Research Paper 13 1997-98

What Price Dignity? - Remedies in Australian Anti-Discrimination Law

Carol Andrades
Law & Bills Digest Group
12 May 1998

Contents

The Framework

Major Issues Summary

In Australia, there is no shortage of legislation designed to address discrimination. The Racial Discrimination Act 1975 has been in place for over twenty years. It is complemented by a battery of anti-discrimination statutes at Commonwealth, State and Territory levels. The enactment of these laws represents a commitment to promotion and support of fundamental human rights.(2)

Yet, when one examines the monetary value placed upon the distress generated by discrimination, it emerges that there may be an undervaluing or devaluing of the damage. Sometimes, it is the legislation that curtails the amount of damages that are awarded.(3) In other instances, tribunals seem to display a conservative attitude to assessing the value of distress.(4)

Although it is difficult to quantify, in monetary terms, the hurt caused by a discriminatory act, similar issues have arisen in the analogous field of defamation law where hurt to feelings and to reputation are routinely considered for compensation.

The essential ingredient of defamation is the disparagement or impugning of a person's reputation and communication of that to a third person. It may manifest itself in a variety of ways, ranging from ridicule to injuring personal or professional reputation. Thus, a footballer who was described by a sportswriter as 'slow and predictable' could properly bring an action for defamation because of the ridicule involved in that description. In a similar vein, a mayor who was portrayed as accepting financial support from wealthy people, impliedly in return for favours, could sue for harm to his reputation.

In a case of discrimination, an individual's interest in his or her honour or dignity must be at least as worthy of protection and is arguably even more worthy of protection, given the wider community interest in the proper operation of anti-discrimination law.

A comparison of approaches suggests that a plaintiff in a defamation suit is likely to recover more, by way of compensation for humiliation or loss of dignity, than a complainant in a discrimination action.

The analogy between discrimination law and other forms of civil wrong, such as defamation, may be explored by examining the preparedness of courts and tribunals to award certain forms of damages.

In tort law the most common categories of damages canvassed are:

• special damages (which are readily calculable)
• general damages (which compensate for humiliation, loss of dignity and the like)
• aggravated damages (where there is an element of aggravation involved in the conduct of the respondent), and
• punitive or exemplary damages (which are awarded to punish or deter).

There has been a reluctance on the part of courts and tribunals to award punitive damages in discrimination cases and the measure of general damages has been relatively low, when compared with damages in defamation cases. In some jurisdictions, ceilings are placed on the amount of damages which may be awarded in discrimination cases. This places a further constraint upon the potential for higher awards of damages.

The disparity in approach raises some interesting questions about attitudes to the gravity of the offensive conduct in each case. Is there a legislative standard, a community standard, a tribunal standard or perhaps a double standard?

Introduction

Australian anti-discrimination law is not uniform. It is distributed among a range of Commonwealth, State and Territory statutes.(5)

Grounds of discrimination vary at each level. For example, only in Victoria can people lodge complaints about discrimination based on their physical features and solely in the Australian Capital Territory is profession-based discrimination prohibited. The most common grounds of discrimination covered are sex, race, disability, religion, age, parental status, marital status and sexual orientation, but there are also subtle variations in the way each of these is described.(6)

Because there is some overlap between Commonwealth and State/Territory laws (for example, in the areas of sex, race and disability discrimination), it is sometimes also open to a prospective complainant to choose between jurisdictions. The bodies entrusted with exercising the powers under the statutes also go under different names. (For ease of reference, they will be referred to in this paper as 'tribunals'.)

It might therefore be expected that there would be difficulty in identifying a coherent, consistent body of anti-discrimination law.

However, despite the multiplicity of statutes in this area of the law, their specification of available redress and the tribunals' approach to remedies have been remarkably similar.

This paper concentrates on the question of remedies and, in particular, damages for humiliation and distress.

The Framework

In order to put the discussion into context, it is first necessary to identify the framework within which the laws operate and to understand what constitutes 'discrimination'.

This paper concentrates on those statutes which provide for a complaint-based system of dispute resolution. There are other statutes relevant to discrimination in the community (for example, affirmative action laws), but these either do not result in litigation,(7) or are primarily devoted to another purpose and therefore have not been included in this study.(8)

Commonwealth Statutes

At Commonwealth level, the principal anti-discrimination statutes dealing with the hearing and determination of complaints are:

• the Racial Discrimination Act 1975
• the Sex Discrimination Act 1984
• the Human Rights and Equal Opportunity Act 1986, and
• the Disability Discrimination Act 1992.(9)

Their titles broadly describe the category of discrimination each is designed to address.

Complaints must also be linked to a field of activity covered by the Acts, for example, employment, the provision of goods and services, or accommodation.

At the time of writing, the Human Rights and Equal Opportunity Commission (HREOC) is responsible for hearing and determining complaints under the Commonwealth Acts, but this is expected to change in the near future.(10)

State and Territory Statutes

At State and Territory levels, the principal anti-discrimination statutes are:

• the Anti-Discrimination Act 1977 (New South Wales)
• the Equal Opportunity Act 1984 (South Australia)
• the Equal Opportunity Act 1984 (Western Australia)
• the Anti-Discrimination Act 1991 (Queensland)
• the Discrimination Act 1991 (Australian Capital Territory)
• the Anti-Discrimination Act 1992 (Northern Territory)
• the Sex Discrimination Act 1994 (Tasmania), and
• the Equal Opportunity Act 1995 (Victoria).

As mentioned above, each covers a variety of grounds of discrimination in disparate fields of activity. The main difference between the Commonwealth and State or Territory statutes is that the latter two embrace a much wider range of categories of discrimination.

'Discrimination'

Most of the legislation referred to in this paper specifically covers two categories of discrimination: 'direct' and 'indirect' discrimination.(11)

Direct discrimination occurs where a person treats an aggrieved individual in a protected category less favourably than he or she would treat another person (who does not have the aggrieved person's protected characteristic), in circumstances that are the same or are not materially different. An example would be denying someone a job simply because he or she is over 50 years old.

Indirect discrimination occurs where a person in a protected category is required to meet an unreasonable requirement or condition, which he or she has difficulty meeting, and which persons who are not in the protected category would find it easier to meet. The requirement is usually neutral on its face, but generates a disadvantage in its operation. An example is requiring all applicants for a labouring job to be able to read and write English. Applicants from non-English speaking backgrounds would be disadvantaged by such a requirement, in circumstances where the requirement is unreasonable and unnecessary for the inherent needs of the job.

Classifying Discrimination

None of the anti-discrimination statutes provides any guidance as to how a discrimination complaint is to be legally characterised.(12) In ascertaining how to deal with complaints, tribunals have felt the need to classify them within established fields of law.

Early decisions in Australian discrimination law reveal uncertainty about where to place the then new species of statute. The reaction was to characterise discriminatory conduct as a tort (i.e. a civil wrong). In the 1986 case of Allders International Pty Ltd v Anstee & Anor (13), the Supreme Court of New South Wales was asked by the respondent to set aside orders made by the New South Wales Anti-Discrimination Tribunal in favour of the complainant. Among other things, the respondent argued that damages for injury to feelings were beyond the power of the Tribunal to award. His Honour, Lee J, rejected this argument and said, in the context of the Anti-Discrimination Act 1977 (NSW):

Subsequent decisions confirm that tort is a useful point of reference, and there is some suggestion that discrimination actions may have available an even more flexible range of remedies than tort. In the 1989 case of Hall & Ors v A & A Sheiban Pty Ltd & Ors, Lockhart J of the Federal Court of Australia (reviewing a decision of the New South Wales Anti-Discrimination Tribunal), noted:

In the 1995 decision of Moloney v Golden Ponds Corporation P/L(16) the receivers of a company objected to being joined as parties to a complaint under the New South Wales Anti-Discrimination Act 1977. They argued that such an action was an action in contract, for which a receiver could not be held personally liable. They contended that the analysis of discrimination claims as tort was relevant only to the issue of assessment of damages. The New South Wales Anti-Discrimination Tribunal rejected the argument, holding that the action was one in tort and that the receivers were properly joined.

Powers of Tribunals

If a complaint of discrimination is a tort or a 'tort-like' action, the next question is what relief can be expected where a complaint is upheld.

Under all the legislation, complaints of discrimination are referred initially to a process of conciliation, where the complainant and respondent explore the possibility of a negotiated settlement of the complaint. The process may be assisted by officers of the body given jurisdiction to administer the legislation.(17)

Where the complaint cannot be settled by conciliation, it may be referred to a tribunal for assessment of the merits and ultimate decision.(18) It is the exercise of the powers of these tribunals and in particular the damages-awarding power, which is the focus of this paper.

A notable feature of anti-discrimination law is the breadth of powers given to tribunals empowered to hear and determine complaints.(19)

In some cases, those powers are expressed in quite general terms. For example, under the Victorian Equal Opportunity Act 1995:

In other cases, there is more detail given about the options available to the tribunal. For example, under the Commonwealth Disability Discrimination Act 1992:

The practical result is in each case similar. Reduced to essentials, the tribunal may take no further action or it may make two types of order in favour of a successful complainant. One is an order for the performance of certain acts by the respondent, not involving payment of money. The second is an order for the payment of money. The remedies may be alternative or cumulative.

Non-Monetary Remedies

Non-monetary remedies have been used with notable effect in anti-discrimination cases.

In Wardley v Ansett Transport Industries (Operations) P/L(22),the complainant's application to be a pilot in the respondent's air service was rejected, even though she scored better on the interview criteria than the average of the successful male applicants. The main reason for denying employment related to the complainant's impending marriage and the probability of her becoming pregnant. The Victorian Equal Opportunity Board upheld the complaint and, among other things, ordered the respondent to engage the complainant as a trainee pilot.

Non-monetary orders can also have an educative effect, assisting to anticipate and eliminate future discrimination. In Daniels v Hunter Water Board(23), the complainant suffered discrimination at work, because he was perceived by co-workers to be homosexual. The offensive conduct occurred over a period of five years and included various incidents of abuse and humiliation. He was called a 'poofter', 'gay boy', 'gay bar freak' and this was associated with practical jokes such as puncturing his bike tyres, paint being sprayed on his tool box and hiding of his keys. Upholding the complaint, the New South Wales Equal Opportunity Tribunal also requested the President of the New South Wales Anti-Discrimination Board to make the Anti-Discrimination Board's facilities available to assist the respondent in a programme to raise awareness of anti-discrimination provisions in the workplace.

In cases of indirect discrimination, involving detriment to a class of persons in the community, non-monetary remedies have been especially useful. In these cases, tribunals have been prepared to make far-reaching orders. In the Victorian case of Waters & Ors v Public Transport Corporation(24),the complainants had various physical or intellectual disabilities and relied on the assistance of tram conductors and railway station assistants in order to travel on public transport. They would have found it 'exceedingly difficult, if not impossible'(25) to use a new system of public transport ticketing proposed by the respondent. The new system involved the removal and/or reduction of numbers of conductors and station assistants, coupled with the introduction of mechanised ticketing systems. After finding that the proposal was discriminatory, the Victorian Equal Opportunity Board ordered that the respondent discontinue the new ticketing system and refrain from implementing the 'driver-only' tram proposal. The orders were upheld by the High Court.(26)

A common non-monetary remedy is the ordering of an apology. There does not seem to be any controversy about tribunals' general power to make this type of order, but the New South Wales Anti-Discrimination Act 1977 specifically provides for apologies in the context of vilification complaints.(27)

In some cases, notably the refusal of service in hotels and similar establishments on the grounds of race, written and/or public apologies are commonly ordered.(28)

Even so, it is not certain that a request by a complainant for an apology will be granted, whenever a complaint is upheld. In Dunn-Dyer v ANZ Banking Group Ltd, the complainant claimed that the respondent had engaged in a pattern of gender-discriminatory behaviour, culminating in her retrenchment. The Human Rights and Equal Opportunity Commission upheld the complaint but declined to grant the complainant's request for a letter of reference and an apology from the respondent, commenting that:

The reference to vindication is worthy of note. Vindication is often referred to in defamation law as one of the purposes of an award of damages.(30)

Importantly, the early offering of an apology and the quality of any apology offered are also taken into account in defamation law, particularly in assessing whether aggravated damages should be awarded.(31) It may be that similar considerations should be given more weight in anti-discrimination law, particularly in the context of measuring hurt to feelings.

Monetary Remedies

The principal anti-discrimination statutes empower the relevant tribunals to order payment of money to successful complainants. However, the statutes specify no criteria for assessing the level of compensation, with the result that tribunals have had to devise their own standards for such decisions.

While this compounds the difficulty of analysing the rationale for such orders, a coherent basis for that consideration is found by considering two key questions, namely:

• what types of damages can be awarded?
• what value should be placed on humiliation, anxiety and stress caused by unlawful discrimination?

Heads of Damages

The types of damages most often referred to in the context of discrimination law are:

• special damages
• general damages
• aggravated damages, and
• punitive or exemplary damages.

The use of these heads of damage is a direct result of the analogy drawn between tort law and discrimination law. Tort law regularly refers to such types of damages.(32)

Special Damages

Special damages are those which are readily calculable, such as lost wages, medical expenses and the like. There has never been any controversy about their availability in discrimination actions.

The assessment of special damages in discrimination was described in Hall's Case as:

Where appropriate proof of loss is established, anti-discrimination tribunals have been ready to grant such damages. In Dunn-Dyer's Case (34), for example, the complainant was awarded $125 000 in special damages for loss of salary occasioned by her employer's discriminatory conduct.

General Damages

General damages are awarded for harm such as humiliation, loss of dignity and self-esteem and loss of enjoyment of life. It is accepted that such damages may be awarded in discrimination cases and some of the statutes expressly refer to the availability of damages for injury to feelings or embarrassment.(35) The level of general damages awarded in discrimination cases is discussed in more detail below.

Aggravated Damages

Aggravated damages are awarded where an element of aggravation is involved in the respondent's conduct. Such damages have been considered to be available where a person has acted high-handedly, maliciously, insultingly or oppressively.(36) Although it was initially held that such damages were not available in discrimination complaints(37), it is now clear that they are. In Hall's Case, Lockhart J observed:

Punitive or Exemplary Damages

The early qualms about awarding aggravated damages in discrimination actions may have stemmed from a concern that they might be mistaken for punitive or exemplary damages, which are not considered to be available in discrimination cases.

Punitive or exemplary damages are awarded to punish or deter. Such damages are thought by some to be incompatible with the idea of 'compensating' for loss and damage suffered. In Hall's Case, Lockhart J noted:

However, the Court appeared to base its decision primarily on the words of the statute in question, the Sex Discrimination Act 1984 (Cth) subsection 81(1)(b)(iv) of which referred (and still refers) to damages 'by way of compensation'. It was also noted that the matter was not fully argued and the facts of the particular case did not necessitate a final conclusion on the particular point.(40)

The Availability of Punitive or Exemplary Damages

There are three issues which could be further addressed by tribunals and the legislature in the context of punitive damages.

First, if the idea of punitive damages is incompatible with the idea of 'compensation', then it may be that where a statute does not refer to the awarding of money by way of 'compensation' (for example, the Victorian Equal Opportunity Act 1995, refers to the 'redressing of circumstances'), punitive damages remain a possibility.

Secondly, it is sometimes said that punitive damages are inappropriate because no question of approval or disapproval is involved in discrimination cases.(41) This ignores the policy underpinning anti-discrimination legislation. Apart from protecting individual rights, the legislation operates as a spur for change to community attitudes.(42) Indeed, the international human rights regime which has operated as a significant catalyst for Australia's anti-discrimination laws is primarily focused on facilitating social, and attitudinal change, not just protecting individual rights. Even on an individual level, the nature of the subject matter of such cases is such that a respondent's actions may well be 'conscious, contumelious and calculated in its disregard of the plaintiff's rights' and so satisfy the criteria described by Lockhart J in Hall's Case.(43)

Thirdly, it would be a simple matter for legislatures to clarify whether these damages are available or not, perhaps in the course of clarifying in more general terms the nature of an anti-discrimination action.(44) If discrimination legislation is intended to have a normative effect on the community,(45) the awarding of punitive damages would seem a logical means to achieve this.

Statutory Ceilings on Damages

There is a complicating factor in discussing the adequacy of general damages in discrimination cases. In three jurisdictions, a statutory ceiling is imposed on the level of monetary payment that may be awarded to a successful complainant.(46)

The New South Wales Anti-Discrimination Act 1977 sets a ceiling of $40 000,(47) as does the Western Australian Equal Opportunity Act 1984.(48) Under the Northern Territory's Anti-Discrimination Act 1972, the ceiling is $60 000.(49)

Three points may be made about the limits.

The first is that a complainant who can plainly prove to have suffered discrimination and easily calculable economic loss in consequence is barred from redress if the loss exceeds the statutory limits. There are cases where a respondent, secure in the knowledge that the statutory limit applies, freely admits that the measure of damages to the complainant exceeds that limit.(50)

Secondly, where a complainant suffers economic loss (for example, lost wages) as well as anxiety and loss of self-esteem, the statutory ceiling may limit him or her to recovering only part of the economic loss and nothing at all for humiliation.(51)

Thirdly, the very existence of these limits must indicate what the legislatures consider to be the maximum economic worth of the most blatant discrimination. Logically, where such statutory maximums are (or become) inadequate there is a risk that the legislation will be seen as undervaluing the harm which the law itself seeks to address.

Putting a Dollar Value on Dignity

Calculation of general damages is difficult. Wilcox J in Hall's Case expressed the problem in this way:

His Honour went on to adopt May J's observation in Alexander v Home Office that:

The reference by May J to 'the policy and the results' which the law seeks to achieve is important. If unlawful discrimination is to be accorded the status of a serious transgression of acceptable community standards, the remedies which in general flow from that breach should reflect the degree of seriousness to be assigned.

In Lyon v Godley, the Western Australian Equal Opportunity Tribunal expressed the view that:

Similarly, in McCarthy v Metropolitan (Perth) Passenger Transport Trust (Transperth) it was noted that:

The dilemma of assessing the worth of injured feelings has been considered in other fields of law. In litigation involving injury to the person, amounts are often awarded for pain and suffering. The relationship between such damages and damages for discrimination is not easy to draw. There is a view that injury to feelings is less serious than physical injury,(56) but this does not take sufficient account of the deep trauma which may flow from discriminatory conduct.(57)

Comparison of Damages for Defamation and Discrimination

Of the torts commonly mentioned in the context of anti-discrimination law,(58) the closest comparison probably arises in defamation law, where hurt to feelings, and to reputation are routinely considered for compensation.(59)

The essential ingredient of defamation is the disparagement or impugning of a person's reputation and communication of that to a third person.(60) It may manifest itself in a variety of ways, ranging from ridicule to injuring personal or professional reputation.(61) Thus, a footballer who was described by a sportswriter as 'fat, slow and predictable' could properly bring an action for defamation because of the ridicule involved in that description.(62) In a similar vein, a mayor who was portrayed as accepting financial support from wealthy people, impliedly in return for favours, could sue for harm to his reputation.(63) The New South Wales Law Reform Commission, considering the meaning of reputation, commented:

In a case of discrimination, an individual's interest in his or her honour or dignity must be at least as worthy of protection and is arguably even more worthy of protection, given the wider community interest in the proper operation of anti-discrimination law. However, if measures of damages in defamation and discrimination respectively are any indication of relative worth placed by the legal system on each species of harm, it would seem that discrimination is the poor relation (see below).

There are other levels at which defamation and discrimination cover similar territory. One somewhat archaic example which illustrates both the intersection and the loading in favour of defamation is the principle concerning imputation of unchastity to a woman. This is considered:

It seems that in all jurisdictions in Australia, except Western Australia, 'where defamatory matter imputes that a woman is unchaste, regardless of whether it would be regarded as libel or slander, it is unnecessary to prove damage'.(66)

Ironically, this puts a woman who litigates in defamation for impugned chastity in a better position than a woman who brings a claim for sexual harassment under anti-discrimination statutes. The latter must show the causative link between the harassment and the damage.

The analogy between discrimination law and defamation law can never be exact, because defamation law concentrates on appraising reputation. Some consideration of the degree of dissemination of the defamatory material and of how others might regard the person who has been defamed are therefore critical considerations. But this does not invalidate the analogy. Windeyer J in Uren v John Fairfax & Sons described the harm done in defamation in the following way:

Similarly, it might be said that a successful complainant in a discrimination action gets compensation by way of general damages 'simply because' he or she suffered discrimination and that these damages ought to be a consolation as well as a vindication. The value to be placed on a person's right to participate in society free from discrimination is commensurate with and (indeed) not dissimilar to that person's right to protect his or her reputation in the eyes of that society.

Yet, in examining the range of damages awarded in discrimination cases and defamation cases, it would seem that, even in extreme cases of discrimination, a complainant cannot expect to receive, as compensation for humiliation and the like, the same level of damages as would be awarded for that purpose in defamation litigation. A parallel paradox is that the level of proof of humiliation, distress and the like required in a discrimination case may be higher than that required by a plaintiff in a defamation case.

In so far as it is possible to isolate and examine 'typical' relevant cases, the following examples illustrate the anomaly.

In Sutton v Ultimate Manufacturing,(68)a 1997 decision, the complainant, a receptionist and sales assistant, was dismissed after informing her employer that she was pregnant. She had no warning of the impending dismissal and, on the day of her dismissal, she was told 'We were hoping you would resign when you told us you were pregnant and we've just been putting off sacking you'. The complainant was then escorted off the premises. As a result of her dismissal, her health suffered. Her gynaecologist testified that, as a result of the stress of the dismissal, her child was born seven weeks prematurely, ten days after the dismissal. The complainant had to seek counselling. Among other things, the complainant submitted that the dismissal would affect her curriculum vitae. The Human Rights and Equal Opportunity Commission awarded the complainant $2 000 for the pain and suffering cause by the humiliation of being dismissed from employment and subsequent reduction in self-esteem. The Commission thought any detriment to her curriculum vitae would be modest.(69)

Compare the 1993 case of Packer v The Australian Broadcasting Corporation & Others (70). Here, the defendant television station ran a feature concerning failed entrepreneurs who enjoyed access to government leaders through financial patronage. A theme of the feature was corporate fraud. Footage was shown of the plaintiff dining with former Prime Minister Hawke. The plaintiff, whom the Court described as 'a spectacularly successful businessman' took offence at being compared to failed businessmen and to the imputation of his having engaged in corporate fraud. Although there was sufficient evidence for the Supreme Court of the Australian Capital Territory to conclude that the plaintiff was angry, agitated and distressed, there was no medical evidence of injury to feelings in this case. He was awarded, among other things, $40 000 for damage to reputation and a further $5 000 for injury to feelings.

In Hopper v Mt Isa Mines (71), a 1997 discrimination case, the complainant was the first female apprentice at Mt Isa mines. She suffered severe sexual harassment and sex-based discrimination for about two years. This included a pattern of offensive behaviour by male co-workers, including vulgar comments about her sex life, insinuations that she had a sexually transmitted disease and that she was a prostitute. As a consequence, the complainant developed a rash, suffered a breakdown and was placed on anti-depressants. The Queensland Equal Opportunity Tribunal awarded her $10 000 in general damages for hurt and humiliation.(72)

Compare Ninio v Southern Television Corporation P/L (73),a 1997 defamation case in which the lord mayor of Adelaide sued a television station because one of its reporters, in effect, accused him of receiving financial support from wealthy people. There were overtones of possible corruption. However, no economic loss was suffered by Mr Ninio, there was no medical evidence of distress and he won the next mayoral election. He was held by the District Court of South Australia to be entitled to general damages of $20 000, in order to 'signal to the community at large that his reputation had been vindicated'.

More serious cases of defamation are capable of generating substantial damages.

In Coyne v Citizen Finance Ltd (74),a 1991 defamation case, a property developer sued a finance and investment company for publishing a newspaper notice saying he was not and had never been their agent. The imputation was that the plaintiff had acted improperly in claiming to be an agent when not so authorised and that he had been fraudulently incurring debts on behalf of the investment company. There was no claim for special damages, but the plaintiff claimed to have suffered injury to his feelings. In support of this, he referred to telephone callers accusing him of being a liar, a crook and a cheat. The jury verdict of $150 000 was reduced on appeal by the Full Court of the Supreme Court of Western Australia to $50 000. But the High Court restored the jury's verdict, saying it was not excessive.

In Carson v John Fairfax & Sons Ltd(75), a 1993 defamation case, a jury awarded the plaintiff, a partner in a law firm, $200 000 and $400 000 respectively in general and aggravated damages for defamation contained in two newspaper articles. The defamation consisted of various imputations about him, essentially alleging that he had sought to persuade witnesses to alter testimony, sought to influence the Legal Aid Commission, and had attempted to pervert the course of justice. The New South Wales Court of Appeal set aside the verdicts as excessive and ordered a new trial on question of damages. The plaintiff appealed to the High Court, which dismissed his appeal by a four to three majority. In the High Court proceedings, it was pointed out by the defendant newspaper that the damages awarded approximated the general damages component of recent New South Wales verdicts in cases of quadriplegia. The majority judgement in the High Court (Mason CJ, Deane, Dawson and Gaudron JJ) upheld the Court of Appeal, noting that the three purposes of damages in defamation cases were consolation for personal distress and hurt, reparation for the harm done to reputation and vindication of reputation, but referring to the need to 'ensure a rational relationship between the scale of values applied in defamation and personal injury cases'(76). However, when the case was retried, the trial judge pointed to the difficulty in using personal injury cases as comparisons and the jury returned a verdict of some $1.3 million.(77)

As a consequence of this, the New South Wales Defamation Act 1974 now contains(78) a provision that, in determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State. Interestingly, the New South Wales Law Reform Commission rejected a suggestion that a ceiling be imposed upon damages in defamation cases.(79) The existence of a ceiling in discrimination cases in the same State represents an unfortunate and undesirable anomaly in the scale of social values.

Nexus between Damages and Medical Condition

It is perhaps also a matter of regret that, by contrast with defamation cases, in order for a complainant in a discrimination case to receive higher general damages, there has to be dramatic evidence of distress, such as a nervous breakdown or other serious detriment. Even then, the upper level of general damages for these types of cases is low, compared to defamation cases.

The highest reported award of general damages in a discrimination case appears to be $55 000, in Fares v Box Hill College of TAFE (80). There, the complainant, a teacher in a technical and further education college, suffered sex-based and ethnicity-based discrimination over a period of at least twelve months. As a consequence of the discrimination, she suffered severe distress, culminating in a nervous breakdown. It was observed by the Victorian Equal Opportunity Board, which heard medical evidence on the point, that she was unable to resume her occupation as a teacher and might well never be able to do so.(81)

Fares' case was decided in 1992. Recent similar cases indicate that the measure of damages for this type of severe discrimination have remained about the same or lower. By contrast with defamation cases, it also seems to be a condition of awarding this level of damages that medical evidence be produced.

In R v D & E Marinkovic (82), a 1996 decision, the complainant had contracted the Human Immunodeficiency Virus. The respondents, his neighbours, subjected him to severe vilification and abuse for about a year. The respondents' abuse of the complainant included yelling out from their balcony 'bloody poofter', 'gay faggot' and 'I don't want faggots living near my baby'. The complainant lived in Department of Housing premises and could not obtain alternative accommodation. As a result of the respondents' conduct, the complainant suffered stress, sleeplessness, suicidal tendencies and an exacerbation of his medical condition. The New South Wales Equal Opportunity Tribunal awarded general damages of $25 000 against each of two respondents (a total of $50 000).

In Rugema v J Gadsten P/L T/A Southcorp Packaging (83), a 1997 decision, the complainant had been subjected to racial abuse for about six years and a particularly severe abuse in two months of 1995. He was black African in origin. The discrimination took the form of frequent vulgar abuse involving reference to his colour and 'monkey' gestures. It resulted in the complainant suffering a major depressive disorder with significant pain, suffering and loss of enjoyment of life, constant fatigue, recurrent nightmares about the abuse, sweating, heart palpitation, fear of going outside and intense thoughts of suicide. Medical evidence was given that his working future was uncertain. He was awarded $30 000 in general damages by the Human Rights and Equal Opportunity Commission.

Compare Crampton v Nugawela (84). There, Mr Nugawela, a doctor, set up a computer technology firm. Mr Crampton was associated with a rival group. He wrote a letter imputing that Mr Nugawela falsely claimed to have the support of a professional body to which they both belonged. This was not so. Mr Crampton refused to apologise and, in the course of discussions among mutual professional colleagues, referred on two or three occasions to Mr Nugawela as 'the blackfella'. Mr Nugawela gave evidence that he suffered personal distress and anguish (though no medical evidence appears to have been led about this). He was awarded $500 000 in general damages for personal distress, damage to character and reputation and by way of vindication. The plaintiff included among his grounds for claiming aggravated damages the fact that he was referred to as a 'blackfella' and the Court accepted this without hesitation.

But aggravated damages are rarely awarded in discrimination cases. The case of Ritossa v Gray & Anor exemplifies the approach. There, the complainant, a receptionist/secretary had been attacked and sexually assaulted by her managing director. She was refused aggravated damages because:

By contrast, in defamation cases, aggravated damages are regularly awarded(86), especially where an apology has been absent or inadequate. It would seem appropriate to order aggravated damages in discrimination cases, at the very least in cases where the complainant has suffered a long period of discriminatory conduct, to the knowledge of and perhaps at the instance of the respondent.

The conservative levels of general damages in discrimination cases may be a manifestation of the tendency by tribunals to survey previous damages awards within the equal opportunity field, before arriving at an appropriate award in the case at hand. Although there is no formal system of precedent, there is clearly strong informal pressure exerted by earlier cases.(87)

As mentioned previously, early discrimination cases were decided in a climate of uncertainty, including uncertainty about how to classify a discrimination complaint and what damages were available. There was and is no statutory guidance and there seems to have been an apprehension about excessive awards of damages. This combination of factors appears to have resulted in a conservative approach to damages, which, coupled with the informal 'precedent dynamic', has compressed damages to this day.

The damage generated by an act of discrimination is, in a sense, impossible to compensate. But where a system of law provides an avenue for the payment of money to redress the hurt, then the level of damages awarded should not detract from the gravity of the wrong done.

Where ceilings are placed on the amount of available damages or where tribunals steer an overly conservative course, the trauma of discrimination is compounded by the sense that the legal system itself operates in a discriminatory way, placing one class of litigant above another. This is especially ironic when the instrument which generates the imbalance was itself designed to prevent and eliminate discrimination.

Endnotes

1. General Survey by the Committee of Experts on the Application of Conventions and Recommendations; ILO 75th Session 1988; Report III (Part 4B): Equality in Employment and Occupation; at para. 228.
2. For example, in the second reading speech to the New South Wales Anti-Discrimination Bill, the Hon N Wran noted, 'The protection of fundamental rights and freedoms of the individual is of paramount importance to governments. The principle that all human beings are born equal, have a right to be treated with equal dignity and a right to expect equal treatment in society is a principle firmly upheld by my Government'. [NSW Parliamentary Debates, Session 1976-77-78, vol., 128 at p. 3337].
3. See below the discussion under 'Statutory Ceilings on Damages'.
4. See below the discussion under 'Putting a Dollar Value on Dignity'.
5. See below under the headings 'Commonwealth Statutes' and 'State and Territory Statutes'.
6. For example, in the context of sexual orientation, the Victorian Equal Opportunity Act 1995 refers to 'lawful sexual activity', the Australian Capital Territory Discrimination Act 1991 refers to 'sexuality', while the New South Wales Anti-Discrimination Act 1977 refers to 'homosexuality'.
7. Examples are the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 and the Equal Employment Opportunity (Commonwealth Authorities) Act 1987.
8. The Workplace Relations Act 1996 is emerging as a regulator of equal opportunity practice in the workplace. Apart from regulation of industrial instruments (awards and so on) in an equitable and non-discriminatory way, the Act supplies a mechanism for challenging termination of employment which may have been for a discriminatory reason. Case law in this context is in a comparatively early stage of development, so has not been included in this study. However, it is probable that principles developed in 'mainstream' anti-discrimination law will filter through into the industrial arena: for example, see Sapevski & Ors v Katies Fashions (Australia) P/L (Industrial Relations Court of Australia, nos NI 3769, 3774, 3780, 3783, 3784, 3785 and 3787); unreported decision of Patch C, 8 July 1997.
9. The Commonwealth Act, the Human Rights and Equal Opportunity Act 1986, permits the making of a complaint on a number of grounds other than those covered by the other three Acts listed (for example, age). Such complaints can proceed to a conciliation stage, but there is no further power for the making of a determination (refer s. 11(1)(f) of the Human Rights and Equal Opportunity Act 1986).
10. In 1995, it emerged [Brandy v Human Rights and Equal Opportunity Commission (1995) EOC 92-662] that there was a problem with the method for enforcing decisions of the Human Rights and Equal Opportunity Commission. At the time of writing, an interim measure has been put in place to address the difficulty (see the changes made by the Human Rights Legislation Amendment Act 1995) and there are plans to address the problem in the long term (the Human Rights Legislation Amendment Bill 1997). However, it is expected that the remedial options will not change.
11. Section 9 of the Racial Discrimination Act 1975 does not refer to direct discrimination, but direct discrimination would be covered by s. 9(1); s. 9(1A) refers to indirect discrimination. Other references are:ss. 5, 6 and 7 of the Sex Discrimination Act 1984; ss. 5 and 6 of the Disability Discrimination Act 1992; s. 7, 24, 38B, 39, 49B, 49ZG; 49 ZYA of the Anti-Discrimination Act 1977 (New South Wales); ss. 29, 51, 66, 85a of the Equal Opportunity Act 1984 (South Australia); ss. 8, 9, 10, 35A, 36, 53, 66A, 66V the Equal Opportunity Act 1984 (Western Australia); ss. 10,11 of the Anti-Discrimination Act 1991 (Queensland); s. 8 of the Discrimination Act 1991 (Australian Capital Territory); ss. 14, 15 of the Sex Discrimination Act 1994 (Tasmania); ss. 8, 9 of the Equal Opportunity Act 1995 (Victoria). The Northern Territory Anti-Discrimination Act 1992 does not refer to indirect discrimination, but this does not specifically exclude it.
12. Provision of guidance would not have been unusual. In Allders International P/L v Anstee & Ors (1986) EOC 92-157, the Supreme Court of New South Wales (at p 76 556) referred to the Sex Discrimination Act 1975 (UK) which permits a claim to be made the subject of civil proceedings 'in like manner as any other claim in tort'.
13. (1986) EOC 92-157.
14. ibid., p. 76 556.
15. (1989) EOC 92-250 at p. 77 395.
16. (1995) EOC 92-674. Similarly, in McCarthy v Metropolitan (Perth) Passenger Transport Trust (Transperth) (1993) EOC 92-478, the same tribunal said (at p. 79 480):

[A]lthough it has been generally accepted that for the purposes of assessment of damages discrimination cases should be treated as a species of tort, it would be wrong to take a pedantic or technical approach. It is now well established, for example, that the proper scope of awards under discrimination legislation is both different from, and much wider than, the scope of damages awarded in tort. Perhaps the most obvious area in which this is apparent is that of humiliation, emotional distress (falling short of nervous shock), embarrassment, hurt feelings and the like...).

17. Section 24 of the Racial Discrimination Act 1975; s. 52 of the Sex Discrimination Act 1984; s. 71 of the Disability Discrimination Act 1992; s. 92 of the Anti-Discrimination Act 1977 (New South Wales); s. 27 of the Equal Opportunity Act 1984 (South Australia); s. 91 of the Equal Opportunity Act 1984 (Western Australia); s. 158 of the Anti-Discrimination Act 1991 (Queensland); s. 83 of the Discrimination Act 1991 (Australian Capital Territory); s. 44 of the Sex Discrimination Act 1994 (Tasmania); s. 112 of the Equal Opportunity Act 1995 (Victoria).
18. Section 24E of the Racial Discrimination Act 1975; s. 57 of the Sex Discrimination Act 1984; s. 76 of the Disability Discrimination Act 1992; s. 94 of the Anti-Discrimination Act 1977 (New South Wales); s. 95 of the Equal Opportunity Act 1984 (South Australia); s. 93 of the Equal Opportunity Act 1984 (Western Australia); s. 165 of the Anti-Discrimination Act 1991 (Queensland); s. 86 of the Discrimination Act 1991 (Australian Capital Territory); s. 48 of the Sex Discrimination Act 1994 (Tasmania); s. 117 of the Equal Opportunity Act 1995 (Victoria).
19. Section 25Z Racial Discrimination Act 1975; s. 81 of the Sex Discrimination Act 1984; s. 103 of the Disability Discrimination Act 1992; s. 113 of the Anti-Discrimination Act 1977 (New South Wales); s. 96 of the Equal Opportunity Act 1984 (South Australia); s. 127 of the Equal Opportunity Act 1984 (Western Australia); s. 209 of the Anti-Discrimination Act 1991 (Queensland); s. 102 of the Discrimination Act 1991 (Australian Capital Territory); s. 59 of the Sex Discrimination Act 1994 (Tasmania); s. 159 of the Equal Opportunity Act 1995 (Victoria); s. 88 of the Northern Territory Anti-Discrimination Act 1992.
20. s. 159(1) Equal Opportunity Act 1995 (Victoria).
21. s. 103 Disability Discrimination Act 1992.
22. (1979) EOC 92-002.
23. Daniels v Hunter Water Board (1994) EOC 92-626.
24. The Equal Opportunity Board decision: (1990)EOC 92-293.
25. The High Court Decision in Waters & Ors v Public Transport Corporation (1991) EOC 92-390, p. 78 671.
26. ibid.
27. s. 113 (iiia) and (iiib) of the Anti-Discrimination Act 1977 (New South Wales).
28. Mungaloon & Ors v Stemron P/L & Anor (1991) EOC 92-345; Peterson v Delacey & Ors (1991) EOC 92-348.
29. Decision of the Human Rights and Equal Opportunity Commission (Keim C) 10 September 1997, unreported.
30. Carson v John Fairfax & Sons Ltd (1993) 178 CLR; although it should also be noted that the continued role for vindication in defamation cases was queried in the New South Wales Law Reform Commission Report on Defamation (Report No 75 at paras 2.13ff).
31. Packer v The Australian Broadcasting Corporation decision of the ACT Supreme Court (Higgins J), 25 November 1993, unreported.
32. Refer Morrison and Sapideen, Torts: Commentary and Materials, 8th Edition, 1993, Law Book Company, pp. 76, 78, 479.
33. (1989) EOC 92-250 at p. 77 395.
34. ibid.
35. s. 96 of the Equal Opportunity Act (S.A.),s. 88 of the Anti-Discrimination Act 1992 (NT).
36. See Alexander v Home Office (1988)1 WLR 968, p. 975.
37. Najdovska v Aust Iron & Steel P/L (1986) EOC 92-176.
38. ibid., p. 77 396.
39. ibid., p. 77 396.
40. ibid., p. 77 397.
41. See the comment of the Equal Opportunity Tribunal of New South Wales (at p. 76 694) in Najdovska v Aust Iron & Steel P/L (1986) EOC 92-176.
42. See Thornton, M. The Liberal Promise, Oxford University Press, 1990:

The conceptualisation of discriminatory conduct as the product of individual bias constitutes the essence of the anti-discrimination model of legislation which has been adopted in Australia and elsewhere. If the conduct were to be dealt with, it is believed that its favourable resolution would thereby effect a change in the heart and mind of the discriminator. Furthermore, it is believed that this methodology must have a ripple effect throughout the society and be conducive to diminution of prejudice overall.

43. See for example Murphy Ramus P/L (1989) EOC 92-308, where the sexual harassment by the respondent was so severe as to amount to probable sexual assault.
44. In Hall's Case (above at p. 77 397), there is reference to U.K. legislation which supports the awarding of exemplary damages.
45. It certainly seems from the objects of various Acts (see for example s.3(d) of the Commonwealth Sex Discrimination Act 1984) that this is intended.
46. It seems that the limit in the New South Wales Act is intended to duplicate the limit on jurisdiction of the District Court (see NSW Parliamentary Debates, Session 1976-77-78, vol., 128, p. 3345) and that the Western Australian Act was based on the New South Wales Act (Refer W.A. Parliamentary Debates, Hansard, vol., 250, p. 1550) It is not clear what the origin of the Northern Territory limit is; it is not referred to in the Second Reading Speech (vol. XXXVII Northern Territory Hansard, p. 6530).
47. s. 113.
48. s. 127.
49. s. 88.
50. Thompson v Qantas Airways (1989) EOC 92-251; Holdaway v Qantas Airways (1992) EOC 92-430.
51. Holdaway v Qantas Airways, op.cit.
52. ibid., p. 77 411.
53. Hall's Case, op.cit.,p. 77 411; May's Case at (1988) 1 WLR 968 at p. 975.
54. (1990) EOC 92-287, p. 77 896.
55. (1993) EOC 92-478.
56. In Alexander v Home Office, op. cit.,for example, May J noted at p. 975 '[I]njury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or mind which may persist for months, in many cases for life'.
57. See for example Rugema v J Gadsten P/L T/A Southcorp Packaging (1997) EOC 92-887, which is discussed under the heading 'Putting a Dollar Value on Dignity'.
58. Other torts which have been mentioned are negligence and malicious prosecution (Allders Case, p. 76 556).
59. See also Thornton, M., The Liberal Promise, Oxford University Press, 1990, p. 198.
60. Lee v Wilson & Anor (1934) 51 CLR 276; R v Grassby (1988) 15 NSWLR 109.
61. Crampton v Nugawela (1997) ATR 81-416.
62. Boyd v Mirror Newspapers Ltd (1980) 2 NSWLR 449.
63. Ninio v Southern Television Corporation P/L (1997) Judgement No D3552 S.A. District Court (unreported).
64. New South Wales Law Reform Commission Report on Defamation, 1995, Report No 75.
65. Kerr v Kennedy (1942) 1 KB 409, 411 per Asquith J.
66. CCH, Australian Torts Reporter, p. 48 282.
67. (1966) 117 CLR 118 at 150.
68. (1997) EOC 92-891.
69. See p. 77 280. The complainant also received $8 333.34 in special damages, representing lost wages.
70. See above.
71. (1997) EOC 92-879.
72. The complainant also received $438 724.10 in special damages.
73. See above.
74. (1991) 172 CLR 211.
75. (1993) 178 CLR 44 .
76. op.cit., note 64.
77. Carson v John Fairfax & Sons Ltd (1994) 34 NSWLR 72.
78. s. 46A of the Act.
79. New South Wales Law Reform Commission Report on Defamation (op. cit., p. 122).
80. Fares v Box Hill College of TAFE (1992) EOC 92-391.
81. Fares, op. cit., p. 78 785.
82. (1996) EOC 92-841.
83. (1997) EOC 92-887.
84. (1997) ATR 81-416.
85. (1992)EOC 92-452, p. 79 231.
86. See for example, Packer's Case (above); David Syme & Co Ltd v Maher (1977) VR 516; Rigby v Associated Newspapers (1969) 1 NSWLR 729, Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474.
87. For example, Marrett v Petroleum Refineries (Australia) P/L (197) EOC 92-206; Cook v Lancet P/L (1989) EOC 92-257; WA EOC; Allegretta v Prime Holdings P/L (1991) EOC 92-364; Ritossa v Gray & Anor (1992) EOC 92-452; Aldridge v Booth (1988) EOC 92-222; McCarthy v Metropolitan (Perth) Passenger Transport Trust (Transperth) (1993) EOC 92-478.

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