Airflite Pty Ltd v Goyal - [2003] WASCA 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: AIRFLITE PTY LTD -v- GOYAL [2003] WASCA 45

CORAM: PULLIN J

HEARD: 28 JANUARY 2003

DELIVERED : 18 MARCH 2003

FILE NO/S: SJA 1102 of 2002

BETWEEN: AIRFLITE PTY LTD
Appellant
AND
ARUN GOYAL
Respondent

Catchwords:

Appeal - When appeal lies - "Question of law" - Meaning

Discrimination legislation - Discrimination on grounds of impairment - Whether employer could show that the applicant for employment would be unable to carry out work

Legislation:

Equal Opportunity Act 1984 (WA), s 66B, s 66Q, s 123, s 127, s 134(1)

Result:

Appeal allowed in part
Quantum of award reduced

Category: A

Representation:

Counsel:

Appellant: Mr M H Zilko SC & Mr G E Bull
Respondent: Mr P J Vincent

Solicitors:

Appellant: Chamber of Commerce and Industry of Western Australia
Respondent: Sussex Street Community Law Service Inc

Case(s) referred to in judgment(s):

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Cvetkovski v Cleary Bros (Bombo) Pty Ltd (1999) EOC 93‑032
Grimshaw v Dunbar [1953] 1 QB 408
Haines v Leves (1987) 8 NSWLR 442
Hall v A & A Sheiban Pty Ltd (1989) EOC 92‑250
Jamal v Department of Health (1988) 14 NSWLR 252
Madafferi v City of Northcote (1993) EOC 92‑512
Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1
Norbis v Norbis (1986) 161 CLR 513
Secretary Department of Health v Jamal (1987) EOC 92‑183

Case(s) also cited:

Boldra v Metropolitan (Perth) Passenger Transport Trust (1992) EOC 92-445
Brown v Moore (1996) EOC 92-835
C v Australian Telecommunications Corporation (1992) EOC 92-437
Capodicasa v Herald and Weekly Times Ltd (1999) EOC 92-969
Churchill v Town of Cottesloe (1993) EOC 92-503
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (2000) EOC 93-037
Evershed v City of Geraldton (1995) EOC 92-745
Holdaway v Qantas Airways Ltd (1992) EOC 92-395; (1992) EOC 92-430
Howard v Northern Territory of Australia (1995) EOC 92-672
Johnstone v Department of Conservation & Natural Resources (1993) EOC 92-533
Knable v Minister for Education (2000) EOC 93-067
McCarthy v Metropolitan (Perth) Passenger Transport Trust (1993) EOC 92-478
McNeill v Commonwealth of Australia (1995) EOC 92-714
O'Neill v Borass (1989) EOC 92-266
O'Neill v Steiler (1994) EOC 92-607
Pickering v Kevron Pty Ltd (1995) EOC 92-726
Ritossa v Gray (1992) EOC 92-452
Woodhouse v Wood Coffill Funerals Pty Ltd (1998) EOC 92-942
X v Commonwealth of Australia (1999) 200 CLR 177
X v McHugh (Auditor-General for the State of Tasmania) (1994) EOC 92-623

PULLIN J: On 6 September 1999, the appellant refused to employ the respondent as an aircraft handler on grounds that he had a disability to his lumbar spine and an abdominal condition, which meant that he was unable to perform all of the duties of the position.
The respondent commenced proceedings claiming that the appellant unlawfully discriminated against him on the ground of impairment, contrary to s 66B(1)(b) of the Equal Opportunity Act 1984 (WA). The respondent succeeded before the Equal Opportunity Tribunal, which awarded the respondent $12,000 in damages.
The appellant appeals against that decision.

Undisputed Facts

The respondent applied for, and was offered, a position with the appellant as an aircraft handler on condition that he must pass a standard medical examination conducted by a registered medical organisation chosen by the respondent.
A medical examination was conducted on 4 September 1999 by Dr Crawford from Joondalup Industrial Health. Prior to the examination, the respondent was asked to complete a medical questionnaire. Question 1 of s 2 of the questionnaire requires the patient to indicate whether he suffers, or has ever suffered, from any of the problems subsequently listed. The respondent ticked "yes" in relation to the following items:
1.19 Backpain, treatment on the spine?
1.21 Any bone, joint, muscle or tendon trouble?
1.24 Eye trouble, blurred vision?
Question 3 required the patient to give details of any "yes" answer. The respondent wrote "occasional back‑pain". Question 7 asked the patient to list types of regular sport/exercise undertaken. The respondent listed walking and gardening.
In his report of the examination, Dr Crawford has noted under the heading "Thoracolumbar Spine" that the findings were not normal and that neither the flexion nor extension of the spine were pain free. The following handwritten note appears under the further heading "If Abnormal Specify": "Unable to go below 20 cm from toe. Stiff lumbar spine – loss of lordosis". Straight leg raising is recorded in the report as 70 degrees bilaterally.
Under the heading "Further Comment", Dr Crawford wrote the following:
"Poor muscle tone – stiff thoraco‑lumbar spine - ?ventral hernia – possible ascites"
There is a further notation which is difficult to decipher which may read "?chronic problem".In relation to "Posture", Dr Crawford has written "poor abdominal tone".
In a document headed "Fitness Certification", Dr Crawford ticked the box which stated "I also believe he/she … would not be able to perform all of the duties related to the position" and also the box which stated "is at increased risk for the position".
There is undisputed evidence that Dr Crawford had been carrying out medical examination of potential employees since late 1997 or early 1998; that he was familiar with the tasks of an aircraft handler, because he had been out to the site and watched what was involved in that employment; that Dr Crawford had not previously failed an applicant; that he was thorough with his work; and that, according to a director of the appellant, the company had a good record on "the injuries side and possibly it's because of some of the selection criteria that we have put in place, which includes Dr Crawford".
Following the examination by Dr Crawford on 4 September 1999, Dr Crawford contacted Mr Constantinides, the appellant's director of engineering, to advise of the outcome of Dr Crawford's examination of the respondent.
There was no evidence disputing Dr Crawford's evidence that he informed Mr Constantinides that the respondent would not be able to perform all the functions of the position.
As a result, when the office opened on Monday, 6 September 1999, Mr Constantinides, who was the decision‑maker, called Mr Dobson, the occupational health and safety manager, and asked him to have another discussion with Dr Crawford to find out whether his opinion was the same, to check that Dr Crawford had not changed his mind, and that if the condition should be the same as was described to Mr Constantinides, then the respondent should not be employed. As a result, based on the fact that the respondent had not passed the medical, the respondent was told he was unsuccessful in his employment application.
In the telling, this seems a very strong case on the merits to support a finding that the employer came within the provisions of s 66Q of the Act which, in effect, provides that it is not unlawful to discriminate on grounds of physical impairment if the applicant for the job will not be able to perform the job. This legislation has to be applied in the workplace. An employer is not expected to gather facts and evidence as though it was to engage in a lengthy tribunal hearing. In this case, the employer had taken steps to employ a medical practitioner to become familiar with the work performed on site, and reliance was placed on the opinion expressed by the doctor. The doctor was highly regarded, and the employer acted on his advice. The employer took care to have potential employees fill out a questionnaire, and required the medical practitioner to certify in writing whether the potential employee was not able to perform the work required of him. The doctor had taken the unusual step of ringing Mr Constantinides to express his opinion that the respondent would not be suitable for the job. Those steps would seem to be more than reasonable, in the circumstances, to gain sufficient information to make a decision. It is strongly arguable that the weight of evidence favoured a finding of fact that the employer properly concluded that the respondent would be unable to carry out the work.
I am not, however, entitled to review the case to correct errors of fact. Parliament has only permitted an appeal on a question of law.
Section 134(1) of the Act reads:
"A party aggrieved by a decision or order made under section … 127 … may appeal to the Supreme Court on a question of law …"
A person may be aggrieved on a question of law if, and only if, the decision in relation to that question is wrong. See Jamal v Department of Health (1988) 14 NSWLR 252 at 270. Errors of fact cannot be corrected by this Court on appeal. If the Tribunal misdirects itself as to the law, then that is an error of law and will be reviewable on appeal: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156‑157. The purpose of establishing a specialist Tribunal and of confining appeals to questions of law, is to provide "a high measure of immunity from review" to determinations of the Tribunal: Haines v Leves (1987) 8 NSWLR 442 at 459.
This Court may offer relief in relation to findings of fact, only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the law. Those errors amount to errors of law: Haines v Leves (supra) at 470; Jamal v Department of Health(supra) at 270.
Otherwise, this Court is not permitted to review a finding of fact made by the Tribunal, even if it appears perverse or contrary to the overwhelming weight of evidence. Further, this Court may not review findings on the facts even if no reasonable person could have reached the decision made, and even if the reasoning by which the Tribunal arrived at its conclusion was demonstrably unsound: Azzopardi's case (supra) at 155‑156 and Haines v Leves (supra) 469‑470. So, in Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1, a Judge's description of Registrar's findings "as such as to strain credulity" and reliance on certain factors as "nonsensical", were not enough to allow the Judge to conclude that there was any error of law.
This type of limitation on appellate jurisdiction has been the subject of criticism in New South Wales. See Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 16; and Haines v Leves (supra) at 469. This criticism is a matter for Parliament, and not for this Court, to consider.
Before I refer to the law which is relevant to this case, I should mention a number of preliminary matters which are not in contention. They are:
(a)Equal opportunity legislation is to be found in all of the mainland States and Territories and in Tasmania. The legislation is not uniform.
(b)The New South Wales anti‑discrimination legislation concerning physical handicaps was first passed in that State following a 1979 report of the NSW Anti-Discrimination Board. See Jamal v Department of Health (supra) at 257. I refer to the New South Wales legislation in particular because of the appellant's reliance on the judgment of Hunt J in Secretary Department of Health v Jamal (1987) EOC 92‑183; as to which see below.
(c)Provisions dealing with this same subject were introduced in the Equal Opportunity Act 1984 (WA) in 1988.
(d)The Commonwealth passed the Disability Discrimination Act 1992 dealing with the same subject.
(e)In 1994, New South Wales made amendments to its legislation so that its legislation was identical to the Commonwealth legislation (in relation to the exception which provides that discrimination is not unlawful if the applicant for the job is not able to carry out the "inherent requirements" of the job).

Relevant Provisions of the Equal Opportunity Act 1984 (WA)

Section 66B(1) reads:
"It is unlawful for an employer to discriminate against a person on the ground of the person's impairment –
(a)…
(b)in determining who should be offered employment …"
Section 66Q(1) reads:
"Nothing in section 66B(1)(b) … renders unlawful discrimination by an employer, principal or person against a person on the ground of the impairment of that person if it is reasonable for the employer, principal or person to conclude, on such grounds as having regard to the circumstances of the case and having taken all reasonable steps to obtain relevant and necessary information concerning the impairment it is reasonable for the employer, principal or person to rely on, that the person with the impairment because of that impairment –
(a)would be unable to carry out work reasonably required to be performed in the course of the employment or engagement concerned …"
Section 123 provides:
"Where by any provision of this Act, conduct is excepted from conduct that is unlawful under this Act … the onus of proving the exception in any inquiry lies upon the respondent."
A conclusion by an employer which is discriminatory because it falls within s 66B(1)(b) will be, to use the language of Samuels JA in Jamal's case (supra) at 265, "cleansed of fault" by the operation of s 66Q if the employer can satisfy its requirements.

Grounds of Appeal

The appellant's first ground of appeal reads in part:
"In finding that the Appellant's refusal to employ the Respondent as an aircraft handler was unlawful, the Tribunal erred in law in failing to properly construe the meaning and effect of section 66Q(1) of the Equal Opportunity Act 1984 ('the Act') …
PARTICULARS
…
(iii)The Tribunal failed to identify the matters which the Appellant was required to establish under section 66Q(1)(a) in order to invoke the protection thereof, namely,
(a)whether the Appellant subjectively held the view that the Respondent would be unable to carry out work reasonably required to be performed by him as an aircraft handler; and
(b)whether the grounds upon which the Appellant relied in holding the above view were objectively reasonable;
(iv)By failing to identify the above matters the Tribunal misdirected itself as to whether the Appellant was entitled to the protection of section 66Q(1)(a) of the Act; …"
This ground involves the contention that the Tribunal should have directed itself by reference to, and in accordance with, Hunt J's decision in Secretary Department of Health v Jamal (supra). It is therefore necessary for me to refer to this decision and to what was said by Hunt J in that case. In New South Wales, the statutory exemption exempting a person from a finding of unlawful discrimination on the grounds of impairment or disability at the time of Jamal's case, was s 49I(1) of the Anti‑Discrimination Act 1977 (NSW), which read:
"49I(1) Nothing in section 49B(I)(b) … renders unlawful discrimination by an employer … against a physically handicapped person on the ground of his physical impairment if, with respect to the work required to be performed in the course of the employment … concerned, it appeared to the employer …, on such grounds as, having regard to the circumstances of the case, it was reasonable to rely, that the physically handicapped person, because of his physical impairment–
(a)would be unable to carry out that work, …"
I will quote from Hunt J's judgment the passages which the appellant relies upon, and which are self-explanatory.
"The employer must also show that it so appeared to him upon such grounds as, having regard to the circumstances of the case, it was reasonable to rely. There are two distinct issues here. The first is whether the employer subjectively had that particular state of mind. The second is whether the grounds upon which he relied were objectively of that particular description. It is important that the two issues not be confused." (Page 76,765).
Hunt J continued:
"The issue which must be determined here is the existence of the particular state of mind on the part of the employer - - whether he subjectively held the particular view of which he has given evidence. It is not whether that particular state of mind was itself objectively reasonable, or whether it was objectively reasonable having regard to the circumstances of the case. The question of objective reasonableness in those circumstances as such does not arise until somewhat later, when the grounds upon which the employer relied in forming that view are examined.
It may be, of course, that in the particular case the Tribunal could conclude that the existence of a particular view of which an employer has given evidence was so unreasonable that it is unable to accept the honesty of that evidence that he did hold that view: cf. Associated Provincial Picture Houses Ltd. v Wendesbury Corp (1948) 1 K.B. 223 at pp. 229‑230. That is a justifiable line of reasoning in considering whether it did in fact so appear to the employer that the complainant would be unable to carry out the work required to be performed or would require services or facilities in order to do so which could not reasonably be provided or accommodated.
…
It is always dangerous to determine whether a person honestly held a view by evaluating the reasonableness of the view itself: cf. Turner v. MGM Pictures Ltd. (1950) 1 All E.R. 449 at p. 461. Still less is it any part of the Tribunal's function to decide whether the employer acted reasonably having regard to the circumstances of the case in deciding not to offer employment to the complainant. That is not the issue raised by sec. 49I at all.
It is dangerously productive of serious error to pose the issue which the Tribunal must determine under sec. 49I in any way which blurs the very clear distinction which the section itself accepts between the reasonableness of the employer's reliance upon certain grounds in forming a particular view, having regard to the circumstances of the case, and the reasonableness of the view which was formed by the employer in reliance upon those grounds.
It is the existence of that distinction which removes from the Tribunal the right to substitute its own view for that formed by the employer."
On appeal, the decision of Hunt J was upheld. The Court of Appeal decided that he had erred in one respect, which is irrelevant for present purposes.
Kirby P said at page 262:
"As Hunt J pointed out, the attention of s 49I is addressed not to whether the physically handicapped person is in fact unable to carry out the work required (or in order to carry it out would require services or facilities). Instead, by its language, it is addressed to whether 'it appeared to the employer' that it was so."
Samuels JA agreed with Kirby P and added at 265‑266:
"The employer's state of mind, as Hunt J pointed out, is vital to the application of s 49I(1)(a). By rejecting the applicant the employer has already made a judgment about his or her capacity to carry out the work, and has formed the view (that is, it has already appeared to the employer) that the applicant because of his or her physical impairment could not do it. First, the employer must establish that he did in fact hold that view. Proof of this issue requires determination of the employer's subjective state of mind. I agree with Hunt J that the reasonableness or otherwise of the employer's view is irrelevant save as a means of assessing whether the view asserted was honestly held."

Conclusion on Ground 1

Section 66Q(1) of the Equal Opportunity Act 1984 (WA) does not use the same language as the section under consideration in Jamal's case. The local section does not require the Tribunal to consider whether "it appeared to the employer" that because of the impairment, the applicant would be unable to carry out work reasonably required to be performed. However, it is necessary for the Tribunal to make a finding about whether or not the employer "concluded" that the person with the impairment, because of that impairment, would be unable to carry out work reasonably required to be performed in the course of employment. So in both pieces of legislation, the first task the Tribunal must carry out is to find out what decision was reached by the employer. The conclusion under consideration will, of course, be "subjective" in the sense that it is the decision reached as a result of the application of the thought process of the employer. If the Tribunal concludes that the employer did not reach the conclusion referred to, then the Tribunal need go no further. The exception in s 66Q(1) will not apply.

If it did "appear to the employer" (in New South Wales) or the employer did "conclude" (in Western Australia) that the person with the impairment, because of the impairment, would be unable to carry out the work, then other matters have to be considered. In both pieces of legislation, the employer has to show something about the process leading to the conclusion. The employer must prove it took steps to obtain relevant and necessary information, and that the grounds relied on to reach the conclusion were reasonable for the employer to rely on.
In my view, the Tribunal found that the appellant did not conclude that the respondent, because of his impairment, would be unable to carry out the work reasonably required to be performed in the course of employment. This finding is to be found in par 71 of the Tribunal's reasons for decision, which reads as follows:
"The Tribunal considers that the focus of the medical examination and the Respondent's decision making process was on risk minimization rather than making an assessment of the ability of the person to carry out the work. The way in which the Respondent's witnesses describe the basis for the decision not to employ the Complainant clearly supports such a conclusion, as does other evidence. For example, it was said in evidence that the relationship between the Respondent and Dr Crawford arose from concerns about the Respondent's level of workplace injuries. Further, Mr Constantinides expressly referred in his evidence to a recent case of work related back injury and made other comments in relation to the Respondent's duty of care. The willingness of the Respondent's witnesses to maintain the position that the Complainant is unable to carry out the work even in the face of specialist opinion to the contrary, supports a conclusion that the determination being made by the Respondent is whether it is in its best interests to employ the Complainant, not whether he can perform the work. On the evidence available to it, the conclusion of the Tribunal is that the Respondent applied a different criteria than that provided for in section 66Q."
It would have been preferable for the Tribunal to have said expressly, that it found that the employer did not reach a conclusion that the respondent, because of his impairment, would be unable to carry out work reasonably required to be performed in the course of his employment as an aircraft handler. However, this is the effect of what the Tribunal has said in par 71. This is confirmed by par 72, where the Tribunal says that if it were wrong on that point, then the conclusion was not reasonably based.
As a result, the Tribunal's finding does not demonstrate any error of law. It has not been shown that it erred in law by failing to properly construe the meaning and effect of s 66Q(1). It understood what the law was and then made an unreviewable finding that the appellant did not conclude that the respondent could not perform the work. The finding was unreviewable because there was some evidence to support it. The evidence was that the employer considered safety issues as well as ability to carry out the work. The Tribunal considered that the appellant's focus was on safety issues and it had not reached any conclusion about ability to perform the work. The fact that I might think that the finding is unreasonable does not allow me to overturn the decision.
That conclusion brings to an end the appellant's case on ground 1. There is no challenge to the finding that the appellant did discriminate on the grounds of incapacity and so, once the finding was made that the appellant did not reach the "conclusion" referred to in s 66Q(1), that section could not apply to exonerate the appellant.
The ground of appeal referred to above therefore fails.

Quantum – Ground 2

The second ground of appeal is that the Tribunal erred in law in awarding the respondent general damages of $10,000, which sum was manifestly excessive in all the circumstances. This award was in addition to an award of $2,000 for economic loss, being loss of income.
If this ground is to succeed, then the Tribunal's decision must show an identifiable error of law or "be outside the limits of a sound discretionary judgment": Norbis v Norbis (1986) 161 CLR 513 at 520. A decision outside the limits of a sound discretionary judgment will be an error of law: Grimshaw v Dunbar [1953] 1 QB 408 at 414.
This ground does not challenge the part of the award for economic loss.
Section 127 of the Act authorises the Tribunal to order the appellant to pay to the respondent, damages not exceeding $40,000 "by way of compensation for any loss or damage suffered by reason of the respondent's conduct". In awarding damages, the character and conduct of the respondent as well as the appellant should be taken into account in determining the quantum of damages. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the anti‑discrimination legislation gave effect. Compensable loss would include injury to feelings or humiliation. See Hall v A & A Sheiban Pty Ltd (1989) EOC 92‑250 at 77,395, 77,433.
In this case, there was very little evidence on the subject of the respondent's loss and damage. The respondent said he was distraught when he was told he was not to have the employment. He had tears in his eyes. He gave evidence that he was "very depressed" and that "… I even started taking Efexor … an antidepressant …". He took this antidepressant for two months and then "I told my doctor I don't want to rely on medication and I am a fit person …"
There seemed nothing unreasonable about the way that Mr MacDonald, on behalf of the appellant, informed the respondent that he was unsuccessful in his employment application. When he was told this, the respondent asked why he did not obtain the job, and it was explained to him that it was on medical grounds and that there were certain aspects that came up in his medical examination that prevented him performing the functions of aircraft handler.
The Tribunal's reasons for decision for awarding general damages of $10,000 were the finding that the complainant suffered "a great deal of distress and hurt" as a result of his treatment by the respondent, involving as it did a retraction of an offer of employment and not simply a refusal to employ the complainant. The Tribunal said that it considered that the way in which the "retraction of the offer of employment was conveyed to the Complainant significantly increased the anxiety and distress suffered by the Complainant."
The Tribunal continued:
"The Complainant stated that when he was told he would not be employed he had tears in his eyes. The Respondent's own witness, Mr McDonald, stated that the Complainant was obviously distraught and even offered to work for nothing. It is not difficult to appreciate the level of distress suffered by a man with a newborn child who, having finally found full time employment, has that employment taken from him without adequate explanation.
It is important that awards compensating for injured feelings should not be minimal because that would tend to trivialize or diminish the respect for public policy implicit in the legislative provisions: Hall v Sheiban Pty Ltd (1989) EOC 92‑350. In all the circumstance, the Tribunal considers this case of discrimination to be of particular seriousness warranting a significant award of damages. The Tribunal will award the Complainant the sum of $10,000 by way of general damages. To this must be added the sum of $2,000 representing his loss of income."
A large number of Tribunal decisions were referred to by counsel for both parties in the hearing before me. I was informed that in all of the cases involving refusal to employ on the basis of impairment, the awards of general damages were less than $2,500, save for the case of Madafferi v City of Northcote (1993) EOC 92‑512. In that case, the complainant, who limped because of a hip injury suffered in his youth, was refused employment and was told "we can't give you the job because you have a limp". The Tribunal in that case held that the treatment of the complainant was callous; that he suffered great distress; he questioned his own confidence and suffered for some months a traumatic and anguished period before he was able to regain his belief in his own abilities and put himself back into a position to obtain employment. Even down to the day of the hearing, the complainant gave evidence that he suffered residual humiliation and hurt from the way he was treated. In my view, that case was not comparable to the present case.
The other point to be noted is that s 127 provides a maximum of $40,000 by way of compensation in respect of any complaint which is substantiated under the Act. This includes cases of discrimination during employment where the facts can reveal that an employee suffered discrimination over a long period of time. See, for example, Cvetkovski v Cleary Bros (Bombo) Pty Ltd (1999) EOC 93‑032, where the applicant was subjected to sustained unpleasant racial taunts over a four‑year period. Furthermore, the $40,000 limit is to cover all damages, including economic loss plus general damages.
In this case, the appellant had medical evidence from a reputable doctor, who knew what was involved in the job of an aircraft handler and whose view the appellant respected. Although the Tribunal held that the appellant decided that it would not be in its best interests to employ the respondent, rather than deciding that the respondent could not perform the work, there is no suggestion that the appellant was not genuinely and properly concerned about the risk of injury to the respondent.
In my view, the award was manifestly excessive in all the circumstances and outside the limits of a sound discretionary judgment. The circumstances warrant an award at the lower end of the scale. In view of the very limited evidence, an award of $2,000 would have been an appropriate sum to compensate the respondent for injured feelings and the period of depression which the respondent said that he had suffered. I therefore quash the award of $10,000 and in lieu award $2,000.