Kennedy, Des --- "Damages for injury to feelings against the Commonwealth: breaches of the Sex Discrimination Act and the Racial Discrimination Act" [2017] PrecedentAULA 77; (2017) 143 Precedent 58

---

DAMAGES FOR INJURY TO FEELINGS AGAINST THE COMMONWEALTH

BREACHES OF THE SEX DISCRIMINATION ACT AND THE RACIAL DISCRIMINATION ACT

By Des Kennedy SC

Where there have been unlawful acts pursuant to the Sex Discrimination Act 1984 (Cth) (SDA) – which also covers sexual harassment – or pursuant to the Racial Discrimination Act 1975 (Cth) (RDA), a complaint can be made to the Australian Human Rights Commission (AHRC). If the complaint is terminated for a variety of reasons set out in the AHRC’s enabling Act,^[1] the applicant is entitled to commence proceedings in the Federal Courts for damages.

That application must normally be made within 60 days of the AHRC termination. This is the only statutory limitation that applies, even though the breach may have occurred many years previously. Damages are to be assessed as if there had been a tortious breach, are at large, and can include aggravated and exemplary damages. While common law damages are generally unavailable to employees seeking compensation for injury arising out of or in the course of their employment from the Commonwealth and Commonwealth statutory authorities (such as Comcare), it appears that damages for injury to feelings, distress, hurt, humiliation and the like may have escaped these exclusions.

As a result of such breaches, a person often suffers some psychiatric or psychological damage. However, by reason of the combined operation of ss5A and 44(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRCA), they are (generally speaking^[2]) precluded from bringing a common law action for damages for any such breaches against the Commonwealth or any Commonwealth statutory authorities or agencies (collectively, one of the largest employers in Australia) in respect of physical or mental injury arising out of or in the course of their employment.

A mental injury is not defined in the Act (and not, as far as I am aware, in any court decision) but is likely to encompass a recognisable psychiatric injury and psychological condition that arose out of or in the course of the employment. Unfortunately, there is nothing in the second reading speech of the SRCA that gives any hint or guidance as to the meaning of these words.

In the writer’s view, this SRCA preclusion is unlikely to extend to injury to feelings, distress, humiliation and the like in that it was never the intention of the Parliament to exclude such claims pursuant to the SRCA, meaning that damages are likely to be recoverable from the Commonwealth or Commonwealth statutory authorities in such claims. Wilcox J in Stephenson v Human Rights and Equal Opportunity Commission^[3] cited with approval the following passage from Hall & Ors v A & A Sheiban Pty Ltd & Ors:^[4]

‘[T]he task of determining the appropriate level of damages in a case of sex discrimination or sexual harassment is not an easy one. Where it appears that a claimant has incurred particular expenditure or lost particular income as a result of the relevant conduct, that economic loss may readily be calculated. But damages for such matters as injury to feelings, distress, humiliation and the effect on the claimant’s relationships with other people are not susceptible of mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complaint by failing grant relief in respect of a proved item of damage.’^[5]

The Court in Hall & Ors v A & A Sheiban Pty Ltd & Ors cited with approval the following passage of May LJ in the English Court of Appeal in Alexander v Home Office:^[6]

‘As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referrable to this can be readily calculated. For the injury to feelings, however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life.’^[7] (emphasis added)

This decision appears to provide a sound authority, at a high level, supporting the view expressed above.

There can be vicarious liability^[8] on the part of an employer but injuries to feelings, distress, hurt and humiliation, in the writer’s view, would likely fall outside the concept of mental injury, as they are essentially adverse human emotions as a result of the breach.

There have been a number of recent cases where damages have been considered or awarded for such injury. In Demo & Scenic Rim Regional Council,^[9] Mr Demo was the owner of a property that been damaged as a result of flood and was allegedly called a ‘dumb wog’ by an employee of the Scenic Rim Council who came to his property to inspect the damage. The Court found that the words were unlawful pursuant to the RDA but had found, as a matter of fact, that they had not allegedly been said (the words were not spoken when any others were present). The Court found that if it had been said it would have awarded him $4,000 for injury to feelings, hurt, humiliation and the like.^[10]

In Haider v Hawaiian Punch Pty Limited,^[11] Mansfield J found that a nightclub bouncer yelled at the plaintiff, in a heated exchange, ‘that he should go back to his own country, that Australia was a white peoples’ [sic] country and that [you are] not white’.^[12] This was language clearly in breach of the RDA and Mansfield J awarded the plaintiff the sum of $9,000 for injury to feelings and humiliation. The plaintiff appeared in person and did not seek to put before the Court any expert evidence that he had suffered any psychiatric or psychological damage.

In recent times, the courts have been taking much more seriously the level of damages that should be awarded in sexual harassment claims pursuant to the SDA. While the decision of the Full Court of the Federal Court in Richardson v Oracle Corporation Pty Ltd^[13] did involve psychiatric injury for sexual harassment, it set out some important guidelines as to why that should be so which included ‘that community standards now afforded a higher level of damages for pain and suffering and the loss of the amenities of life (general damages)’.

It is the writer’s view that this approach is likely to be equally applicable to SDA and RDA in respect of claims for injury to feelings, and the like.

Richardson v Oracle Corporation Pty Ltd^[14] approved a long line of authority to the effect that damages for unlawful breaches of the SDA and RDA should be regarded and assessed as if the breach had been a tortious breach and should include both aggravated and exemplary damages, which had been reflected in a long line of decisions.

There is available a defence in SDA and RDA claims that the respondent took all reasonable steps to prevent the breach. The respondent bears the onus of proof. However, as allegations in respect of breaches of the SDA and RDA are regarded as serious matters, the applicant’s onus of proof is at the Briginshaw v Briginshaw^[15] level.^[16]

The most recent case in this area in Australia is Murugesu v Australia Post & Anor (No. 2).^[17] In this case, the Court awarded the sum of $40,000 for injury to feelings and the like. The applicant had been subjected over many years to being called a ‘black cunt’ or ‘fucking black cunt’ at his workplace. There was no finding of any psychiatric damage. The Court found that the offence did not occur on as many times as the applicant alleged. There was a claim for aggravated and exemplary damages, but the applicant did not really press this aspect of the damages claim and there was no particular award made under these heads of damage.

Much higher awards have been made for injury to feelings, and the like, in a series of English discrimination decisions.^[18] In one such decision by the Employment Appeal Tribunal, a claimant was awarded £100,000 for injury to feelings and £25,000 for aggravated damages.^[19]

These earlier decisions can only provide a guide and the English approach in recent times is for the courts to provide guide levels or damages bands depending on the seriousness of the breach. The Australian Federal Court has a tendency to include any exemplary damages in its award of general damages on the basis that the award of damages in itself provides a measure of deterrence. In the writer’s view, there could be circumstances where the award of aggravated and/or exemplary damages (other than for judicial timidity) would be appropriate, as long as there is no double-dipping as between general damages and aggravated damages, and providing there is a proper deterrence required by the award of exemplary damages. While the award of Exemplary damages is discretionary, if the level of deterrence required in the circumstances of a particular case is not adequately provided for in the amount of the general damages awarded, then an award should be made. This may be the case in injury to feelings and the like in SDA and RDA cases, and particularly the case against the Commonwealth or Commonwealth statutory authorities, given their size and that they generally employ a large number of employees.

Des Kennedy SC has practised as a barrister for 41 years, 18 as a Senior Counsel. He has recently acted in sexual discrimination/harassment and racial discrimination matters, and has appeared in major cases in respect of workplace and school bullying. He presently acts as a mediator. PHONE [phone] EMAIL [e-mail] WEB www.kennedymediation.com.au.

---

^[1] Australian Human Rights Commission Act 1986 (Cth).

^[2] Safety, Rehabilitation and Compensation Act 1988 (Cth), ss44(1) and 45.

^[3] [1995] FCA 1757; (1995) 61 FCR 134.

^[4] [1989] FCA 72; (1989) 20 FCR 217.

^[5] Ibid, at 256.

^[6] (1988) 1 WLR 968.

^[7] Ibid, at 975.

^[8] See SDA s106a and RDA s18E.

^[9] (2014) FCCA 1623.

^[10] Ibid, [36].

^[11] (2015) FCA 37.

^[12] Ibid, [8].

^[13] [2014] FCAFC 82.

^[14] [2014] FCAFC 82.

^[15] [1938] HCA 34; (1938) 60 CLR 336.

^[16] The ‘Briginshaw v Briginshaw level’ means that the court needs to be satisfied that the unlawful act has occurred with comfortable certainty on the balance of probabilities; Qantas Airways Limited v Gama [2008] FCAFC 69, [113]-[119].

^[17] [2016] FCCA 2355 (which was the damages decision that followed Murugesu v Australian Postal Corporation & Anor [2015] FCCA 2852).

^[18] The details of these are to be found in the authoritative text by Neil Reeves, Catherine Linsey and Simon Rice, Australian Anti-Discrimination Law, The Federal Press, 2008 at [11.4.13], [11.5.5] and [11.6.1].

^[19] Virdi v The Commissioner of Police of The Metropolis [2000] ET/2202774/98.