Case: Clarke v Catholic Education Offic e (2003) 202 ALR 340
Outcome: considered
The submissions of the applicant in relation to these outstanding issues may be summarised as follows: 1. The courts have ordered apologies to be made in appropriate circumstances. 2. Damages should be compensatory and not punitive. Damages in this case should be decided in a manner akin to general principles laid down in Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60 and Hall v Sheiban Pty Ltd (1989) 20 FCR 217. 3. In particular, the Court may order a respondent to pay damages by way of compensation for hurt feelings, humiliation and embarrassment suffered by the applicant as a result of unlawful discriminatory behaviour on the part of the respondent. In assessing the damages payable, in this case it is of relevance that: a. the applicant has a psychiatric disability b. the applicant was unable to access the respondent's health services on a number of occasions, something that would obviously cause distress to a person with the applicant's medical condition and needs c. the discrimination on the part of the respondent resulted in the applicant being unable to utilise the assistance of his dogs when he wished to access the respondent's services, even though the dogs assisted the applicant to alleviate the effects of his disability d. there was wilful disregard of the applicant's rights by the respondent e. the respondent is a State government, and therefore should exhibit exemplary behaviour f. the applicant had little option but to accept the behaviour/treatment dealt out to him by the respondent g. the hurt suffered by the applicant continues almost three years after the events in question. 4. Although each case turns on its own facts, a case such as Clarke v Catholic Education Offic e (2003) 202 ALR 340 is of some guidance. 15 There is no dispute that damages which can be awarded in these circumstances are compensatory, not punitive: Hall v Sheiban 20 FCR 217 at 282, Clarke 202 ALR 340 at 360. As Lockhart J pointed out in Hall v Sheiban at 239 damages awarded should be based on a comparison of the position that the applicant would have been in if he had not been subjected to the discriminatory acts of the respondent, with the position he is in as a result of those acts. 17 Clearly each case turns on its own facts, and Counsel acknowledged that damages awarded in other cases are of limited use only. Indeed, a review of cases where damages have been awarded in respect of discriminatory conduct reveal a considerable variance in the sums awarded. Relevant cases include the following: &#8226; in Clarke 202 ALR 340 a deaf child who had been refused enrolment at a religious school thereby removing him from his primary school peers and friends at the time of his transition to high school was awarded damages of $20,000 plus interest. Madgwick J was of the view that the child would have been distressed and confused by the events, and viewed the respondent's conduct as hurtful, but that the harm to the child was likely to have been transient and not extreme. The sum of $20,000 was described by Sackville and Stone JJ on appeal as "relatively modest": Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 149 &#8226; in Commonwealth of Australia v Evans [2004] FCA 654 an intelligence analyst who was transferred to a position with lesser responsibilities because she was perceived as showing insufficient commitment to her work because she took time off to care for her sick child was awarded damages of $12,000 &#8226; in Leslie v Graham [2002] FCA 32 where the applicant was subject to extreme sexual advances by her employer in the middle of the night and subsequently suffered emotional trauma, the court awarded her $16,000 &#8226; in Sheehan [2002] FMCA 95 , a member of a club who was prevented from entering the club with an assistance dog not on a lead was awarded $1,500 damages &#8226; in Grovenor [2000] FCA 1574 a woman with a guide dog who was the subject of verbal abuse by the owner of a furniture store, and who subsequently suffered a skin rash related to her distress, was awarded $1,000 damages &#8226; in Haar v Maldon Nominees (2000) 184 ALR 83 a woman with a guide dog who sat in the "party area" of McDonalds, and was told by a member of the staff that it would be better if she sat elsewhere in the restaurant because of the presence of her dog, was awarded $3,000 damages in circumstances where the Federal Magistrate was satisfied that the incident had caused the applicant to have diminished self-worth which continued three years after the incident. 21 In my view the effects of this incident on the applicant cannot be compared with, for example, serious interruption to education ( Clarke 202 ALR 340) or emotional trauma and career impact as a result of sexual harassment ( Leslie [2002] FCA 32). However, in my view the public humiliation and embarrassment occasioned to the applicant was clearly more patent than in either Grovenor [2000] FCA 95 or Haar 184 ALR 83. I consider the sum of $5,000 appropriate compensation, and order that interest at the annual rate of 5% be payable on this sum pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth) to be calculated from 16 November 2004 when the cause of action arose.