Relief
229In relation to the claim of discrimination which the Tribunal finds has been made out, Mr Smith seeks various forms of relief under s 108 of the ADA including relevantly:
3) A finding under s 108(1)(b) that the complaint is substantiated in respect of the claim of unlawful disability discrimination by the Department's refusing to allow Mr Smith to perform duties and be paid on and after 9 August 2010 because he refused to sign the proposed RTW Plan;
4) An order under s 108(2)(a) for compensation for any loss or damage suffered by reason of the respondent's conduct that amounted to unlawful discrimination, including:
a) lost wages and superannuation from 6 August 2010 to 25 July 2011 of $84,415.32;
b) wasted accommodation expenses of $300;
c) lost benefits such as accrued sick leave, annual leave and long service leave for that same period; and
d) an amount for non-economic loss in the nature of hurt, humiliation and distress.
230The finding that the complaint has been substantiated in part should be made for the reasons already given above.
231As to the what compensation order might be appropriate, the Tribunal will first consider the general principles applicable in respect of s 108(2)(a). It will then deal with the question of compensation for loss of wages and related employment expenses. The final question which the Tribunal will address is compensation for hurt, humiliation and distress.
232Compensation orders are made under s 108(2) of the ADA which relevantly provides:
(2)If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(a)except in respect of a matter referred to the Tribunal under section 95 (2) [which does not apply in the present case], order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,
...
233It has been held by the Appeal Panel of the Tribunal In Commissioner of Police v Mooney (No 3) [2004] NSWADTAP 22 at [27] that this provision (as it was previously found in s 113(1)(b)(i) of the ADA in substantially the same terms) "vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an applicant in a discrimination case was suffered by reason of the respondent's conduct, but they are not controlling".
234The Appeal Panel in that case (at [28] ff) also found that assistance in the proper approach to take to the Tribunal's power to award compensation could be derived from the High Court's approach to the similar statutory compensation regime established by s 82 of the former Trade Practices Act 1974 (Cth), now s 82 of the Competition and Consumer Act 2010 (Cth) and s 236 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act). In relation to s 82 the High Court held in Henville v Walker (2001) 206 CLR 459 at [18] per Gleeson CJ:
Section 82 of the Act is the statutory source of the appellants' entitlement to damages. The only express guidance given as to the measure of those damages is to be found in the concept of causation in the word "by" [in the case of the ADA "by reason of"]. The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case."
235In relation to the particular circumstances of that case which involved a claim by a plaintiff to recover the amount of loss and damage suffered by the misleading and deceptive conduct of the defendant, it was also held at [13] per Gleeson CJ:
It will commonly be the case that a person who is induced by a misleading or deceptive representation to undertake a course of action will have acted carelessly, or will have been otherwise at fault, in responding to the inducement. The purpose of the legislation is not restricted to the protection of the careful or the astute. Negligence on the part of the victim of a contravention is not a bar to an action under s 82 unless the conduct of the victim is such as to destroy the causal connection between contravention and loss or damage.
236Note should also be taken of the comments of McHugh J at [106] where a similar point was made as follows:
If the defendant's breach has 'materially contributed' to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional.
237A further issue for consideration arises in claims for compensation under s 108(2)(a) where the complainant's conduct has caused or contributed to the loss, especially where that conduct could be characterised as an unreasonable failure to mitigate the extent of the loss suffered. Section 108(2)(a) does not expressly refer to a duty on the victim of discrimination to mitigate any loss or damage suffered. Nor does s 82 of the Trade Practices Act. Yet notwithstanding that lack of express reference, in s 82 cases it has been held that the requirement that the loss or damage be suffered "by" the contravening conduct imports with it the principle that loss or damage that could reasonably have been avoided by the claimant is not loss or damage recoverable under that section.
238In Murphy v Overton Investments Pty Ltd (2001) 112 FCR 182 at [47] it was held by Branson J (R D Nicholson J agreeing) in the Full Court of the Federal Court as follows:
.... However, an applicant will not recover under s 82 of the TPA loss or damage which he or she could reasonably have avoided (Finucane v New South Wales Egg Corporation (1988) 80 ALR 486 per Lockhart J at 519; Leigh Enterprises v Transcrete Pty Ltd (1984) ATPR 40-452 per Fitzgerald J at 45,234; Brown v Jam Factory Pty Ltd [1981] FCA 35; (1981) 53 FLR 340 per Fox J at 351). While the authorities speak of a duty to mitigate loss, the basis of that duty is to be found, in my view, in the statutory requirement that the loss or damage recoverable under s 82 be loss or damage suffered "by conduct of another person". Where any loss or damage could reasonably have been avoided, it is, in the context of s 82 of the TPA, to be regarded not as loss or damage suffered by reason of the conduct of another, but loss or damage suffered by reason of the unreasonable conduct of the applicant.
239This analysis was not dealt with on appeal to the High Court (Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388) and the High Court remitted the question of the assessment of damages to the trial judge with comments at [70] that were not inconsistent with what the Full Court had said.
240The approach to determination of loss and damage set out above was generally supported in a discrimination case under Federal anti-discrimination legislation by French J (as his Honour then was) in Hall v A & A Sheiban Pty Ltd (1989) 29 FCR 217 at 281 where it was held:
Having found the complaint substantiated, the President was empowered by s.81(1)(b)(iv) to make a declaration that Sheiban pay to each of the women "damages by way of compensation for any loss or damage suffered by reason of" his conduct. The damage which may be so compensated extends by force of s.81(4) to "injury to the complainant's feelings or humiliation suffered by the complainant". Its measure is to be found, not in the law of tort, but in the words of the statute which require no more to attract the exercise of the Commission's discretion than that the loss or damage be "by reason of" the conduct complained of. That is not to say that every adverse consequence, however remote, is to be compensated. For in this context, as in the wider reaches of the law, "causation is to be understood as the man in the street, and not as either the scientist or metaphysician would understand it" - Yorkshire Dale Steam Ship Co. Ltd v Minister of War Transport (1942) AC 691, 706 (Lord Wright). And within the cause-effect framework created by the words of the statute the selection of effects which give rise to liability may be influenced by policy and not merely by logic. In this regard the reasoning of Gummow J. in relation to s.82 of the Trade Practices Act 1974 is of assistance - Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd [1987] FCA 230; (1987) 75 ALR 271 at 279; see also Munchies Management Pty Ltd v Belperio unreported (Federal Court of Australia, Full Court, 30 November 1988) and Pavich v Bobra Nominees Pty Ltd unreported (Federal Court of Australia, French J. 4 August 1988).
... the measure of damages is to be governed by the statute and the rules applicable in tort can be of no avail if they conflict with it. It may be that while there are events for which the conduct complained of is a sine qua non, they would not be recognised in any practical sense as arising "by reason of" it. Exclusion principles analogous to concepts of remoteness, and failure to mitigate may then be seen to operate. In the end however, these are to be subsumed in a practical judgment of cause and effect. ...
241This was also the approach adopted by the Appeal Panel of the Tribunal in Commissioner of Police v Mooney (No 3) [2004] NSWADTAP 22 at [45] and [46] where it was held:
45In this case, where the claim was for loss of wages for a period of 12 months, it was quite appropriate for the Tribunal to consider whether some of that loss occurred by reason of Mr Mooney's failure to take reasonable steps to find an alternative source of income, rather than by reason of the Commissioner's unlawful conduct. In other cases it may not be appropriate for the Tribunal to take this approach for, as Spigelman CJ observed in Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232 at 245, "denunciation, punishment and deterrence", as well as compensation, are primary purposes of the AD Act. The need to denounce, punish or deter may sometimes render it inappropriate for the Tribunal to consider whether an applicant has reasonably mitigated his or her loss when determining the measure of damages to be awarded.
46When considering whether any of Mr Mooney's claimed loss occurred by reason of his own conduct rather than that of the Commissioner, the Tribunal applied the common law principle that "[w]hile an applicant has a duty to mitigate damages, the burden is on the respondent to prove that the applicant's refusal to mitigate his or her loss was unreasonable". It was appropriate to apply that principle in this case. ...
242Turning now to a consideration of the appropriate order to compensate Mr Smith for loss wages and other employment related entitlements, it should be noted that this is not a case where denunciation or punishment are necessary or appropriate. Nonetheless, the Tribunal did find that the Department unlawfully discriminated against Mr Smith by refusing to allow him to perform his duties and earn an income from 9 August 2010 because he refused to sign the proposed RTW Plan. The Tribunal also found that the Department would not have taken this step with another person in the same circumstances but with a disability other than Mr Smith's back disability. We found that the Department would after negotiation have not required a signed RTW Plan which included the pre-existing condition or would have negotiated another acceptable outcome with that person. If no suitable agreement could be agreed after proper negotiation, the Department may well have required the person to take unpaid leave at that point.
243In the circumstances, the Tribunal concludes that a period of loss of wages and employment benefit was caused by the Department's refusal to allow Mr Smith to work while he refused to sign the proposed RTW Plan. This period could be seen as reflecting the period that it would have been likely to have taken two parties properly negotiating to arrive at an acceptable RTW Plan and agreement to abide by the restrictions required because of the pre-existing condition. Another way of considering the issue is to note that after 9 August 2010 it was always within Mr Smith's power to effect a return to work at any time of his choosing if he and his doctor had either signed the proposed RTW Plan or agreed with the Department another suitable arrangement.
244The Tribunal has accepted that Mr Smith and Dr Sivaguru would have been prepared to sign a RTW Plan that only dealt with the psychological injury and Mr Smith had no objection to complying with the restrictions specified by Dr Sivaguru in respect of his back condition. Similarly, the Tribunal has already found that the Department would have accepted such an arrangement. Thus, all that was required in order for Mr Smith to be able to perform his duties and earn his income was for him and the doctor to sign the proposed RTW Plan, notwithstanding its perceived defects in form, or for Mr Smith to indicate clearly to the Department that he was prepared to abide by the restrictions nominated by Dr Sivaguru in order to accommodate his back condition in his work environment and that he and his doctor would also be prepared to sign a RTW Plan if it were limited to his psychological injury. This would have addressed the Department's legitimate concerns and the Tribunal finds that Mr Smith would then have been permitted to return to work by the Department. Thus, Mr Smith had the ability to resolve the impasse and so put a stop to any loss of wages or other employment benefits from which he was suffering.
245Was it unreasonable for Mr Smith not to take those steps and if so when did it become unreasonable? In this context it must be borne in mind that the obligation to co-operate in achieving Mr Smith's return to work was not a one-sided obligation. While the Department was required to co-operate with Mr Smith in developing his RTW Plan and returning him to work in August 2010, Mr Smith was also required to co-operate with the Department. The Tribunal is not satisfied that Mr Smith showed the co-operation required of him after it should have been apparent to him that he had to reach an arrangement with the Department that addressed his and his doctor's concerns and also met the Department's legitimate objectives.
246Mr Smith relied upon the fact that his treating doctor, Dr Sivaguru, was not prepared to sign the proposed RTW Plan in August 2010 because it dealt with both the psychological injury and the back condition. The Tribunal does not accept that this provides a justification for Mr Smith merely to say that until his doctor signed the plan, he would not sign the plan and it remained ever thereafter the Department's sole responsibility to resolve the issue.
247As far as the Tribunal can understand Dr Sivaguru's position she was apparently not willing to discuss the matter with the Department while the proposed RTW Plan related to both the pre-existing condition and the psychological injury. The doctor was not called to give evidence and the Tribunal was left in the position that the only apparent basis for Dr Sivaguru's refusal to sign was her perception that it was defective in form.
248After it became abundantly clear from the approaches the Department made to him and Dr Sivaguru later in 2010 and into 2011 that the Department was continuing to seek to resolve the issue but in a way which did not address Mr Smith's and Dr Sivaguru's concerns with the form of the proposed RTW Plan, a reasonable response on Mr Smith's part would have involved him articulating his substantive objections to the proposed RTW Plan (not just its perceived formal defect) and proposing a way forward which adequately addressed his and his doctor's concerns and the Department's objectives.
249The Tribunal finds that it should have been abundantly clear by about the time Ms Surace submitted the proposed RTW Plan to Dr Sivaguru on 22 February 2011, at the very latest, that the Department was still attempting to have Mr Smith return to work and that if that was to be achieved it would require Mr Smith to take reasonable steps on his part to propose a solution that satisfied his and Dr Sivaguru's objections as to the form of the proposed RTW Plan and at the same time met the Department's objectives. Mr Smith did not take these steps or seek to explore them with the Department. This failure was not reasonable on Mr Smith's part.
250Although the Department may have acted in a peremptory and even unreasonable manner in June 2009, by August 2010 this did not, in the Tribunal's view, justify Mr Smith failing to co-operate in planning his return to work after 9 August 2010. Mr Smith had raised his back condition in the context of his return to work from his psychological injury. His nominated treating doctor had included the requirement for a "Work place assessment [which was only related to Mr Smith's back condition] to be done" in her medical certificates provided in relation to the psychological injury from 14 May 2010. It was not unreasonable for the Department to seek to address both his psychological injury and his pre-existing back condition in planning his return to work. Nor was it unreasonable in the circumstances for the Department to include in the proposed RTW Plan restrictions relating to the back condition. While the Department continued to propose RTW Plans in late 2010 and early 2011 that were not materially different from what had been rejected in August 2010, it did not receive any assistance from Mr Smith in finding a resolution to the impasse.
251The Tribunal has found above that the Department would not have refused to accept a solution in which Mr Smith agreed in writing to comply with the back related restrictions and signed a RTW Plan limited to the psychological injury, if that had been proposed by Mr Smith and his doctor. Although the Department was inflexible in its approach to resolving the issue in August and the later part of 2010 and early 2011, the Tribunal is not satisfied that there was such unreasonableness on the Department's part after about February 2011 that would have justified Mr Smith's continued failure to take the reasonable steps open to him in order to end the impasse and return to gainful employment. This is so especially as it should have been obvious to him by that time that the Department was seeking to achieve his return to work and that all that was standing in the way was a resolution of RTW Plan issue.
252Thus, the Tribunal concludes Mr Smith suffered a loss of wages and employment benefits by reason of the Department's unlawful discrimination against him during the period up to about late February 2011 when it was arguably justifiable for Mr Smith not to have taken the steps reasonably available to him to resolve the impasse. Thereafter, however, the Tribunal finds that Mr Smith's loss of wages and benefits was not suffered "by reason of" the Department's unlawful discrimination against him but rather because of his failure then to take reasonable steps to achieve his return to work. Depending as it does on an assessment of when it should have been clear to Mr Smith that he had to take reasonable steps to resolve the impasse with Department, the determination of the period is not precise.
253Mr Smith's fortnightly gross salary during the period from August 2010 to February 2011 was $2908.09 gross and superannuation contribution was $261.73. Taking into account taxation and the impact of not being employed for that period upon leave and similar entitlements, the Tribunal believes that a figure of $38,000 is appropriate to compensate Mr Smith for loss of wages and other employment benefits for the period from 9 August 2010 until it should have been clear that to Mr Smith that if he was to return to work it was up to him to respond to the Department's attempts to achieve this with reasonable proposals that addressed both his and his doctor's concerns and the objectives of the Department. The loss thereafter should not be found to have been suffered "by reason of" the Department's discriminatory conduct.
254As to the claim for wasted accommodation expense, this was not pressed in final submissions. In any event, even if the evidence had established the payment of this amount and that Mr Smith forfeited it when he did not return to work at Parramatta in August 2010, the Tribunal would not be minded to have awarded such an amount as its forfeiture was not brought about by and was not "by reason of" the Department's unlawful discrimination.
255As to the claim for damages for hurt, humiliation and distress, the Tribunal accepts that Mr Smith was distressed by the Department's contravening conduct and may well have felt hurt and even humiliated by being made to wait in the foyer of the building on Monday, 9 August 2010. For substantially the reasons given above in relation to the loss of wages claims, however, the Tribunal is of the view that the hurt, humiliation and distress that was caused by or was suffered "by reason of" the Department's unlawful discrimination against Mr Smith was quite limited. That is not to say that there was not a lot of other hurt, distress and humiliation felt by Mr Smith arising out of the Department's conduct in the period 2008 to 2011. It is just that such hurt, distress and humiliation is in large measure not compensable under s 108(2)(b) in this proceeding.
256The Tribunal notes the comments made by a differently constituted Tribunal in Bonella v Wollongong City Council [2001] NSWADT 194 at [121] :
The complainants also sought general damages for humiliation and stress. All of the complainants gave evidence about the negative impact which the operation of the motor vehicle policy had had upon them. The respondent submitted that if there was to be any award of general damages the sum should be minimal. Damages for non-economic loss are always difficult to quantify. The English Court of Appeal in Alexander v Home Office [1998] 1 WLR 968 at 975 warned that in discrimination cases damages for non-economic loss should "not be minimal, because this would tend to trivialise or diminish respect for public policy." Any award of general damages in this case should include a component for the complainants' loss of opportunity, or chance, to be considered for a work related benefit in a non-discriminatory matter. In the circumstances of this case we believe that each complainant is entitled to an award of $7500 for general damages. The damages should be paid at the expiry of the statutory appeal period.
257The maximum amount awardable at the time of that decision was $40,000 not $100,000 as applies in the present case.
258In the circumstances, the Tribunal considers that an award of $2,500 is appropriate in this regard.