IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
JUDGE: KATHLEEN MCEVOY ON RELIEF
Number of pages - 19
DATE OF HEARING: 5 and 6 October 2000
DATE OF DECISION: 10 October 2000
Mr Champion of Counsel, instructed by Maurice Blackburn and Co, solicitors for the complainant.
Mr McDermott of Counsel, instructed by Lewenberg & Lewenberg, solicitors for the respondents.
REASONS FOR DECISION OF INQUIRY COMMISSIONER
KATHLEEN MCEVOY ON RELIEF
On 12 September 2000 I handed down my reasons for decision in relation to complaints made by Ms Eva Wu, the complainant, and the Textile Clothing and Footwear Union of Australia ("the Union") against Mr Eli Cohen, the first respondent, and Express Embroidery Pty Ltd, the second respondent ("Express Embroidery"), in which the complainant alleged breaches of the Sex Discrimination Act 1984 (Cth) ("SDA"), and the Disability Discrimination Act 1992 (Cth) ("DDA"). I dismissed the complaint made pursuant to the SDA on the basis that it was not substantiated, but was satisfied the complaints pursuant to the DDA were made out, and that both respondents had engaged in unlawful conduct in relation to Ms Wu contrary to section 15(2)(d) of the DDA, that is, subjecting Ms Wu to detriment on the ground of her disability. I found the Union was not properly a complainant in relation to the DDA complaint.
I also made a finding on the basis of the evidence then before me that Ms Wu had suffered distress and humiliation as a consequence of the respondents' unlawful conduct, and that it was appropriate that the respondents pay to her damages by way of compensation in relation to this humiliation and injury to feelings.
I identified four different acts of discrimination contrary to the DDA:
1. the circumstances of Ms Wu's return to work in June 1994, when she was removed from her usual (pre-injury) job, and required to work on a different shift and on heavier machines;
2. the circumstances of her proposed return to work after her second injury where it was initially proposed she work a two hour shift from 11 pm to 1 am;
3. the circumstances of her actual return to work from 5 October 1994, when she was isolated and subjected to excessive and inappropriate supervision; and
4. the incident on 6 February 1995, when she and Mr Cohen were engaged in a workplace altercation, and Mr Cohen kicked her. Ms Wu did not return to work with the second respondent after this incident.
However, it had been agreed at the inquiry into the substantive aspects of these complaints that, if the complaints were found to be substantiated, there would be a separate inquiry to determine the quantum of compensation payable to Ms Wu. That hearing was conducted in Melbourne on 5 and 6 October 2000.
At that inquiry the complainant continued to be legally represented, for which leave had already been given (although Ms Wu was represented by a different counsel). It was agreed that evidence-in-chief would be led by affidavit, with witnesses subject to cross-examination and re-examination. An affidavit was sworn by Ms Wu and provided prior to the inquiry, and medical reports were provided by Dr Albert Kaplan and Dr Stanley Chau, psychiatrists, as witnesses for the complainant. Dr Nathan Serry, also a psychiatrist, was the only witness for the respondents.
2. RELIEF SOUGHT
Prior to this inquiry, the complainant advised through her solicitors that she sought the following determinations from this Commission:
(1) A declaration pursuant to section 103(1)(iv) of the DDA that the respondents pay to the complainant compensation:
(i) in relation to humiliation and injury to feelings;
(ii) in respect to medical expenses;
(iii) in relation to lost income;
(a) for lost opportunities to earn overtime in the period June 1994 to 6 February 1995;
(b) lost income in the period 6 February 1995 to August 1997;
(2) A declaration that the respondents pay the complainant's legal costs;
(3) That the respondents be jointly and severally liable for amounts to be paid;
(4) That pursuant to section 105 of the DDA the Commission recommend to the Attorney General that assistance be given to the complainant in respect to legal expenses incurred in relation to the inquiry.
At the inquiry, Mr Champion, counsel for the complainant, indicated that there was no separate application for medical expenses, as the only medical expenses incurred related to the costs associated with this inquiry. He also indicated that the legal costs thus far incurred had been paid for by the Union, and that no application would be made or sought on behalf of the Union in relation to section 105 of the DDA.
Mr Champion presented evidence and submissions in support of these applications.
3. THE LEGISLATION
Section 103 of the DDA empowers the Commission, where it is satisfied a complaint has been substantiated, to make a declaration that the respondent pay the complainant damages.
"103 Determination or other decision of the Commission
(1) After holding an inquiry, the Commission may:
(b) if it finds the complaint substantiated - so find and make a determination which, if appropriate, may include any one or more of the following:
(iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; ..."
Such a declaration is not of course binding or conclusive between the parties (see section 103(2) of the DDA).
Section 105 enables the Commission to recommend to the Attorney-General that assistance be given to a person who has made a complaint for expenses incurred by them in relation to the inquiry. This provision however refers to a recommendation of the Commission, rather than of the Inquiry Commissioner, so I do not make such a recommendation in this determination. If Ms Wu wishes to seek such assistance, then she may make application to the Commission for such assistance to be recommended to the Attorney-General.
4.1 The complainant's evidence
At this inquiry, Ms Wu gave further evidence, both in affidavit form and in person. She had already given evidence at the earlier inquiry into the substantive aspects of her complaints, and some of this evidence was also revisited. Ms Wu also relied on the evidence given at the earlier inquiry by her treating doctor from 6 February 1995, Dr Chiang, and called two other witnesses, Doctors Kaplan and Chau.
4.1.1 The evidence of Ms Wu
At this inquiry, Ms Wu gave sworn evidence without an interpreter.
In her affidavit evidence, Ms Wu referred to the distress she felt concerning the events at Express Embroidery. She stated that she was "shocked and distressed" at the events of 6 February 1995, and angry and frightened. She was referred to a psychiatrist following a medical consultation with Dr Chiang on the same day, and was diagnosed with depression and was prescribed medication. She continued to suffer depression and stress, although she stopped taking the medication as she did not like the side effects. Ms Wu then sought assistance from traditional Chinese medication but found this to be of little assistance either. She felt unmotivated, had lost her confidence, and could not concentrate. She felt she was no longer a happy person, and still felt preoccupied by these events.
She also felt the events affected her hopes, plans and relationships with her family in China. She felt she could not face them with her lack of success, and delayed making arrangements to bring her husband and son to join her in Australia. In July 1997 she and her husband divorced, and in 1998 her son joined her in Australia.
In May 1995 Ms Wu commenced a TAFE course, English for Health Professionals, with the purpose of working towards obtaining medical registration in Australia. This was a full time 12 week course, and Ms Wu completed it successfully. In September 1995 she sat an occupational English test, and passed two of the four sections of the test. She successfully completed this in March 1996. In April 1996 Ms Wu commenced a Multiple Choice Bridging Course in preparation for the Australian Medical Council's Multiple Choice Examination, which she attempted in October 1996 but was unsuccessful. She resat in April 1997 and passed. Ms Wu obtained employment in July 1997 with restricted medical registration and in October 1998 and March 1999 she completed other examinations which enabled her to obtain full registration as a medical practitioner in September 1999.
Ms Wu also provided information concerning her income and general pattern of work for the respondents during her employment at Express Embroidery. This included significant and regular overtime, although she asserted she had not been offered any overtime from the time of her first injury in May 1994 until the time she left on 6 February 1995.
Ms Wu said she had no source of income from the time she left Express Embroidery in February 1995 until she obtained medical employment in July 1997. She received a back dated payment to cover the period 7 February to 26 July 1995 in settlement of an action she had brought against the respondents in another forum. From that time she was in receipt of sickness benefits from Centrelink.
She told the inquiry that she had decided after the kicking incident on 6 February 1995 that she would not return to Express Embroidery as it was "too risky to work in that environment", and that she had not looked for another job, as she felt she was not ready to do so "physically and mentally". However, her general practitioner, Dr Liu, had at the end of 1994 suggested to her she pursue registration as a medical practitioner, and she decided to do this.
Ms Wu also told the inquiry she had come to Australia to start a better life, in particular for her son. She had wanted to escape a political system which she saw as oppressive and which had been particularly oppressive for her mother who had been imprisoned. However, she had not come as political refugee, and had undertaken intensive English lessons for the first year, as required by her visa conditions. She had decided in April or May 1995 to pursue her medical registration, having previously understood this was not feasible. She had taken out Australian citizenship in 1997.
Ms Wu agreed she would not have been able to qualify for medical registration if she had not been able to take time to study, both medicine and English. She agreed she would not have had this time, and therefore opportunity, if she had been employed on a full time basis. She is now working as medical officer and her salary for 1998-99 was $29,548.00, and for 1999-2000 (including fringe benefits tax) was $55,651.00 (indicated on group certificates which were made exhibits in the inquiry).
Ms Wu agreed that when she returned to work in June 1994 she was on restricted duties for two weeks (therefore with no overtime), and then after another two weeks she was again injured and off work until 5 October 1994. She was then part time and on restricted duties, and when she returned to full time hours she was still on restricted duties, and this was still the case on 6 February 1995.
She also agreed there were a number of other factors which contributed to her feelings of unhappiness, and perhaps depression. These included: poor health in 1995; continuing pain from her back, which also restricted her activities, and for which she had ongoing physiotherapy; separation from her family, which had caused anxiety and depression, until the reunification with her son in July 1998; the divorce from her husband and the delay in bringing her son to Australia; and the frustrations which she presently faces in what seems to her a stalling in her medical career, as she has been unable to obtain entry into a specialisation program which would enable membership of a College.
Ms Wu said she was unhappy with her present work, which she described as "clerical", and said she was disappointed and had no ambitions anymore. She said she no longer engaged in sport or other activity, and had no energy or interest in doing anything. She said she used to be a strong and confident person, but no longer was.
4.1.2 The evidence of Dr Kaplan
Dr Kaplan, a psychiatrist, examined Ms Wu in both November 1995 and September 2000. He provided reports to the inquiry in relation to both these consultations.
In November 1995, Dr Kaplan considered Ms Wu would have been unable to work in the previous months after the 6 February incident 1995, although he expressed the view that at that stage, that is, November 1995, she would have been capable of commencing sympathetic rehabilitative employment.
Dr Kaplan diagnosed Ms Wu as suffering from an adjustment disorder with anxiety and depression. His conclusion in September 2000 was as follows:
"In my opinion the discriminatory conduct of Express Embroidery and Mr Cohen as proven was a significant and probably the major factor in contributing to Dr Wu's psychiatric condition at the time of my initial examination of her and in the period following that examination. This discriminatory conduct is probably still a contributing factor albeit a minor one. The major factor contributing to her psychiatric condition at this time is probably her inability to develop a satisfactory medical career despite having gained an Australian medical qualification. Her chronic pain is probably also contributing to her psychiatric condition."
Dr Kaplan considered Ms Wu was made more vulnerable to future stressors by the trauma of the events at Express Embroidery. He agreed also that she was a vulnerable person to some degree prior to those events by way of the stresses which she had already encountered, including her background in China and her life (and that of her family) in the Cultural Revolution, the setting aside of her successful medical career in China, and her immigration to Australia and her separation from her family. However, he emphasised that Ms Wu had been a confident and optimistic woman, looking forward to a better life, when she came to Australia and that this was no longer the case. He believed that for Ms Wu to have successfully pursued her studies from 1995 to 1999, her condition must have improved to some extent in that time, but she still presented with the condition in September 2000. He believed the exacerbation of the condition in more recent times was because of her present work disappointments.
4.1.3 The evidence of Doctor Chau
Dr Chau examined Ms Wu in February 1995 on a referral from Dr Chiang who had been consulted by Ms Wu on the day of the kicking incident. He had later examined Ms Wu in January 1996. He provided reports in relation to each examination.
On his first examination of Ms Wu, Dr Chau diagnosed depression and prescribed amitryptylene which is an antidepressant. Dr Chau explained this is also prescribed for pain relief and sleeping difficulties, both of which had been complained of to him by Ms Wu. He did not arrange any follow up appointments. He saw Ms Wu's condition as one where regular appointments were unlikely to assist as it was not likely to show any improvement on a short term basis. He recalled Ms Wu as "very miserable" as she recounted the events relating to Mr Cohen.
Dr Chau said he considered Ms Wu has a collective impairment of 15% on the Australian Medical Association ("AMA") Guide when he saw her again in January 1996. He agreed this was an impairment at the bottom end of the scale, and indicated it meant she had diminished ability, although she could manage day to day tasks, but probably could not cope with work other than on a part time and light basis. He had seen little advancement in her condition in the intervening 12 months and said he had expected little.
Dr Chau was surprised at Ms Wu's intensive studies which had commenced in May 1995 and indicated he would have thought this difficult for a person with that condition, especially as Ms Wu's mental stamina was reduced. He expressed the view Ms Wu "must have been very determined, very hard working".
Dr Chau considered that if there had been a dramatic improvement in the quality of Ms Wu's life since 1996, this should have had an equally great impact on her self esteem. He agreed study would also have imposed stress on Ms Wu, and that other factors in her life, such as her isolation and separation from her family, as well as her back pain, would have affected her level of depression. He considered that disappointment in professional development could also exacerbate depression.
4.2 The respondents' evidence
The respondents called Dr Nathan Serry, a consultant psychiatrist, who provided a report and gave sworn evidence at the inquiry.
Dr Serry examined Ms Wu in September 2000, and diagnosed depression, indicating she was suffering from an adjustment disorder with anxiety and major depression as well as a chronic pain condition. In considering Dr Chau's determination that Ms Wu should be ascribed a 15% rating in the AMA tables, Dr Serry suggested 5% of this should be seen as primarily and directly attributable to the events in question.
Dr Serry indicated he believed Ms Wu did not have any formal psychiatric condition prior to her employment at Express Embroidery, and that any vulnerability did not amount to a pre-existing condition. However, he was satisfied she did now have a formally diagnosed psychiatric condition. Dr Serry believed there were a number of factors relevant to the development of this condition. These included her "demotion" in her job, the kicking incident, isolation in the store room and the regime of strict supervision. However, Dr Serry was of the view that the condition had developed "in the context of stressful experiences of her work at Express Embroidery". He described Ms Wu as an impressive person, but who was now, because of her depression "functioning below optimum", and that her current psychiatric symptoms were having a significant impact on her life.
5.1 The complainant's submissions
Mr Champion submitted the following:
* The primary principle governing compensation is to be found in the expression of Lockhart J in Hall & Ors v A & A Sheiban & Ors (1989) EOC 92-250 at 77,395:
"Generally speaking, the correct way to approach the assessment of damages in cases under [the Sex Discrimination Act] is to compare the position in which the complainant might have expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent".
He submitted this was not different from the principles expressed by French J in the same case, and that the same principles were equally applicable to such considerations of compensation under the DDA.
* In relation to Ms Wu's psychiatric injury, and humiliation and injury to feelings, Mr Champion submitted the evidence was clear in establishing this. Ms Wu developed depression immediately after the incident of 6 February 1995, which was permanent and persistent, and still continues. She had not suffered from this (or any psychiatric disorder) prior to the proven discriminatory events. The discriminatory acts caused the depression, although there may have been pre-existing vulnerabilities. He submitted that all the medical evidence, including that of the respondents, placed the events at Express Embroidery at the centre of the depressive disorder.
* The respondents have to take Ms Wu as they find her, applying the "egg shell skull" principle of tort analysis to discrimination law. He referred to the consideration of Wilcox J in Hall in support of this, and referred the Commission also to decisions of the Victorian Equal Opportunity Board in Fares v Box Hill College of TAFE (1992) EOC 92-391 at 78,785, Windeyer J in Purkess v Crittendon (1965) 114 CLR 164 at 171-2, and Box Hill College of TAFE v Fares (Supreme Court of Victoria, 28 August 1992, unreported, per Smith J). Mr Champion submitted Ms Wu may well have been vulnerable by reason of her particular circumstances, but the respondents had to take her as they found her in relation to the consequences of their unlawful acts.
* He submitted that it was not possible, and artificial, to attempt to separate out the elements of the causes of Ms Wu's condition. All that was necessary was to demonstrate the causal link to the discriminatory behaviour. Without the discriminatory events, the psychiatric condition was likely not to have occurred. There was none prior to 6 February 1995 and was one immediately after the events of that day.
* Mr Champion directed my attention to various other awards of damages for injury to feelings and loss of amenity by this Commission. He submitted that Ms Wu's condition should not be trivialised, as it was enduring and limiting. All the medical evidence agreed that there remained an impact on her amenity of life and capacity to work.
* In relation to economic loss, the respondents should not be beneficiaries of Ms Wu's determination and hard work in working during the period of her illness to obtain medical registration and thereby better her circumstances.
* Ms Wu could not "double dip" in relation to payments made by WorkCover (which took her payments of (non-overtime) wages to 26 July 1995) and sickness benefits, which she received until she obtained medical employment. However, I should not take payment of sickness benefits into account as there were statutory provisions which covered such aspects of awards of compensation. He referred me to Bennett & Anor v Everitt & Anor (1988) EOC 92-244 per Einfield J at 77,284 in support of this submission.
* Ms Wu had not received expected overtime since the time of her first injury and this should be reflected in the loss of income for which she claimed compensation.
* Ms Wu's economic loss ended in July 1997 when she obtained her next employment. However, Mr Champion conceded there was a weakening of the causal connection as the events causing the loss became more remote over time. He indicated the complainant sought compensation for economic loss up to 31 March 1996 when she commenced her medical studies in earnest.
* Economic loss for the period 7 February 1995 to 31 March 1996 was estimated by Mr Champion to be in the order of $20,362.07, including lost overtime, but excluding WorkCover payments in that period of $6,150.31. This calculation was based on Ms Wu's average salary in 1993 and 1994.
* In relation to legal costs, Mr Champion submitted I should not be bound by the determination of Heerey J in Australian Medical Council v Wilson (1996) 68 FCR 46 at page 66. He submitted I should take into account the protracted nature of the matter (12 days, in addition to 2 days for this aspect of the inquiry) and the largely unmeritorious nature of Mr Cohen's response.
* The respondents should be jointly and severally liable in relation to any damages payable by way of compensation.
5.2 The respondents' submissions
Mr McDermott for the respondents made the following submissions:
* In relation to the application for costs, I should make no such award consistent with the view expressed by the Federal Court in Australian Medical Council v Wilson. Mr McDermott submitted there had been no award of costs in the Commission under any of the legislation in relation to which it conducted inquiries since the decision in Wilson.
* No costs could be awarded in relation to costs incurred by the Union, as I had already found it was not properly a respondent to the matter now before the inquiry. The claim under the SDA had been dismissed and the Union is not a complainant to the DDA claim.
* Although the hearing had been protracted the responsibility was not only on the respondents, and this too was reflected in my earlier reasons in relation to the substance of the matter.
* In relation to the governing principles for the awarding of compensation, French J made a different analysis of this in Hall v Sheiban. He suggested the principles were not to be found in a tortious analysis, but in the words of the statute.
* The respondents were not to be responsible for the circumstances encountered by Ms Wu after her employment with Express Embroidery, and her complex circumstances compounded the "egg shell skull" issue in this case.
* Ms Wu has been fully compensated for loss of earnings up to 26 July 1995.
* Ms Wu's own evidence, supported by Dr Kaplan, was that she had no intention of going back to work after the events of 6 February 1995. Nor did she look for work after that date.
* Ms Wu had some duty to mitigate her economic loss but did not do so. The respondents had no control over this. The furthest the respondents' liability for Ms Wu's economic loss could be extended is to November 1995, when Dr Kaplan's evidence was that she was able to recommence work, although she had not been capable of work prior to then.
* Ms Wu focused all her energy and time from May 1995 on study in order to obtain medical registration. In May 1995 she commenced full time English studies for this purpose, and her studies continued until she obtained provisional registration and employment in 1997.
* Ms Wu made a deliberate investment of time in her studies. She would not have been able to undertake the requisite study if she had remained employed with the respondents. She had conceded this in her evidence. Her present and projected income from her employment is the fruition of this investment.
* The respondents were not liable for any economic loss on this basis.
* Nor was there any liability for loss of expected overtime. Ms Wu had not undertaken any overtime work from May 1994 because of her back injury, and there was no evidence there was any available for her in this period. Nor had there been any cross-examination of Mr Cohen on this matter.
* Ms Wu had been diagnosed with depression, but there were numerous other acknowledged factors which affected her circumstances and contributed to her depression and general unhappiness. These included: her mother's circumstances, her family separation, her divorce, her chronic pain, the diminution of physical activity and the stalling of her medical career.
* There is no evidence Ms Wu's difficulties in her medical career are related to her impairment.
* All the evidence suggests that Ms Wu's present medical condition is at the lower end of the scale, and is now largely a result of her disappointment at her present circumstances.
* The findings of discrimination have been made by reference to section 10 of the DDA, and the other non-discriminatory reasons of Mr Cohen should be a relevant factor in determining the quantum of damages payable.
* Mr McDermott submitted I should make no award for economic loss or for costs, and should consider an award in the range of $4,000.00 to $7,000.00, taking into account other similar matters decided by this Commission.
* I should take into account the payments Ms Wu had received in respect of WorkCover and sickness benefits should I make any award for economic loss.
6.1 General considerations
I accept the complainant's submission that the general considerations I should take into account in determining an appropriate award of damages by way of compensation in a case such as this are those set out in the judgment of Wilcox J in Hall & Ors v Sheiban & Ors (1989) EOC 92-250. It is important that any award ought not be minimal, as that may tend to trivialise the circumstances of the complainant, and in particular the unlawfulness of the respondents' acts that have led to the complainant's loss. That is, it is important to give effect to the policy of the DDA.
However, in this case, there are to my mind two other significant matters that need to be balanced in determining an appropriate award. The first is that Ms Wu suffered undoubted hurt and humiliation as a result of Mr Cohen's unlawful acts, but she has also has suffered a diagnosed medical impairment of a serious and ongoing nature as a consequence. The second is that although Mr Cohen acted in contravention of the DDA, and in many respects (leading to that finding) quite reprehensibly, my determination relied on section 10 of the DDA. I was satisfied Mr Cohen discriminated against Ms Wu among other reasons because of her disability. That is, some of Mr Cohen's motivation for his treatment of Ms Wu was not for reasons proscribed by the Act, but other factors. These included her Union activities (which is not one of the prohibited areas in the DDA), the threat which I am satisfied she made to him, and his general irritation at WorkCover claims. Section 10 of the DDA provides that if one of the reasons for the unfavourable treatment, even if it is not the dominating reason, is the complainant's disability, that is sufficient to render the act unlawful under the DDA. I have made no finding as to whether Ms Wu's disability was a dominating reason, as there is no need to do so because of section 10, but I was satisfied that the existence of a range of reasons, rather than the unlawful discrimination being the sole reason, is a factor I should keep in mind in considering an appropriate award.
I have accepted Ms Wu's evidence (given at the earlier hearing into her complaint) that she suffered humiliation, distress and hurt feelings in respect of each episode of discrimination by Mr Cohen. On the basis of the evidence I have heard in this hearing, I also accept that Ms Wu also developed the formally diagnosed psychiatric condition of adjustment disorder with anxiety and major depression as a consequence of the discrimination. This was diagnosed by Dr Chau shortly after the events of 6 February 1995. Ms Wu was referred to Dr Chau by Dr Chaing on 6 February 1995 because of his concern at the level of distress and disturbance with which she presented when Ms Wu consulted with him on the same day. All the medical evidence is in agreement that Ms Wu developed this condition as a consequence of an accumulation of the discriminatory acts of the respondents and the consequential stressful circumstances of the workplace, culminating with the events of 6 February 1995.
I am satisfied that this condition had a significant impact on Ms Wu's capacity to work, and on her generally amenity of life. I am satisfied she was unable to work at least to about the end of 1995 (Dr Kaplan's evidence), and that she suffered loss of energy, anxiety and loss of interest in her usual activities, which affected her health and social relationships, and loss of motivation. I am also satisfied that this condition still persists, although it is clear there are other and different stressors in her life now, and the causal relationship between the events of her employment at Express Embroidery and her psychiatric condition has become very stretched.
I am satisfied Ms Wu was subject to various stressors which made her somewhat vulnerable to the stress to which she was subjected at Express Embroidery. These included her decision to come to Australia, leaving her husband, son and family in China, the change in status and career prospects in Australia, the heritage of political and personal oppression she had encountered in China as part of the Cultural Revolution, and beyond, the ongoing separation from her family, and from May 1995, her back pain. The medical evidence is that it is likely all these factors predisposed her, or made her more vulnerable, to the effects of Mr Cohen's discriminatory behaviour.
After she left Express Embroidery, Ms Wu has also faced other issues which exacerbated her psychiatric condition, and which in themselves may have been sufficient to cause depression. These included the stress of intensive and uncertain studies, the chronic back pain which still continues, the continuing separation from her family and eventual divorce from her husband, the reunification with her son and the resumption of parenting, the drop in income as she depended on sickness benefits, and the more recent and continuing disappointment in the direction and advancement of her medical career. I am satisfied all these factors have had, and continue to have, an impact on Ms Wu's amenity of life and her capacity to recover from her psychiatric condition, but these are factors beyond the respondents' responsibility.
6.2 General Damages
Under this head the complainant claimed compensation in relation to both the psychiatric condition consequential on the discriminatory acts of the respondents, and for loss of amenity, that is, the hurt feelings, distress and humiliation as a consequence of the discrimination.
I accept the submission of the complainant that the respondents must take the complainant as they found her, that is, the application of the "egg shell skull" principle to a consideration of damages under the DDA. This is consistent with the approach of Lockhart and Wilcox JJ in Hall v Sheiban, and in my view is not inconsistent with the view expressed in that case by French J. I am of the view it is consistent with both the words and policy of the legislation that the perpetrator of unlawful discrimination should accept the real consequences of his or her discriminatory acts. In this case, the victim, Ms Wu, has suffered a psychiatric condition, as well as significant distress and general hurt and humiliation. She has, I accept, gone from being an optimistic, highly motivated and energetic woman, to one who is generally depressed, unmotivated and unhappy, with feelings of worthlessness, and a sense of the lack of value of the quite extraordinary journey on which she embarked when she left China for Australia which, to all intents and purposes, to an outsider, appears to have been most successful.
In respect of the immediate and proximate effect of the discriminatory acts on Ms Wu, the fact that there were other stressors making her vulnerable to the discrimination does not therefore enable the respondents to avoid liability for those effects of their unlawful acts.
I am not, however, satisfied that the respondents bear responsibility for the exacerbation or continuation of Ms Wu's unhappiness and psychiatric condition as a consequence of some of the new stressors to which she has been subject since she left the respondents' employ. These included the divorce, parenting issues and her disappointments in her medical career. I am not satisfied (and nor was it pressed in argument) that the respondents are liable for any increase in vulnerability Ms Wu has as a consequence of the events at Express Embroidery. The evidence before me is that her present circumstances are largely a consequence of her disappointment about the direction of her medical career.
In determining an amount of damages appropriate to compensate Ms Wu in respect of these consequences of the discrimination, I have taken note of other awards of compensation by this Commission. I have also borne in mind other issues: that there were additional motivations for Mr Cohen's behaviour; the persistence, seriousness and extent of Ms Wu's condition; her capacity and application in pursuing her medical career, as well as the disappointments she has faced in relation to it; and that the continuation of the condition seems to depend now on other factors, in particular her present work limitations. However, I have also taken into account as additional to the psychiatric condition, Ms Wu's real hurt and sense of humiliation at the acts of discrimination, as well as the lasting medical impact on her. In addition, I consider it relevant that I have made findings of four separate acts of unlawful discrimination over a nine month period.
Taking all these matters into account, I am of the view an amount of $12,000.00 is an appropriate amount to compensate Ms Wu in respect of her medical condition and her feelings of hurt and humiliation consequential on the respondents' unlawful acts.
6.3 Economic Loss
I have given careful consideration to the submissions made in respect of this claim.
I accept that Ms Wu did suffer some economic loss as a consequence of the discrimination culminating in the events of 6 February 1995. It is the case that she decided she would not return to work for the respondents, but I am satisfied this was because of the discrimination, not because she had at that time made a decision about pursuing medical registration instead of continuing to work. It is also the case that from May 1995 she was engaged in more or less full time study, with the ultimate intention of obtaining medical registration and capacity to practice. However, I accept she was not capable of work at least until about December 1995 (the medical evidence supports this) even though she was capable of reasonably intensive study.
At the same time, I accept the respondents' submission that Ms Wu made a choice about her activities, and chose to make an investment of time in pursuing study, which has led to her present work as a medical practitioner. It is my view that, in relation to a claim for economic loss, there is some obligation on Ms Wu to mitigate her economic loss by seeking remunerative employment. In my view Ms Wu did this by this investment of time in her study. However, she was incapable of so doing (in a way equivalent to paid work) until about the end of 1995, and the respondents cannot avoid their liability for that direct consequence of the discrimination in that it provided Ms Wu with an "opportunity" to study, when because of her illness she was not capable of working. I am of the view Ms Wu was likely to have chosen to pursue the medical registration and the study it entailed, but at a time of her own choosing, and probably not in circumstances of stress and without an income at all, other than sickness benefits.
I am satisfied that but for the discrimination, Ms Wu would have been earning an income from February 1995. I am of the view that from about the end of that year, when she was capable of returning to some employment (though not to Express Embroidery), Ms Wu had an obligation to act to mitigate her economic loss by seeking other employment. She did so, in a sense, by pursuing full time study.
I also accept the respondents' submission that there is no evidence before me that Ms Wu has a legitimate claim for loss of overtime. She had no overtime from May 1994 (when she suffered her first injury) and there was only a two week period (in June 1994) when she was on unrestricted duties and would have been available for overtime. There is no evidence as to why she did not undertake any overtime in that period.
In setting an appropriate amount of damages to compensate Ms Wu for the economic loss for which I am satisfied the respondents are liable, I have proceeded on the basis of the figures provided by the complainant as to her income in previous years, but without including any amount for overtime. I am satisfied Ms Wu should receive some compensation from 26 July 1995 (the date to which WorkCover payments were made) to December 1995 (the date from which Dr Kaplan was of the view she was able to resume sympathetic rehabilitative employment).
Taking all these factors into account, it is my view a figure of $5,000.00 to recognise Ms Wu's economic loss in this period is appropriate. A more precise figure is not capable of calculation, in my view, given the nature of her employment, nor appropriate, given that she was already engaged in study at this time.
In making this determination, I have taken the WorkCover payment into account, but not the sickness benefits received by Ms Wu. It is my view this issue is to be dealt with according to any processes Centrelink may put into place pursuant to the Social Security Act 1991 (Cth), should this be necessary under that legislation.
The complainant made an application for costs.
Legal and related expenses are not specifically provided for in the DDA. In addition, I am of the view that section 103(1)(iv) of the DDA does not extend to legal costs incurred by a complainant (AMC V Wilson, per Heery J at 66, in relation to analogous provisions of the Racial Discrimination Act 1975 (Cth)). I am satisfied similar considerations apply in relation to the DDA. Accordingly, I make no award for costs.
Pursuant to section 103(1)(b)(iv) of the DDA, I declare the respondents, Mr Cohen and Express Embroidery Pty Ltd, shall be jointly and severally liable to pay to the complainant, Ms Wu, the following amounts of damages as compensation for loss as a consequence of their unlawful acts:
(a) the sum of $12,000.00 for injury to feelings, hurt and humiliation, including the psychiatric condition she suffered as a consequence of the unlawful discrimination; and
(b) the sum of $5,000.00 for economic loss incurred as a consequence of the unlawful discrimination.
I declare the respondents to be jointly and severally liable for these amounts, and are to make payment to Ms Wu within 28 days of the date of this decision.
I certify that this and the preceding twenty (20) pages is a true copy of the Reasons for Decision of Ms Kathleen McEvoy, Inquiry Commissioner.
Date:10 October 2000