Hudson v Strathfield Golf Club (No. 2)

[2000] NSWADT 140

CITATION:	Hudson (No. 2) -v- Strathfield Golf Club [2000] NSWADT 140
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Steven Hudson RESPONDENT Strathfield Golf Club
FILE NUMBER:	122 of 1997
HEARING DATES:	09/08/2000
SUBMISSIONS CLOSED:	08/09/2000
DATE OF DECISION:	10/12/2000
BEFORE:	Britton A - Judicial Member; McDonald O - Member; Edwards K - Member
APPLICATION:	Race Discrimination - In work
MATTER FOR DECISION:	Quantum of damages for economic loss
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Hudson v Strathfield Golf Club [2000] NSW ADT 88
REPRESENTATION:	APPLICANT A Tibbey, solicitor RESPONDENT E Brus, barrister
ORDERS:	The Tribunal orders that the respondent pay to the applicant the sum of $9020 within fourteen days of the date of this order.

1 This decision relates to damages claimed by the applicant for economic loss under s113 (1)(b)(i) of the Anti- Discrimination Act 1977 (the Act). On 6 July 2000 the Tribunal, as presently constituted, handed down a decision, Hudson v Strathfield Golf Club [2000] NSW ADT 88 which upheld Mr Hudson’s complaint of unlawful discrimination on the grounds of race in contravention of s 8(2)(a) and s 8(2)(c) of the Act. In that decision the Tribunal ordered the respondent to pay the applicant the sum of three thousand dollars ($3000) for non-economic loss. Our decision in relation to economic loss was deferred, and the parties were requested to provide further details in relation to a workers compensation settlement entered into by the parties on 4 November 1999 (the settlement).

2 This matter came before us on 9 August 2000 to allow the parties to make further submissions in relation to this settlement. Both parties were represented at that hearing.

3 Pursuant to a consent agreement, a Short Minutes of Order dated 4 November 1999 (the order) was made by the Workers Compensation Commission, for a lump sum payment of $25,000 to the applicant (Matter NO. 33184/99). Ms Brus, for the respondent, submitted that it is clear from the wording of the order that the settlement figure included the payment in full, of any weekly fee payable under s36 of the Workers Compensation Act 1987 (WC Act). In support of this argument Ms Brus referred the Tribunal to the Application for Determination, which particularises the compensation claimed to include weekly payments to 6 June 1997.

4 Ms Tibbey for the applicant conceded that while a proportion of the settlement must be seen to relate to weekly payments referable to s36 and s37 of the WC Act, the lump sum settlement also includes a separate entitlement for permanent impairment under s66 and s67 of the WC Act. Accordingly, as it is unknown what component of the settlement relates to loss of income as opposed to damages for permanent impairment, the respondent’s submission that the lump sum payment must be seen as fully covering payments under s36 of the WC Act should be rejected.

5 The order is silent as to what proportion of the lump sum payment is attributable to the various components of Mr Hudson’s workers compensation claim. All that can reliably be said is that the parties agreed to a global settlement of $25,000 and that that settlement extinguished the respondent’s liability in respect to any future claims pursuant to s36, s37, s66 and s67 of the WC Act. However taking into account the quantum of the settlement and other relevant factors we are persuaded on balance that the lump sum payment included a sum for weekly payment for 26 weeks from December 1995. Accordingly we decline to make any order for damages for income lost for the period prior to July 1996.

6 In relation to the period after July 1996 where s37 payments may be relevant, it is self evident in light of the quantum of the settlement, that the settlement cannot be seen to cover weekly payments from July 1996 to the present. Therefore we will have only general regard to the settlement for that period.

7 We turn now to the applicant’s claim for damages for loss of income from July 1996. We found in Hudson v Strathfield Golf Club (at 212) that it was unlikely that Mr Hudson’s contract would have been extended by his former employer, after its expiration in April 1996. The issue for us to determine therefore is whether there is a causal link between the unlawful acts of discrimination by the respondent and the applicant’s inability to find employment with another employer and consequent loss of income.

8 Ms Tibbey claims that the applicant’s premature dismissal denied him the opportunity of building upon his work record of stable employment and obtaining positive references that would have enhanced his prospects of obtaining another job in the event his contract was not renewed.

9 Since his dismissal in 1995 Mr Hudson has been unemployed. The evidence establishes that for some time following his dismissal he did not seek work because of a concern that his back injury would be aggravated. While Mr Hudson’s evidence is not altogether clear, it would appear that he renewed his efforts to find employment at about the same time he first saw Dr Costa ie. June 1997. His efforts to date have been not met with success.

10 The evidence before the Tribunal is that there is a limited class for which Mr Hudson is now suited because of his health. He is unfit for heavy manual work because of his back injury; and for work involving prolonged concentration, because of a depressive illness.

11 The medical evidence before the Tribunal clearly establishes that Mr Hudson’s experience at Strathfield Golf Club was the trigger to his depressive illness. However as concluded by us in Hudson v Strathfield Golf Club (at 217-220) the evidence establishes that the discriminatory treatment by the respondent club was not the sole cause of this illness: the back injury has also played a role.

12 Having accepted that there is an identifiable link between Mr Hudson’s depressive illness and the respondent’s unlawful discrimination, the Tribunal must determine the extent to which the depressive illness, as opposed to other factors, is responsible for the applicant’s prolonged period of unemployment and consequent loss of income. It is always difficult to estimate with precision to what extent a particular factor is responsible for an individual’s inability to secure employment. This case is no exception.

13 We note at this point that while Mr Hudson was unemployed at the time he was engaged by the respondent under the Mission Employment program, his work history does not suggest that he was a person who could be described as ‘unemployable’. There is no evidence to suggest that extended period of unemployment featured regularly in his work history.

14 Had Mr Hudson been in employment from July 1997 to the present, his income would have been approximately $45,100, assuming a weekly wage of $275. While there is limited evidence on the wage levels Mr Hudson could have expected during this period, in light of his work history we are of the view that $275 represents a reasonable estimate.

15 Mr Hudson’s work history reveals that the preponderance of work undertaken by him prior to October 1995 involved heavy physical labour, a smaller proportion involved prolonged concentration but no heavy labour, for example taxi driving. He is now medically unfit for both. We estimate that the class of work for which Mr Hudson is now suitable has been reduced by approximately 25% because of his inability to undertake any job requiring prolonged concentration. In recognition of the fact that his depressive illness is not referable exclusively to the discriminatory acts of the respondent this figure is discounted to 20%.

16 Accordingly we find that $9020 to be an appropriate figure for past economic loss.

17 There is no reliable evidence on the issue of loss of income beyond this period, consequently we decline to make any orders for any future economic loss.

ORDERS

18 The Tribunal orders that the respondent pay to the applicant the sum of $9020 within fourteen days of the date of this order.