Causation and the Problem of Inter-Disability Discrimination in Hong Kong

Abstract

An anomalous series of cases has held that the tort of direct disability discrimination is not made out where the plaintiff cannot compare her circumstances with those of a person who is not disabled. There are situations, however, where comparison of this sort is necessary in order to ascertain whether the treatment complained of was caused by the plaintiff’s disability. In these cases, relief has been denied where it may ought to have been granted, and at a doctrinal and theoretical level the law is in an unsatisfactory state. The legislative text in question, however, admits of an ambiguity, and recourse can be made to its objects and purposes – and if necessary the constitutional guarantee of equality – to construe the provisions so that ‘inter-disability discrimination’ as it has been called is prohibited, not permitted.