Case: Grovenor v Eldridge [2000] FCA 1574
Outcome: considered
The submissions of the respondent in relation to these outstanding issues may be summarised as follows: 1. It is pointless forcing an apology, hence no order should be made in this respect. 2. With respect to an order for damages, the following issues are relevant: a. on 16 November 2004 the applicant was not seeking to access "health services", but rather was seeking to collect a document he had previously requested b. on only one of the five occasions that are the subject of the complaint concerning Smithfield Community Health Centre did the applicant leave the Centre without receiving dental treatment. Accordingly, it is not the case that he was unable to access health services or was denied such access c. the real issue for the applicant was that he was denied something he perceived to be his right d. there is no basis to submit that there was a wilful disregard of the applicant's rights by the respondent e. there is no evidence that the applicant continues to feel hurt f. it does not follow that the respondent did not act in an exemplary fashion. 3. The authorities relied on by the applicant do not support the award of an amount as high as $40,000, and the majority of the cases relied upon by the applicant can be distinguished because, for example, in this case there is no suggestion of any personal injury, nor was the respondent's conduct malicious. Relevant comparators are Sheehan v Tin Can Bay Country Club [2002] FMCA 95 , Grovenor v Eldridge [2000] FCA 1574 and McNamara v Golonaise Pty Ltd [2006] QADT 7. 4. The evidence does not support a finding that the applicant was "publicly humiliated", particularly in relation to events at Smithfield Community Health Centre. 5. Given the bona fides of the respondent, the comparatively minimal impact upon the applicant and the number and nature of the events that comprise the complaints, general damages should be in the amount of $5,000 in total. 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. 25 In my view the damage to the applicant as a result of the five incidents at Smithfield Community Health Centre is at the lower end of the scale, comparable to the circumstances in Grovenor [2000] FCA 95 and Haar 184 ALR 83. I consider that the sum of $3,000 is proper compensation in these circumstances. Further, in light of the proximity in time of the occurrence of the five incidents the subject of complaint, I 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 19 November 2004 when the cause of action first arose in these proceedings. THE COURT ORDERS THAT: In respect of QUD324/2005: 1. The respondent is to pay the applicant damages in the sum of $5,000. 2. The respondent is to pay interest on damages of $5,000 at an annual rate of 5% to be calculated from 16 November 2004 pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth). In respect of QUD522/2005: 1. The respondent is to pay the applicant damages in the sum of $3,000. 2. The respondent is to pay interest on damages of $3,000 at an annual rate of 5% to be calculated from 19 November 2004 pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth). In respect of QUD324/2005, QUD522/2005 and QUD211/2006 1. The respondent is to pay the applicant's costs in QUD324 of 2005 and QUD522 of 2005 other than the applicant's costs associated with the Notice of Motion to exclude the evidence of Dr Unwin, to be taxed if not agreed. 2. The applicant is to pay the respondent's costs of the Notice of Motion to exclude the evidence of Dr Unwin, to be taxed if not agreed. 3. The applicant is to pay the respondent's costs that relate solely to the respondent's costs in QUD211 of 2006, to be taxed if not agreed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 14 August 2007 Counsel for the Applicant: D O'Gorman SC Solicitor for the Applicant: Miller Harris Counsel for the Respondent: C Murdoch Solicitor for the Respondent: Minter Ellison Date of Hearing: 9 August 2007 Date of Judgment: 14 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1236.html