal. But the fact remains that FSD and CED accept, for the already recruited, the risk that they do not accept for would-be recruits. 87. The comparative risk analysis also applies, indirectly, to a consideration of the views of the defendant's Task Force assigned to review mental health recruitment policy for the disciplinary forces (Annex 2.). Its advice was to relax the policy. In context, the suggestion was that the defendant's disciplinary departments discontinue the policy of excluding first degree relatives of schizophrenics and move to a higher degree of risk severity. Unless that is what the Task Force intended, its suggestion to "relax" the policy was without meaning. Significantly, the proposal drew attention to a higher level of risk severity: "children (both parents schizophrenic) 36.6%". I have already observed that the Task Force made no recommendation that individual assessments be carried out, so it was not suggesting that the policy be relaxed in that manner. Nor do I think that the Task Force intended that a distinction be made within first degree relatives by relaxing the policy in favour of siblings of a schizophrenic who carry a risk of about 8.5%. But if that was the intention, then K and W, both with age corrected risks of 5.4% on the multifactorial modern model of individual assessment (without taking into account absence of prodromal signs), would not be included in the suggested revised discrimination. (The lowest risk assessment - parents of schizophrenics, 4.4% - must be ignored in view of the age of onset (from 16) and the age of recruitment). 88. The Task Force's proposal shows, in my view, that the medical advisers appointed by the defendant to advise on the adequacy of the discriminatory policy were of the opinion that the bare risk, of first degree relatives of schizophrenics, to develop schizophrenia themselves is an acceptable level of risk for employees of disciplinary forces. Magnitude of risk with and without the discrimination. 89. Another form of comparison is the analysis used by the Administrative Appeals Tribunal of Australia in Hall Matthew v. Victorian Amateur Football Association (unrep), Anti-Discrimination List No. 1998/153, 23 April 1999. As in X v. The Commonwealth, the issue was the risk posed by an HIV carrier bleeding but on the field of play, not combat. There was evidence available of the prevalence of HIV among the class of Australian Rules players of which the applicant was a member, and there was also epidemiological evidence of the rate of bleeding injuries in that code of play. In deciding whether the discrimination against the applicant on the ground of his HIV positive status was "reasonably necessary to protect the health or safety" of other players, under s 80 of the Equal Opportunity Act 1995, one of the questions posed by the Tribunal (Kellam J and two others) was: what difference would it make to the magnitude of the risk if the discrimination of the applicant was permitted? The Tribunal concluded that even if the applicant was removed from the equation, the class of persons who were at risk by reason of exposure to him, would still remain at risk to the same degree ( a broad range from 1:6000 to 1:125,000,000) by exposure to others who also suffered HIV. 90. Professor Gottesman emphasised, in relation to the tables of risks of developing schizophrenia (Annex 1), that some 89% of all persons suffering from clinically obvious cases of schizophrenia, will have neither parent ill with schizophrenia. Later, comparing the average risk of the group with one schizophrenic parent, with the general population, he explained why no attempt was made to subtract the vulnerable group from the general population group for the purposes of the comparison. Even if they could be subtracted, he said, "they would amount to such a trivial contribution to the general population as to not have any effect on this statistic that's worth bothering about." 91. It seems to me that this observation applies the kind of comparison made in Hall: if persons with a schizophrenic parent, such as K & W, are excluded from the work forces of FSD and CED, the reduction in the general risk of employees developing schizophrenia is trivial. The argument goes further, because the Hall comparison was made to establish what difference one vulnerable individual would make. That individual approach was required by the "direct discrimination" provisons of the relevant Act. Section 12(2) DDO also requires an individual examination. On that assessment the reductions made to the general risks of FSD employees, or CED employees, developing schizophrenia by excluding K, or W, are even less significant. 92. Even an insignificant risk may be important if the consequences of the risk being realised are extremely serious, and the consequences of the officer's illness in the Aberdeen case were disastrous. They might have been prevented, however, had the supervision of that officer's progress after his earlier psychosis been better managed by the employer. And, as I have noted, these consequences were only a possible outcome if the development of the illness; the more likely outcome would be an uneventful diagnosis or "employee failure" on a scale much less harmful than the Aberdeen case. Discrimination against K and W unlawful 93. On the one hand, the worst possible consequence of an acute onset of schizophrenia may be as serious as homicide, as the Aberdeen case shows; and the risk of K or W to develop schizophrenia is about five times greater than other persons of their age. On the other hand the employment of the Aberdeen case officer would not have been prevented by the same discrimination, and the homicide might not have occurred if the monitoring of him had been better handled; as for the degree of risk of developing schizophrenia, degrees of risk comparable to K's and W's individualised risks are already tolerated by FSD and CED, and the magnitude of the risk to safety at FSD presented by the possibility of an employee's onset of schizophrenia would not be significantly increased by the employment of K, just as the magnitude of the same kind of risk at CED would not be significantly increased by the employment of W. 94. For these reasons the degree of risk of K's and W's genetic liability to develop the disease their parent suffers from, when weighed with the possible consequences if that risk occurs, do not present a real risk to safety at either place of employment, so they are each able to carry out that requirement of the work. It follows that the ground for exemption, under s 12(2)(i), from the provisions of s 11(1)(c) and s 11(2)(c) is not made out in respect of K or W and their discrimination remains unlawful. It is not necessary to go on to answer issue no. 2 by determining whether there could be an accommodation under s 12(2)(ii). 95. I was invited by the defendant, in the event of this finding, to suggest how an employer might lawfully screen job applicants for vulnerability to schizophrenia, if it wishes to do so. In the light of the results of the individual assessments of genetic risk undertaken for the plaintiffs in this case, it is unlikely that the schizophrenia of any first degree relative of a job applicant would pose a real risk to the applicant's ability to meet the inherent requirement of safety at work. If, therefore, the medical examination made for the purpose of the application discloses no more than that degree of familial schizophrenia, further inquiry is unwarranted. This is in keeping with the existing Task Force proposal. 96. If, however, the risk severity appears to be much higher than it is for a first degree relative, for example, where there is more than one close relative with the diagnosis, the s 12(2) alarm bell may ring. But it will still be unlawful to discriminate against the applicant on the ground alone of the disability of those associates, even if a high degree of risk in the applicant is disclosed by the risk severity tables. An individual assessment of the applicant's genetic risk must be made. This assessment may include an examination to detect prodromal signs, unless it is thought the results of job interviews already exclude that possibility. It must include the kind of analysis of individual risk made for the plaintiffs by Professor Gottesman, even if that involves some trouble and expense due to a lack of local expertise in genetic psychiatry, because the employer has a duty under s 12(2) to make the best possible scientific inquiry into the individual's vulnerability. 97. If that assessment still discloses an extreme genetic liability to develop schizophrenia, the employer will consider whether it poses a real risk to safety. It should not assume that the risk is increased by stress associated with the employment. It should take into account the possible consequences if the risk is realised and the context of the job including any system in place for detecting onset of mental illness in employees. RELIEF AND QUANTUM 98. Section 72(1)(a) and s 72(3) DDO provide that a claim of unlawful discrimination in employment shall proceed in the District Court as a claim in tort according to the remedies obtainable in the Court of First Instance. Section 72 (4) provides:-
Each plaintiff sought the same relief:
If orders were to be made for the employment of the plaintiffs they would not incur future losses. These two claims were therefore in the alternative. At the commencement of the trial each plaintiff elected to abandon his claim under s 72(4)(c) and to pursue his claim for damages for future losses. Declaratory and Injunctive Relief 99. Counsel points out that there is no evidence to suggest that the departments will not honour the Court's rulings, and I accept this. I think, however, that a declaration and an order in terms of s 73(4)(a) are justified because s 73(4)(a) is for the benefit of persons other than the plaintiffs who are or would otherwise be affected by the defendant's unlawful discriminatory policy, as well as for the benefit of the plaintiffs themselves. Those other persons should know that they have the protection of a formal order. 100. There will be declarations that FSD committed acts of unlawful discrimination contrary to s 11(1)(c) DDO on 25 March 1998 by refusing to offer K employment as an ambulance man on the ground of the disability of his associate; and on 14 October 1997 by refusing to offer Y employment as a fireman on the same ground; and that CED committed an act of unlawful discrimination contrary to s 11(2)(c) on 17 July 1997 by dismissing W from employment as a customs officer on the same ground; and there will be orders that FSD and CED shall not repeat such lawful acts. Damages for Injury to Feelings 101. FSD and CED persisted in their discriminatory recruiting policy when part III DDO took effect in December 1996 despite the suggestion of the Task Force on Mental Requirement of Disciplinary Forces that they should relax the policy. The departments so persisted, it is true, for the sake of safety. At the same time they must have known that the ground of discrimination, family history of mental illness, was an extremely sensitive topic bound to cause injury to the feelings of those who were subjected to the policy and would seek to oppose it. The departments withheld the reason for the rejections and this non-disclosure of the ground of discrimination served, at first, to mitigate that injury but the very avoidance of disclosure only served to exacerbate the distress when, inevitably, the reason was discovered. 102. When K learnt of his rejection, without a reason given, he was surprised. By chance, he learnt the reason from his mother's doctor when he accompanied her on a medical appointment. He was disappointed and upset and felt unfairly treated. He has been left with these feelings since and, like the other plaintiffs, exposed to the risk of publicity and the associated stigma. After he commenced his action he received the attention of the Press. They came to his home and he had to take steps to avoid them and the attention of his neighbours. He has been concerned about the possibility that those he comes into contact with at work will learn of his case, to his own detriment. 103. The discrimination against Y was drawn out over 11 months from the time of his application in November 1996. The delay was unnecessary and occurred, apparently, because the department did not know how to handle the incomplete investigation into the medical records of his late father. (It did not know that, as EOC was to establish in 1998, a medical report could have been obtained without a breach of privacy legislation). It eventually rejected Y's application in October 1997 guessing, correctly, that the father's diagnosis was relevant to its policy. Y found out the reason for his rejection when he inquired of the doctor attending his Medical Examination Board interview for his present employment. He was unable to explain the delay in his application, and then the rejection, to his friends and acquaintances and has had to deal with the embarrassment arising from the reason, when it became known. 104. W was employed as a trainee subject to the result of his medical examination, even although he had attended the medical examination a month before. This procedure meant that his distress was to be all the more acute when, to give effect to the discriminatory policy, he was dismissed after seven weeks training at the CED Training School. On 10 July 1997 he was told that his performance was alright but he had failed to pass the medical examination and he was asked to leave a week later. W had been asked about his mother's illness at the medical examination and her consent had been obtained to get her medical report. He therefore asked whether the termination of his employment was related to his mother's illness. The Assistant Superintendent answered that he was not sure. He was shown a letter saying that he failed to pass the recruitment formalities. W's statement goes on:
105. W's humiliation was extended over the next seven days while he worked out his notice. His training stopped, and he was given menial work to do alone. 106. In all three cases the injury to feelings has been prolonged by the defence of the discrimination and refusal to mediate. I think it right to take this into account. The defendant is entitled to have its policy tested in Court, but this has been at the cost of the plaintiffs' extended discomfiture. 107. The principles to be applied in the assessment of awards of damages for injury to feelings were reviewed by the Employment Appeal Tribunal (EAT) (Smith J.) in Prison Service & Ors. v. Johnson (1997) ICR 275, 283:
108. Judge Wong sitting in the Equal Opportunities Jurisdiction of this Court has made two awards of damages for injury to feelings arising from harassment and discrimination, although not discrimination in employment. In Yuen Sha Sha v. Tse Chi Pan (1999) 1HKL 731 she awarded $50,000 under this head to a plaintiff who had been sexually harassed over 4-5 months (although without her knowledge) by the covert camcorder taping of her private room. In Ma Bik Yung v. Ko Chuen (1999) 1 HKC 714, for a single incident of abusive and insulting behaviour by a taxi driver which constituted both discrimination and harassment of a disabled plaintiff, she awarded $15,000. On appeal the amount of the award, on that basis, was approved: CACV 267/99, 9 February 2000, at p.9. 109. In Johnson an award of ￡20,000 was upheld for injury to feelings for racial harassment and discrimination over a period of 18 months. 110. In the subject cases the plaintiffs have not been subjected to harassment of any kind. In Racial Equality Council Cleveland v. Widlinski (1998) 1CR 1124 injury to feelings arising from a non-promotion on racial grounds was compensated by an award of ￡10,000. The EAT found the award to be proper although "slightly on the high side". 111. I assess the damages under this head as follows:-
Pre-trial loss of earnings These are agreed, with interest, at:-
Future loss 112. Damages are recoverable for the statutory tort of discrimination pursuant to s 72 DDO. Because this Court is empowered to grant relief under s 72(3) in the same way as would be obtainable in the Court of First Instance there is no limit to the amount of damages the Court may award. For the assessment of the amount of damages the principle "restitutio in integrum" applies and, as best as money can do it, the plaintiffs must be put into the position they would have been but for the unlawful discrimination of the defendant : Ministry of Defence v. Cannock (1994) I.R.C. 918, 935H. 113. The plaintiffs' claims for damages for future losses are based on the difference between the pay of the subject positions and the lesser pay of the jobs they have taken following the acts of discrimination; and the loss of pension rights and housing benefits which attach to employment in FSD and CED. Mitigation of Loss 114. Following the plaintiff's elections to abandon the remedy of employment in favour of damages for future loss, the defendant made offers in writing to each plaintiff in these terms:
115. The offers were not accepted. The defendant's argument is that the plaintiffs should have accepted the offers in fulfilment of their duty to mitigate their future losses. 116. Plaintiffs' counsel point out that the defendant's offer amounts to no more than a declaration of the respective department's intention to offer the employment if the discrimination is held to be unlawful. Had a plaintiff accepted the offer directed to him and then, after judgment, fulfilled the conditions attaching to it he would have been in almost the same position as he would be had he reversed his election and sought the remedy of an order for employment. (I say "almost" because he would be without the benefit of a Court order although, no doubt, he could rely on the department to observe the agreement). 117. That is the first point to be made about the offer: it amounts to a complaint that the plaintiff had a duty to choose the remedy of an order for employment because that would have mitigated (in fact, removed entirely) his future loss. This raises the question whether a plaintiff has a duty to act reasonably towards the defendant in his choice of remedy. The defendant argues that the Court's jurisdiction to make this order does not affect the plaintiffs' duty to mitigate, otherwise the point has not been identified as an issue in the written submissions. The plaintiffs are content to submit that it was reasonable not to accept the offer (or not to elect to seek employment orders, if one looks at it this way), and I will go on to consider that issue. 118. The underlying reason for the plaintiffs' decisions not to seek an order for, or accept the defendant's offer of, employment in the post they originally applied for is delay. In the two years and more since the rejections each plaintiff has established himself in other employment and, to his credit, remained in it and begun to develop a career. The other main reason they gave was a lack of confidence in the department following the initial rejections for a discriminatory reason and the persistent refusal by the departments to reconsider their applications in the face of their complaints and these proceedings. 119. K's application for appointment as ambulance man was rejected on 25 March 1998. In April he began work as an Estate Assistant, and was promoted to Assistant Estate Officer on 1 October 1999. Although his election not to pursue an order for employment was announced at trial and not before, in fact he lost interest in pursuing that remedy when Fire Services Department refused to mediate in 1998. By this time his original wish to join Fire Services Department as an ambulance man had lost meaning, he said. He is concerned now, in addition, that any bad feelings generated by his prosecution of this case would count against him in a career in FSD. 120. Y's application to FSD for a fireman post was rejected on 14 October 1997. He had no educational qualifications beyond Form 4 and he found work as a life guard at private and public swimming pools before securing his present position, in May 1998, as Life Guard (Artisan - Swimming Pool) with the Leisure and Cultural Services Department. When he learnt (after long delay) that his application was rejected he made three further applications for the same post in January and September 1998 and in March 1999. At that stage he was willing to abandon his new career in favour of his original choice of fireman, but no longer. FSD had refused to mediate and he was obliged to commence this action. He felt he had been let down and was disheartened by their manner of handling his case. To be a fireman now would mean starting a career, nearly 3 years postponed, ""from square one". 121. W's conditional employment at the CED Training School was terminated on 17 July 1997. His education is also limited. He quickly found temporary work in a warehouse and in September 1997 began a career as aircraft mechanic first with an airline and, since July 1998, with an aircraft engineering company on better terms. He is an Assistant Mechanic. The job includes shift work. He has also had lost confidence in Customs & Excise Department, but not to the same degree as the other plaintiffs, for he is willing to consider re-applying for the post if his confidence in the department improved. Otherwise, he would not re-apply because he is in a stable career. Standard of reasonableness 122. The plaintiffs are required to act with the defendant's as well as their own interests in mind, but are only required to act reasonably and the standard of reasonableness is not high in view of the fact that the defendant is a wrongdoer - McGregor on Damages 16 ed. Para. 322, citing Lord Macmillan's speech in Banco de Portugal v. Waterlow (1932) A.C. 452, 506:
123. In Fyfe v. Scientific Furnishings Ltd. (1989) ICR 648, 652 Wood J., after citing the above passage and other authorities, added:
124. In A.G. v Chun Yat-nam (1995) 1 HKLR 390 the Court of Appeal held, in an appeal against an assessment of damages for personal injury suffered by a police officer in the course of training, that it was reasonable for him to decline an offer of continued employment and elect to retire on medical grounds even although his retirement caused considerable future loss of earnings. This case is to be distinguished, however, because the respondent's ability to work was impaired by the injury. 125. The defendant's case, with respect to all three plaintiffs, is that their anxiety about how the departments would treat them is unwarranted. It is only speculation that the persons responsible for supervising the plaintiffs would continue to discriminate against them in some way, or be prejudiced against them. I accept that. FSD and CED, as responsible Government departments, could safely be relied on to ensure that no prejudice against a plaintiff will arise in the event of their appointment. It does not follow, however, that the plaintiffs' lack of confidence in the departments is unreasonable provided I am satisfied, as I am in each case, that it is genuine. Mutual confidence in an employment relationship is of fundamental importance and is one reason why the remedy of specific performance is generally not available to enforce a contract for service. It is not enough, now, to offer the employment to the plaintiffs; it is also necessary to gain their confidence. After the rejections of their applications on a discriminatory ground, refusal to mediate, and a prolonged defence of the discrimination it is not surprising that the plaintiffs have reservations about taking the employment the defendant intends to offer to them at this point. 126. The larger the avoidable loss, the higher will be the standard of reasonableness the plaintiff must observe in taking steps to mitigate that loss. In these three claims, the amount of damages claimed for future loss are very substantial: K claims $1,913,312 under this head, Y $1,499,720 and W $1,715,243. In view of these large claims, should the plaintiffs put to one side their misgivings about employment with FSD and CED, and be willing to re-commence careers "from square one"? 127. This brings the issue back to the timing of the offer and the condition it is subject to. The defendant had the opportunity to avoid each plaintiff's future loss (and some of the past loss) by making the offer, without reservation, at a time when the plaintiff was willing to accept it, that is when the complaint was first made and these proceedings commenced. There is no evidence that any plaintiff had an opportunity to avoid the loss by finding comparable employment, and so far as the claims for include loss of housing and pension benefits (amounting to between a third and a half of each claim for future loss) the plaintiffs would likely have found that employment with that package of benefits was limited to other disciplinary departments, their entrance to which was blocked by the same discriminatory policy. 128. The burden is on the defendant to show that the plaintiffs are not acting reasonably in choosing now not to be employed in the posts they applied for originally. I find that K, after taking into account the time that has passed since the discrimination and all that has occurred since, and his lack of confidence in the FSD as his employer, is not shown to have acted unreasonably in making his choice. I make the same finding in respect of Y. As for W, he leaves open the possibility that he might be persuaded to find CED an acceptable employer; in the meantime it is not unreasonable for him to preserve his choice of compensation for future loss instead of that employment. No doubt the offer to re-employ him will remain open until he uplifts that part of his damages which represents future loss. Should future losses be capped? 129. Plaintiffs who suffer personal injury are compensated by the tortfeasor for any loss of earning capacity. Loss of earnings, past and future, are the basis of the measurement of loss of earning capacity. In a case of unlawful discrimination in employment, such as these, the damage caused to the plaintiff by the defendant's tort is not a loss of earning capacity. It might be described as a displacement in the employment market - the plaintiff is not appointed to, or he is dismissed from, the job he should have had. He is forced to take other employment and if it is at a lower salary he sustains a loss of earnings. In the normal course of events, given that there is no reduction in capacity to earn, that loss of earnings should not be permanent. 130. Nevertheless the plaintiffs seek damages to compensate not only their past loss of earnings but also future losses on the basis that some loss will continue until age 55 which is the normal retirement age for employment with FSD and CED. K, aged 23 at trial, would have had 32 more years to run; Y, aged 21, 34 years; W, almost 24, 31 years. K's claim for future loss of earnings is quantified at $1,034,979.88 using a multiplier of 17, a multiplicand based on current loss of earnings but factoring in expected salary increases, and an overall reduction of 10% for imponderables. Similarly, Y's claim is quantified at $916,530, and W's at $736,826.64. 131. The defendant submits that the Court should limit the plaintiffs' claim for future loss of income to a reasonable period of, say, two years from the time of discrimination. In support I am referred to the following passage in Discrimination: Remedies and Quantum at p.73, para. 3.1.3 "Future Losses":
132. Under English employment legislation, compensation for loss of earnings for unfair dismissals is subject to various caps, the highest being two years' pay: ss. 112, 117-125 Employment Rights Act 1966. I do not think the learned authors of DRQ meant that there is a cap to claims for future losses in discrimination cases. They were, it seems, assuming assessments in cases where the plaintiffs had yet to find alternative work. In such cases assessments of two years or less as the time it would take to find employment are understandable. This must depend, however, on the facts of each case. In discrimination claims in England there is no cap on future loss, as the concluding passage of the judgment of the EAT (Morison J.) in Ministry of Defence v. Cannock (supra) at 955G makes clear:
133. In Cannock the EAT held that the measure of damages was tortious, resisting an argument that the measure should be contractual limiting awards to the contractual terms extant at the times of the unlawful discrimination, which consisted of dismissals of pregnant women in the armed forces. The Tribunal proposed, at 951-953, that the estimated loss of future earnings (and past losses, for the women had been dismissed many years before) be discounted for various contingencies including the chances of not returning to work after child-birth and early retirement (just as Mrs Cannock's assessment had already been reduced by 20% and 15% respectively for these two contingencies by her industrial tribunal - see the annex to the judgment at 957). 134. In this way the principles of causation and remoteness of damage are applied to the measure of compensation. The same principles are applied under Human Rights Legislation in Canada, only more rigorously, to the extent that a cap is generally applied. In Canada (Attorney General) v. Morgan (1992) 2 F.C. 401 the Federal Court of Appeal approved the minority opinion of the Review Tribunal which proposed a cut-off point in awarding general damages. The complainant's application to enrol in the armed forces was rejected for an admitted discriminatory reason and it took 81/2 years for his complaint to come before a Tribunal, which was empowered to re-instate him as well as compensate him for lost wages. The issue arose whether he should have been compensated up to the date of re-instatement. Marceau J., for the majority of the Federal Court of Appeal, said (at 29 of the Lexis report):
After distinguishing assessments of lost earnings in wrongful dismissal cases, Marceau J. went on (at 30):
135. Morgan does not describe the exercise undertaken by the minority Review Tribunal member to establish a cut-off point, nor does it say what the point was. Obviously, it was less than 8 1/2 years. DeJager was a Canadian Human Rights Tribunal decision regarding compensation for a serviceman discriminated against by being released from employment because of his asthma. He had been in and out of work subsequently and was still unemployed when the hearing on damages took place over 5 years later. The Tribunal found (at D/3966) that his efforts to obtain employment were adequate mitigation. Nevertheless the Tribunal went on to assess "a reasonable length of compensation" applying dicta of Professor Cumming sitting as a Board of Inquiry under the Ontario Human Rights Code in Torres v. Royalty Kitchenware Ltd (1982) 3 C.H.R.R. D/858, at D872 (emphasis added):
136. Applying this test, the Tribunal in DeJager held that the reasonably foreseeable time was a period 2 years and 8 months after the act of discrimination. Given that there was no failure to mitigate in either case, the exercises in foreseeability from the time of the tort in Morgan and DeJager, applying Torres, were contradicted by experience. This shows that the assessment is a true cap. Not a blanket cap, but one which arises in each case from going back to the time of the discrimination and making an assessment of what was expected then. 137. In Australian discrimination claims for future loss it appears that, as in England, principles of causation and remoteness of damage are carefully applied without resorting to any kind of cap: see Hickie v. Hunt & Hunt (1998) HREOCA 8 a sex discrimination case in which a claim for three years' future loss of earnings amounting to $252,000 was assessed at $30,000 taking into account various uncertainties; and Melvin v. Northside Community Service Incorporated (1996) HREOCA 20 a disability discrimination case in which future loss was limited to one year to take into account the difficulty the claimant's disability (a vision deficit) would cause in her search for new employment. 138. Even in Canada the cap is not always strictly applied. In Canada (Attorney General) v. Thwaites (supra) the Federal Court of Canada (Gibson J.) held that a contingency deduction of 10%, for a medical reason, of an actuarially based assessment of future loss for the remainder of the claimant's working life which "factored in the reality and continued possibility of mitigation through alternative employment" gave effect to the principle of common sense (Morgan) and "amounted to the establishment of a cap or cut-off point for the period of compensation" (60 of the Lexis report). It was not the cut-off point Professor Cumming had in mind. 139. The defendant's argument would have the Court apply a cap of the kind applied in the Canadian line of authority beginning with Torres, because it calls for a cut-off for loss of earnings after about two years from the time of discrimination. As this period has already expired the plaintiffs would not be entitled to be compensated for future losses. If I were to go back to the time of the discrimination and assess a reasonable period for the plaintiffs to recover the salary ground lost by the discrimination, I might well decide that two years was the foreseeable period. But the facts are the plaintiffs have not yet caught up with the salary of the subject jobs, and there is no evidence that they have failed to mitigate in their search for employment. Such an assessment would be unrealistic and, I think, unfair to the plaintiffs. 140. Rejecting the Canadian approach, therefore, and applying the English/Australian approach I shall make the assessment from the time of trial. The fact that the plaintiffs still have partial loss of earnings two to three years after the discrimination, however, does not mean that they will continue to do so until they reach the age of 55 years. It is impossible to predict with certainty how long it will take to close the gap, but I am satisfied it will probably be achieved in the course of their working lives, and sooner rather than later. Their full mobility within the workforce and their undiminished earning capacity will assist them to overcome their present disadvantage in time. In 1998 Hong Kong entered into a period of record unemployment. Whether that helps to explain the plaintiffs' current losses in earnings, or not, any improvement in the employment market will work in favour of closing the discrepancy, as will (for K and W) the HKSAR Government's well known policy of keeping civil servants' salaries in line with those in the private sector. 141. There is a strong case for making an assessment on the basis that the loss of earnings will have stopped within a few years. In my view the assessment should be implemented, first, by the use of a substantially reduced multiplier to take account of the probability that, in due course, the gap between the plaintiffs' salaries and the salaries of the respective FSD or CED jobs will close; and, second, by ignoring prospective increases in both salaries. Assessment of future loss of earnings. 142. The work multiplier of 17 proposed for the plaintiffs' working lives up to age 55 is shown to be in line with actuarial tables. It is consistent with the two personal injury cases involving civil servants which I am referred to: Chun Yat Nam (supra) and Poon Man Chun v. Li Sau Yee HCA 2294/92 (unrep.). It is not inconsistent with the multiplier of 15 used for the infant female plaintiff in Leung On v. Chan Pui Ki (1996) 2HKC S65 (C.A.). Had the current loss of earnings of the plaintiffs been the result of lost earning capacity I would accept a multiplier of 17 for each plaintiff. For the reasons I have explained, however, to take account of the probability that the plaintiffs will recover from this earnings disadvantage, I reduce the multiplier to 5. 143. The post of ambulance man K applied for carried a salary of $14,100 per month. His current salary is $10,862.92, a loss of $38,844.96 per annum. Using the multiplier of 5 I assess K's future loss of earnings at $194,224. 144. The post of fireman Y applied for carried a salary of $14,500. His salary is $12,595, a loss of $22,860 per annum. Using the same multiplier I assess Y's loss at $114,300. 145. The post of customs officer W applied for carried a salary of $14,100. His salary is $13,392, a loss of $8,496 per annum. Using the same multiplier I assess W's loss at $42,480. Other benefits. 146. There is not such a strong case for predicting that the plaintiffs will recover lost ground during their working lives in respect of the particular pension and housing benefits which attach to the FSD and CED positions. The pension benefit of the civil service is likely to be superior to the Mandatory Provident Fund. The housing benefit is peculiar to HKSAR Government's disciplinary forces and is unlikely to be replicated outside the civil service. Accordingly, there is less reason to reduce any assessments of loss of pension and housing benefits on the ground that the plaintiffs will at some point in the future obtain the same benefits or equivalent reward. This is possible rather than probable. The assessments should, however, take account of the possibility. Loss of housing benefit. 147. The parties have agreed that the housing benefits would have been available after 2.5 years of service, and that the value of the benefits will be measured by deducting, from agreed rental values of the notional accommodation ($3,200 for K and Y, $4,500 for W), an anticipated employee contribution of 5% of salary, to arrive at a net annual value of the lost benefit. The parties agree on the multipliers to be used in the event of an assessment of the value of the benefit until age 55: multipliers of 14 for K and 12 for Y and W. 148. To take account of the possibility that the plaintiffs will succeed in obtaining an equivalent benefit in their employment before age 55 I will apply reduced multipliers of 10 for K and 9 for Y and W; and disregard anticipated notional salary increases in the calculation of the employee contributions. I make the following assessments under this head:
Loss of Pension Benefit. 149. These are recoverable as a future loss: Racial Equality Council Cleveland v. Widlinski (supra). The FSD and CED benefits are provided for under the Pension Benefits Ordinance, Cap 99, according to a pension factor of 675, the officer's length of service and his highest salary prior to retirement, and the fund is calculated to pay a pension for 14 years. I will make an assessment on the whole pension fund calculated notionally for each plaintiff, which is available for payment of the monthly pension or a commuted sum (if so elected) and reduced monthly pension. I accept the defendant's method of calculation of estimated future Mandatory Provident Fund benefits to be set off against the pension fund values. I accept the plaintiff's discount values for the purpose of establishing the present day value of the balance. 150. I will then make two deductions to provide for the following: the likelihood that the plaintiff's earnings at some time in the future will increase to close the salary gap between his salary and that of the subject post, thereby augmenting his MPF entitlement; and the possibility that the plaintiff will not survive to, or much beyond, retirement age. For the former contingency: 20%: for the latter: 10%; a total deduction of 30%. 151. Y is in a special position in that he already enjoys civil service pension rights at the Leisure and Cultural Services Department. If his salary at retirement is the same as it would be had he been recruited by FSD, and remained there until retirement, the only difference between the pension entitlements will be the small difference arising from 15 months less qualifying service. And, for the purpose of assessing his future loss of earnings (above), I have assumed his income will not be less, at age 55. I think it right, however, to make an assessment of a loss of pension benefit in his case because he may leave the civil service during his working life as part of the process of recovery of his loss of earnings. The only available measure of loss is the projected departmental salary-based comparison. In this way I arrive at the following assessments of loss of future pension benefits: K (DCEO 3/99) Assuming retirement as Senior Ambulanceman at salary point 22 ($24,450) after 404.267 months of service: $24,450 x 12 x 404.267 / 675 x 14 = pension fund entitlement of $2,460,099. Less MPF entitlement (para. 86(3) of defendant's closing submission) $926,084 = $1,534,015. Present day value, applying a discount factor of 0.244 for 32 years: $374,299. Reduced by 30%: $262,009. Y. (DCEO 4/99) Assuming retirement as Senior Fireman at salary point 22 ($24,450) after 440.63 months of service: $24,450 x 12 x 440.63 / 675 x 14 = pension fund entitlement of $2,681,380. Less for retirement at salary point 10 ($15,160) after 425 months ($15,160 x 12 x 425 / 675 x 14 = $1,603,591) = $1,077,789. Present day value applying discount factor of 0.224 for 34 years: $241,424. Reduced by 30%: $168,996. W. (DCEO 7/99) Assuming retirement as Senior Customs Officer at salary point 22 ($24,450) after 406.9 months of service: $24,450 x 12 x 406.9 / 675 x 14 = pension fund entitlement $2,476,122. Less MPF entitlement (para. 89 defendant's submission) $635,182 = $1,840,940. Present day value applying discount factor of 0.244 for 32 years = $449,189. Reduced by 30%: $314,432. Summary of Damages Awarded.
Costs Section 73C(3) District Court Ordinance (Cap 336) provides:
152. The defendant submits that there are no special circumstances for the making of an award, and these actions have been the first test of the recruitment policy. If, however, FSD and CED had followed the suggestion of the defendant's Task Force to relax its policy the discrimination would not have occurred and the litigation would have been unnecessary. The plaintiffs did not have the means themselves to meet the cost of the litigation and, although they have been supported by EOC, counsel inform me that EOC does not have a separate budget for litigation. These matters, in my view, amount to special circumstances for the making of an award of costs in favour of the plaintiffs. I order that the defendant pay the costs of the plaintiff in each action, with certificate for two counsel.
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