Murugesu v Australia Post and Anor (No.2)
[2016] FCCA 2355
•15 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MURUGESU v AUSTRALIA POST & ANOR (No.2) | [2016] FCCA 2355 |
| Catchwords: HUMAN RIGHTS – Ruling on quantum of compensation to be awarded for respondent’s contraventions of the Racial Discrimination Act. |
| Legislation: Racial Discrimination Act 1975, s.18C Federal Circuit Court of Australia Act 1999, s.76 Australian Human Rights Commission Act 1986 , s.46PO(4) |
| Cases cited: Ewin v Vergara (No. 3) [2013] FCA 1311 Clarke v Nationwide News Pty Ltd (2012) FCA 307 Jones v Dunkel (1959) 101 CLR 298 Lee vSmith & Ors (No. 2) [2007] FMCA 1092 Richardson v Oracle Corporation Australia Pty Limited [2014] FCAFC 82; (2014) 223 FCR 334 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Haider v Hawaiian Punch Pty Ltd [2015] FCA 37 Abdulrahman v Toll Pty Ltd [2006] NSWADT 221 Keenan & Quigley [2007] FMCAfam 228 Moussa v Confoy [2015] NSWDC 103 Kanapathy v In De Braekt (No.4) [2013] FCCA 1368 |
| Applicant: | VISWANATHAN MURUGESU |
| First Respondent: | AUSTRALIAN POSTAL CORPORATION |
| Second Respondent: | JOHN BOYLE |
| File Number: | MLG 400 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 8 August 2016 |
| Date of Last Submission: | 8 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Staindl |
| Solicitors for the Applicant: | Arnold Thomas & Becker |
| Counsel for the Respondents: | Mr McKenny |
| Solicitors for the Respondents: | Ashurst Australia |
ORDERS
The respondents pay the applicant $40,000 (“the sum”) within 30 days.
If order 1 is not complied with, the respondents pay the applicant interest on the sum at the Victorian penalty interest rate until such date as the sum is paid.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 400 of 2012
| VISWANATHAN MURUGESU |
Applicant
And
| AUSTRALIAN POSTAL CORPORATION |
First Respondent
| JOHN BOYLE |
Second Respondent
REASONS FOR JUDGMENT
Introductory
On 12 November 2015 I delivered reasons for judgment in this matter. I noted at paragraph 262 that I had not adopted the position that either party propounded and would give the parties an opportunity to study the reasons and hear from them further. The matter subsequently was sent to mediation, which was unsuccessful, and the parties returned to court on 8 August 2016 to argue what remedies, if any, should flow from my earlier decision, in respect of which I have not yet pronounced any dispositive orders.
For the reasons that follow, I have concluded that the respondents should pay Mr Murugesu $40,000 as compensation for the racial abuse to which he was subjected.
The earlier decision
The judgment referred to the pleadings at paragraphs 11, 12 and 15, noting that the applicant claimed that the conduct of the second respondent constituted discrimination against the applicant contrary to the Racial Discrimination Act 1975 (“RDA”) in that it constituted distinction, exclusion, restriction or preference based on the applicant’s race, colour, national or ethnic origin which nullified or impaired the applicant’s enjoyment or exercise on an equal footing of the human right, namely, his participation in the workplace without suffering discrimination or the fear of it or to participate within society without discrimination or fear of it.
I noted at paragraph 15 that the pleading went on to assert that the various matters complained of infringed s.18C of the RDA, being likely to intimidate or offend or insult the applicant.
I noted at paragraph 245 that:
“Both parties proceeded on the implicit understanding that if the racial abuse against Mr Boyle was found to have occurred it would constitute conduct contravening the provisions of the RDA. It is well established that racial abuse of an employee can contravene the terms of section 9 of the RDA.”
It should be noted that the final submissions by the parties did not place any particular emphasis upon which particular part of the RDA had been contravened. Rather, as I say, both parties proceeded upon the implicit understanding that findings made against Mr Boyle, and if found also against the first respondent, would constitute conduct that contravened the Act. I mention this because in the additional submissions made as to the question of compensation on 8 August 2016, virtually nothing was said about this aspect of the matter.
At paragraph 220 of the earlier judgment, I found:
“Whether or not Mr Boyle’s remarks were intended to be racist, or were considered by him to be inoffensive banter is difficult for me to say. It is difficult to feel that they were not, but it is not possible to know what is in another person’s mind in these circumstances. On any view of the matter, however, these remarks were, on their face, grossly offensive, and they clearly greatly offended the applicant.”
I went on at paragraphs 224-225 to find:
“Taking all of the evidence into account, I find that the applicant was subjected to racial taunts in the form of being called “a black bastard, a fucking black bastard, told to go home to Sri Lanka by boat and subject to remarks equating his labour to slave labour. I do not think that these remarks took place on anything like as many occasions as the applicant asserts. They were, in my view, more probably than otherwise isolated.
Equally, however, there is no doubt that they were deeply distressing to Mr Murugesu.”
I then went on to deal with the very important issue of the alleged assault on 8 July 2011. At paragraph 237, I stated:
“In my view, it is inappropriate for me to seek to come to a concluded view about the extent of whatever force was used by Mr Boyle. That is because I have no doubt whatever that whatever Mr Boyle did, did not occur because of the applicant’s race or national origin. It took place because Mr Murugesu was acting in a way that Mr Boyle thought unsafe. As I see the matter, it was partly a contest of wills between the two of them (as appears to have been the case on numerous occasions in the past), but it was also clearly motivated by imprudent conduct on Mr Murugesu’s part.”
At paragraphs 243 and 244, I dealt with the extent of the abuse and the question of the assault as follows:
“I have already dealt with this matter above. As I find, the second respondent did abuse the applicant in all of the terms described, save that of “nigger”. This abuse was intermittent and periodic. I cannot say how often it happened or with what periodicity. The extreme nature of Mr Murugesu’s response to the 8 July incident only goes to confirm, in my mind, the emotional state that Mr Murugesu had reached in dealing with Mr Boyle. Both, to an extent, struck me as dogmatic and forceful personalities, and the racial insults would only have made the inter-relationship between them more difficult.
As indicated, there was clearly some contact between the applicant and Mr Boyle. The applicant has, at all times thereafter, felt that it was a very significant physical assault. For the reasons I have given, I do not need to reach a conclusion about this. On the materials as they stand, I would be unable to do so, in any event.”
As I indicated, I gave the parties an opportunity to provide further submissions.
On 2 February 2016, mediation was ordered by consent. This proved unsuccessful and ultimately the matter was set down for trial. It should be noted that on the last hearing before the trial, on 8 June 2016, the applicant filed in court a claim for aggravated and/or exemplary damages seeking aggravated damages in the amount of $100,000 and exemplary damages as determined by the court.
The court’s power to make orders for compensation
Although only the respondent’s written submissions referred to the Act at all, it appears to be common grounds that the court’s powers to make orders derives from s.46PO(4) of the Australian Human Rights Commission Act 1986. This reads:
“If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent”
(subsections (e) and (f) omitted as irrelevant).
In approaching that exercise, I am guided by the observations of Bromberg J in Ewin v Vergara (No. 3) [2013] FCA 1311 (“Ewin”) at [658] where his Honour said:
“The assessment of general damages in compensation for pain and suffering, for loss of amenity or enjoyment of life and for other intangibles, is not a science and by its nature is not readily capable of arithmetic calculation. Ultimately no amount of money can remove the pain and suffering and loss of amenity Ms Ewin has suffered. All the Court can do is to seek to provide fair and reasonable compensation to Ms Ewin for her suffering. The award of compensation should be neither restrained nor excessive. Each case will be determined by its own particular facts. With great caution, regard may be had to similar cases in order to determine an appropriate range within which the damages awarded should fall.”
It should be noted that his Honour’s award to Ms Ewin of $100,000 under that heading was not displaced by appeal, and indeed White J would have upheld the award even though he found the unlawful discrimination to be more narrowly established than Bromberg J did at first instance.
So far as aggravated damages are concerned, both parties have referred the court to Clarke v Nationwide News Pty Ltd (2012) FCA 307; [2012] 201 FCR 389 at [347] where Barker J stated:
“Aggravated damages are given to compensate a person where the harm suffered was aggravated by the manner in which the act was done. In this, they are different from exemplary damages, which are intended to punish a wrongdoer and deliver a measure of moral retribution or deterrence.”
In Ewin, Bromberg J said at [676]:
“Aggravated damages are considered to be compensatory and there is no question that it is within a court’s power to award such damages under s.46PO(4)(d). Aggravated damages were considered to be available under the predecessor provisions to s.46PO which were in similar terms: Hall v Sheiban at 239-240 (Lockhart J) and 282 (French J); Elliot v Nanda [2001] FCA 418; [2001] 111 FCR 240 at 297 Moore J. “
At [678] his Honour continued:
“The considerations which Ms Ewin’s counsel referred to are considerations that have already been taken into account in the award of general damages. Those same considerations cannot be used to justify a separate order for aggravated damages because to do so would involve “double dipping”: Clarke at [348] (Barker J). As Barker J noted in Clarke at [349] by reference to Elliot v Nanda at 297-298, there are a wide range of circumstances in discrimination cases which may give rise to an award of aggravated damages. Those circumstances might include the manner in which a party conducted its case and thereby exacerbated the hurt and injury suffered from the primary discrimination.”
I note that his Honour was not of the view that there was any basis for awarding aggravated damages in Ewin and I note that this finding was made notwithstanding that Ms Ewin was cross-examined by the perpetrator of the wrongs inflicted on her, Mr Vergara, over a number of days in circumstances where, from his Honour’s decision, it is clear that that process was both extremely distressing to Ms Ewin and also involved assertions by Mr Vergara which were found to be untruthful by the court.
I note in respect of exemplary damages that Bromberg J said at [681]-[682] in Ewin:
“Exemplary damages are punitive damages and are not compensatory in nature. In Qantas Airways v Gama, French and Jacobson JJ (with whom Branson J generally agreed) noted at [94] that the damages available under s 46PO(4)(d) are “entirely compensatory”. However as Barker J noted in Clarke at [340] the Court’s broad power under s 46PO(4) to make such orders “as it thinks fit” may provide a capacity for the Court to award exemplary damages. That view is supported by the obiter observations of Stone and Bennett JJ (with whom Dowsett J generally agreed) that while s 46PO(4) refers only to orders for damages of a compensatory nature, there is no exclusion of other orders that may be made: Employment Services Australia v Poniatowska at [133].
In Clarke, Barker J did not need to finally determine that question because he was not satisfied that an award of exemplary damages would be appropriate. I too, am not currently satisfied that an award of exemplary damages is appropriate. That view may change if, for reasons I will shortly set out, it turns out that the quantum of damages that I propose Mr Vergara pay to Ms Ewin needs to be reduced by reason of any prior satisfaction of Ms Ewin’s entitlement to recover her loss. Subject to that eventuality, I do not at present need to determine whether an award of exemplary damages is available.
It seems to me that on a fair reading, Bromberg J was of the view that in an appropriate case there would be power to award exemplary damages. I note that there has been some difference of opinion in this court (see paragraphs 43-45 respondent’s submissions as to compensation) as to whether exemplary damages are available.
The evidence
The applicant relied upon the additional evidence of two medical practitioners, both it would seem prepared in the context of the ongoing County Court proceedings which I referred to in my earlier judgment. Neither deponent was required for cross-examination.
The affidavit of Dr Seyed Assadi
Dr Assadi deposes that he is a consultant psychiatrist and that he previously provided psychiatric treatment to Mr Murugesu and prepared a report dated 5 April 2016 about him.
That report indicates that Dr Assadi has been seeing Mr Murugesu as a treating psychiatrist on a regular basis since August 2011. (It is clear that the report was prepared in response to a letter from Arnold Thomas & Becker dated 16 March 2016 in the context of the applicant’s ongoing accident compensation claims.)
Having set out a brief introduction of Mr Murugesu and his family, it is noteworthy that Dr Assadi commences under the heading Work Related Incident with a description of the assault on 8 July 2011. The report relevantly says:
“Mr Murugesu claimed that he was assaulted by a work colleague on 8 July 2011. He stated that the alleged assailant had used to verbally abuse him by making racist remarks, gestures and swearing at him for about two years prior to the alleged assault. He said that he was putting up with this abuse.
He told me that he had brought up this to manager, but the manager had not taken any action. This was despite that the person had allegedly sworn and made his racist remarks in front of others. Mr Murugesu said that he complained to his manager on 1 July 2011. He believes that the alleged assailant was upset about the complaint.”
The report goes on to detail Mr Murugesu’s version of the alleged assault.
The report went on to detail that when Dr Assadi first saw Mr Murugesu, Mr Murugesu stated that he developed depressed mood and irritability secondary to the index incident and its consequences (the index incident must, I think, have been the alleged July assault). I note that at the paragraph under the heading Past History it was recorded:
“Mr Murugesu denied any past history of psychiatric illnesses prior to the work-related issues.”
Having been through past medical history, family history and personal history, none of which are directly of significance at this stage, Dr Assadi recorded under the heading Mental State Examination:
“When I saw Mr Murugesu first, he presented as a medium build middle aged male from Sri Lanka background. He was dressed casually; wore a sling to support his right arm. He was cooperative. He showed intermittent eye contact. He reported depressed mood and showed congruent effect. He felt that “something was wrong with his mind” but he could not explain clearly, he was pre-occupied about the work related issues, and wondered “why he should be treated like this for his skin colour”.
Mr Murugesu reported fleeting suicidal ideations without any suicidal plan or intention. He reported fleeting aggressive thoughts towards the alleged assailant but denied any homicidal plan. I did not elicit any delusions or hallucinations. He had normal speech and thought process. He appeared alert and oriented and did not show any gross cognitive impairment. He had good insight into his problems.”
Dr Assadi went on to diagnose Mr Murugesu with chronic adjustment disorder with mixed anxiety and depressed mood and referred to the treatment and outcome which involved psycho-education and discussion of diagnosis and treatment in first sessions and the use of anti-depressants. I note that Dr Assadi asserted (the pages are not numbered and neither are the paragraphs):
“Over the past few years, Mr Murugesu showed flare-ups of anxiety and depressive symptoms in the context of worsening physical pain or psycho-social stresses. For example, he reported paranoid ideas, preoccupation, irritability, and insomnia in November 2012. This was when the alleged assailant reportedly approached a driver of his truck. He had to sell his truck later due to financial difficulties.”
The report continued. Having dealt with difficulties Mr Murugesu had had with his weight and with his relationship with his wife:
“He showed flare-up of depressive symptoms in early 2014 during a legal dispute with Australia Post. He expressed significant resentment towards the employer, felt that he was unfairly treated and let down. He complained of poor concentration and memory. He was concerned about financial difficulty and risk of losing his house. In early 2014, he told me that insurance company had stopped payments and he applied for Centrelink benefits. He expressed suicidal ideations without any suicidal plan at that time.”
Having referred to steps taken to assist Mr Murugesu, the report continued:
“He reported improvements on return in early 2015. This was however a temporary improvement and he showed relapse of physical pain and depressive symptoms later.
In early 2015, Mr Murugesu was still suffering from depressed mood, anxiety, amotivation, hopelessness, insomnia, social withdrawal, poor memory and fleeting suicidal ideations. He said that he was not going for walking in Watergarden Shopping Centre as frequently as usual anymore. He’s currently on Amitriptyline 150mg per day, Escitalopram 20mg daily, Ouctiapine 75mg nocte, and Oxazepam 15mg daily and 30mg at night as needed.
Mr Murugesu showed further deterioration of psychological problems later in 2015. This was in the context of stressful legal proceeding, financial problem and medical issue. He showed me the result of a brain MRI scan performed on 12 September 2015 indicating non-enhancing subcortical signal foci of the left frontal region. He was worried about the etiology and sought a neurologist’s opinion. He felt deeply depressed and distressed by late 2015; reported preoccupation with his personal predicaments, discrimination, and racism. He complained of free floating anxiety, poor sleep, irritability and poor concentration. By December 2015, I increased Amitriptyline and switched him from Seroquel and Oxazepam over to Olanzapine and Clonazepam, respectively.
I saw Mr Murugesu most recently on 31 March 2016. He reported moderate improvement with medication, but complained of residual symptoms including depressed mood, anxiety, irritability and pre-occupation with work related issue and its repercussions.”
In answering specific questions raised by the letter from Arnold Thomas & Becker, relevantly Dr Assadi said:
“2. I have formed an opinion that his psychological problem is secondary to work related injury and its repercussions including chronic pain, physical disability, and financial difficulty. He does not report any past history of psychological problem prior to the index physical injury and I have not found any reason to doubt his report. I believe that he was functioning well at the time of the index injury with a good quality of life, good level of function, good level of activity, and no obvious psychiatric, psychological, or emotional problems.
3. I believe he does not currently have capacity for suitable employment. He is unlikely to return to work in the foreseeable future.
4. Mr Murugesu needs ongoing psychiatric care. I am currently seeing him every fortnight. I will consider spacing out my sessions when the current stressful legal proceeding is over. I am unable to make any comment about the need for treatment by other professionals, as it is out of my area of expertise
6. I consider Mr Murugesu’s prognosis as guarded. He has shown limited improvement with treatment and still shows significant residual symptoms. Mr Murugesu has developed current psychological illness in the context of work related physical injury, and will most likely suffer from psychological condition as long as he is troubled by physical pain and disability.
7. Mr Murugesu is likely to show deterioration of mental health in the future. He has shown a flare-up of psychological symptoms due to stresses over the past few years; and he is vulnerable to slow escalation of depressive and anxiety symptoms if he faces additional psychological stresses or if the current physical problems aggravate in the future.”
Dr David Weissman
Dr Weissman was likewise engaged by Arnold Thomas & Becker (see attachment A to the respondent’s written submissions). This likewise arose in the context of the accident compensation litigation underway. Dr Weissman was, however, an independent medical practitioner engaged for this purpose. As with Dr Assadi, there is no question as to his qualifications.
Having set out background information, past history and personal history, Dr Weissman came on page 5 to the pre-morbid personality and said:
“He described his pre morbid personality as calm and very helpful. However he told me that this had completely changed. He told me that “things have gone very badly”. He told me that after the incident he used to cry a lot, now he has “no tears”. He told me that his attitude has changed. He said, “Don’t misunderstand me, but I hate to see a white person now”
He then said, “I probably might do something to someone. Any white person, I don’t trust.”
He told me that for about 1 ½ years after the assault/claimed incident, he used to think/believe that the assailant (John) was knocking on his front door at home. Mr Murugesu told me that he used to think/believe that there was “someone there” at his front door and, as a result, he hardly slept. Later during the interview, he even mentioned that during the first 1 ½ years after the assault (claimed incident) he was hearing voices too and there was no one around. He also told me that during the first 1 ½ years after the assault (claimed incident) he thought/believed that “someone was behind me” when he was walking down the street.
However, he told me that for the next 1 ½ years or so, the symptoms (above) seemed to resolve.
At this stage of the interview, Mr Murugesu told me that he recently saw the assailant (John) for four days in a row inside the court room. He told me that, since then, some of the above symptoms have returned. He told me that he now thinks/believes that John is knocking at the front door, or waiting outside his front door at home. He told me that he also thinks that John (or someone else) is walking down behind him down the street.
However, there has been no return of auditory hallucinations or pseudo hallucinations.”
After this extract, the next heading is Description of Alleged Work Related Injury and the report continues:
“The work related injury occurred on or about 8 July 2011.”
There then follows Mr Murugesu’s version of the 8 July 2011 incident, which is, of course, to an extent inconsistent with the findings that I have made. I note that the recitation included:
“By way of background, Mr Murugesu told me that he had previously had a lot of “racial problems” with John who had been racially abusive towards Mr Murugesu from 2007 onwards.”
Having dealt with the physical sequelae to the alleged assault and noted the applicant’s current drug regime, Dr Weissman continued on page 7:
“He told me that he is very worried about his physical health and psychiatric health.
He told me that his psychiatric health is “going in a different direction” and he found this difficult to explain.”
The report goes on to note Mr Murugesu’s difficulties with concentration, memory and numerous other difficulties including inter-relationship with his wife and family and on page 8 under the heading Current Psychological and Emotional Symptoms and Progress, Dr Weissman recorded:
“I asked Mr Murugesu about his emotional state and he replied, “Completely changed, completely different.” He told me that originally, following his injury, he was crying a lot and felt very angry. He told me that his anger has now changed. He found his emotional state difficult to describe.
He told me that he now sleeps “a lot” with his current medication regimen. He told me that he sleeps about eight or nine hours at night.
He told me that his weight went up to 94 kilograms. He had gained 14 kg in weight. He told me that now that he has been “forced” to walk, his weight has dropped down to 87 kg.
He told me that he has had three (near) suicide attempts. He told me that once he wanted to drive to the bridge and jump out but did not do this because of his children, especially his daughter.
He told me that about 3 or 3 ½ months ago, on the last day of court, he almost jumped in front of a train.
He described his interests, energy and motivation as absent. He told me that his listens to relaxation music.
I asked him about his self-esteem and confidence and he replied, “Nothing.”
I asked him whether there is anything that cheers him up, gives him enjoyment or pleasure and he replied, “Nothing.”
He told me that since seeing John in court a few months ago he always thinks/believes and is fearful of John being at his front door at home. He also thinks/believes that John is following him down the street. However, there has been no return of auditory hallucinations or pseudo-hallucinations.
He told me that following the assault he had “a lot” of bad dreams and nightmares which are now less frequent and occasional. He told me that he recently had a nightmare that a gang came and killed him and put him in a box. However, someone then woke him up (in his dream).
He told me that he still thinks about the assault several times per day and this is always associated with a type of anger.
He then said, “Believe it not, if I had a weapon or a gun, I would shoot this man.” However on specific questioning, he does not know where John lives and he does not have such a weapon.
I asked him how he sees the future, to which he replied, “Don’t know, doctor. I escaped from one war (in Sri Lanka) and the life is much worse here.”
I asked him whether, in his opinion, he would be able to work, to which he replied, “I can’t concentrate on anything. I was earning between $5,000 and $8,000 per week and had a very good life.””
The report then continues to mental state examination. I note that Dr Weissman found Mr Murugesu to be “very psychiatrically unwell”. I note that Dr Weissman noted that “He tried to be co-operative, but he was, at times, a murky historian who I found difficult to follow. I wondered whether this was a consequence of mild formal thought disorder.”
Dr Weissman noted “The quality of his affect overall was very depressed as well as somewhat agitated”.
Under the heading Thought Content, Dr Weissman noted:
“The content of his thinking revealed several mixed agitated depressive symptoms, themes and features with intermittent passive suicidal ideation. There is no current suicidal ideation, plan or intent.
He has persecutory/paranoid ideation and ideas of reference, bordering on delusional intensity or quality.”
Under the heading Insight and Judgment, Dr Weissman noted:
“His insight and judgment were characterised by a significantly low self-esteem and confidence as well as an elevated responsiveness to various triggers and reminders of the claimed assault as well as the reported, prior racial discrimination from the same person. There may also be a partial impairment of reality testing based upon his persecutory ideation.”
I note that Dr Weissman sets out the findings of the medical panel that had reviewed the matter. I further note that it has not been submitted that I should give any weight to that panel’s conclusions.
Under the heading Diagnoses and Discussion on page 11 of the report, Dr Weissman reported:
“This is a complex case.
The claimant has a history of lower back injury in or around 2010 which he said was aggravated by the claimed incident (assault). The claimant also said that he was racially abused by colleague John from 2007 onwards. I am not sure whether this is considered to be part of the current claim. He told me that he has an upcoming racial discrimination case in this regard.”
On page 12, Dr Weissman continued:
“He continues to suffer from severe mixed depressive symptoms, themes and features with marked agitation, social withdrawal, loss of trust, occupational capacity, intermittent passive suicidal ideation (which is worrying), and persecutory/paranoid ideation with ideas of reference bordering on delusional in terms of intensity and quality.”
Under the heading Diagnosis, Dr Weissman recorded:
“I conducted a psychiatric assessment of the worker/claimant Viswanathan Murugesu and concluded that he is suffering from a chronic major depressive disorder with agitation and psychosis relevant to his employment. By definition, this is a severe, chronic, major depressive disorder.”
Dr Weissman went on to find under the heading Work Capacity:
“Quite clearly on purely psychiatric grounds alone, he is totally incapacitated for all work for the foreseeable future. I think that this would be obvious to any mental health professional assessing him at this time.”
Under the heading Prognosis, relevantly Dr Weissman noted:
·Mr Murugesu’s pre-morbid (pre-work injury) psychiatric prognosis would have been very good and favourable. He was working very long hours, he enjoyed his job, and his business was successful.
·He is currently suffering from a severe group of employment-related psychiatric conditions and mental injuries.
·His psychiatric prognosis for the future is poor, negative and unfavourable. Because of his intermittent suicidal ideation, his psychiatric prognosis may be bleak.
Some brief comments about the expert reports
Although I do not have the transcript of the interlocutory hearings most recently in this matter, I am quite sure that I indicated to the parties that it was important when the matter proceeded to further argument as to quantum of damages that the parties not file material that was inconsistent with the findings that I have made. One of the difficulties with the medical reports filed is that, to an extent, they do posit different findings to those I have reached. Unlike Dr Weissman, I have found that Mr Murugesu was very upset by the treatment that he received from the racial abuse prior to the assault upon which, wholly unsurprisingly, both Dr Assadi and Dr Weissman concentrated. I note that Dr Weissman was not even sure whether the prior racial abuse formed part of the complaint that he was being asked to advise about.
I further note that there was no endeavour subsequent to the various orders I have made, by the applicant’s advisers to have evidence put before the courts that might have sought to disaggregate, as it were, the racial abuse and the assault. Because, unsurprisingly again, (and I emphasise this judgment is not being in any way critical of Dr Assadi or Dr Weissman) they adopted Mr Murugesu’s version of the events, albeit in an appropriately qualified way.
I will return to this aspect of the evidence when I deal with the respondent’s Jones v Dunkel (1959) 101 CLR 298 point.
The applicant’s claim and submissions in support
It should be noted that although the further amended statement of claim filed in court on 17 August 2015 claims at paragraph 13 “lost income from the date of the injury” (arising from the alleged assault) and that “such loss is ongoing and full particulars of such loss will be provided” No such particulars have ever been provided. Rather, damages have been sought for pain, suffering, distress and humiliation in the sum of $100,000, together with aggravated damages of $100,000. The applicant also sought an apology in unqualified terms.
The applicant’s written submissions traverse the court’s prior findings and the effect it has had upon the applicant. The written submissions refer in some detail to the reports of Dr Assadi and Dr Weissman. At paragraph 13 the submissions assert:
“These reports present a most disturbing picture of the applicant’s mental health. He should be awarded substantial compensation.”
The written submissions point to the decision of the Federal Court in Ewin and suggest that a sum of $100,000 would be an appropriate award of compensation as a result. This is because “These principles are applicable in cases of sexual harassment/discrimination as well as racial discrimination” (paragraph 14 applicant’s written submissions).
The written submissions then go on to traverse the claim for aggravated damages. The gravamen of that submission is that aggravated damages should be awarded because the racial abuse occurred over a long period of time and the first respondent did nothing to prevent this. In paragraph 20 the matter is encapsulated as:
“Thus, despite the numerous complaints made about Mr Boyle over a long period of time, there is no evidence of anything being done to address his racism. In my submission, this is a compelling aggravation factor and should result in an additional substantial award of compensation: if Mr Boyle had been tackled about his racism, then it is likely that the effects on the Applicant would not have been severe.”
The claim for exemplary damages is addressed at paragraph 22 where the applicant’s submissions assert:
“If an award of aggravated damages is made in the current case, then it is conceded that the Court would be unlikely to award an amount for exemplary damages. However, if the Court is of the view that any award of compensation it orders is insufficient to punish the respondents (or either of them), then an award of exemplary damages would be appropriate.”
In oral submissions before the court, counsel for the applicant traversed the written submissions but, in one sense, did not add very much to them. He emphasised the failure of the first respondent to do anything when the applicant complained. Counsel pointed to the awards made in Ewin, and by Connolly FM in Lee vSmith & Ors (No. 2) [2007] FMCA 1092. It was submitted that the alleged assault was the ‘straw that broke the camel’s back’, from which I would infer it was being submitted that, as it were, Mr Murugesu’s state of health and wellbeing had been so eroded by the previous racial insults that the assault, albeit not as I have found, discriminatory in its causation, has operated more fully that it otherwise would. Counsel pointed to the various medical reports and emphasised that the claim for aggravated damages of $100,000 was still on foot. He submitted that interest on the sums awarded should be awarded pursuant to s.76 of the Federal Circuit Court Act. Counsel then referred to paragraph 195 of my earlier judgment, in which I said:
“The other area in which I found his evidence less impressive was the occasion when he quite simply lost his self-control. At a point during his evidence, and wholly unresponsive to anything put to him by way of question, Mr Murugesu embarked on an extensive, deeply emotional vent. It was, in substance, a complaint about the way in which the conduct of Mr Boyle had ruined his life. It showed, beyond any doubt, that the applicant has become so overwhelmed by what he perceives is his experiences that it now dominates, it would appear, every aspect of his life.”
I would interpolate and say that it would appear from the reports of Drs Assadi and Weissman that assessment was correct. It should be noted, however, that the reference by counsel to that passage pays no attention to the fact that I did not find the assault, plainly the primary cause of distress, to have been racially motivated.
The respondent’s written submissions and oral submissions
The respondent’s written submissions assert at paragraph 1:
“There is no evidence before the Court that the applicant suffered any loss or damage caused by the racial discrimination found by the Court.”
That is a surprising submission.
Paragraph 2(c) of the written submissions asserts that the applicant suffered no loss or damage prior to 8 July 2011 and had, in fact, a very good psychiatric prognosis. As I have already indicated, that runs contrary, at least in part, to the findings that I have already made, that the remarks made to Mr Murugesu were extremely upsetting and distressing to him. On any view, they formed a springboard, as I have already found and will repeat, for the excessive distress in emotional terms that the alleged assault on 8 July 2011 has given rise to.
The written submissions go on to assert that the medico legal reports should be disregarded and a Jones v Dunkel inference made against the applicant for failing to adduce any evidence which might have assisted him. The submissions assert that any amount awarded to the applicant flowing from the racial discrimination found by the court should be minimal. Finally, at paragraph 5, the submissions assert that the claims for aggravated and/or exemplary damages “are both misguided and have no sound basis in law”.
Having referred to the some of the relevant extracts of my earlier judgment, the written submissions go on to deal with the “Statutory framework to assess compensation”. The written submissions are designed, clearly, to limit the compensation that might be payable to Mr Murugesu. Emphasis is placed by the respondent on the observations of the Full Court of the Federal Court in Richardson v Oracle Corporation Australia Pty Limited [2014] FCAFC 82; (2014) 223 FCR 334 (“Richardson”). Reference is made to the judgment of Kenny J at [33] where her Honour stated:
“In this case, damages are only available to compensate Ms Richardson for the loss she sustained because of Mr Tucker’s proven sexual harassment of her. Any loss arising from Oracle’s lawful conduct is not compensable unless it was also sustained because of Mr Tucker’s unlawful conduct.”
It should be noted that contrary to the position adopted by paragraph 15 of the respondent’s written submissions, the observations of French and Jacobson JJ in Qantas Airways Ltd v Gama (2008) 167 FCR 537, to the effect that s.46PO(4) may give a discretion to award less damages than would fully compensate for the loss suffered was the subject of the following remarks by Besanko and Perram JJ in Richardson at 140 as follows:
“If the obiter remarks of French and Jacobson JJ in Qantas Airways Ltd v Gama are to be understood as suggesting a contrary approach, then we would respectfully decline to follow them.”
In my view, the decision in Richardson, and the remarks of Kenny J in particular, state no more than is obvious. Section 46PO of the Act requires that this court provide compensation for loss or injury which is occasioned “because of” the unlawful conduct. Plainly, I cannot award loss for the alleged assault by Mr Boyle because I have found that it was not occasioned by discriminatory motivation. I am required, as best I can, to assess the loss for that conduct which was discriminatory.
The written submissions go on to deal in some detail with the evidence of Dr Weissman and Dr Assadi. Various criticisms are made, including the perfectly proper one that the reports were occasioned in a different context and, in part, in my view, do not sit comfortably with the findings that I have made. While it is true that the reports deal with the matter very much in the context of the difficulties having been caused by the 8 July 2011 incident, this is not wholly the case. The extracts I have set out above are clear. However, and more importantly, it should be noted that my own findings are not consistent with the two reports and it is for me to assess what loss or damage Mr Murugesu has suffered as a result of the racial taunts to which he was subjected and quantify what measure of compensation is appropriate.
Paragraphs 31 and 32 of the respondents’ written submissions read:
“The Respondents submit that the Applicant has been given ample opportunity by the Court to produce that evidence in light of the Court’s findings in its decision but has not done so. Indeed, the orders made in this proceeding by consent on 5 April 2016 specifically requested that the Applicant file and serve “affidavit material upon which he seeks to rely as to quantum of damages directly related to the findings of racial discrimination engaged in by the Second Respondent”.(underline added)
The Respondents further submit that in the circumstances the Court ought draw an adverse inference against the Applicant that any such evidence that may relate directly to the findings of the Court would not have assisted the applicant: see Jones v Dunkel (1959) 101 CLR 298. In Cross on Evidence (5th Edn) 1996 Butterworths at [1215] the following is stated as an explanation of the rule in Jones v Dunkel:
First, the unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence may, not must, in appropriate circumstances lead to an inference that that uncalled evidence would not have assisted that party’s case.”
Thereafter, the submissions traverse in some detail the question of aggravated and exemplary damages, with which I have already dealt. The submissions go on to assert that the measure of compensation awarded should be at the lower level and refer to attachment D being a table of cases in which damages have been awarded for racial insult.
Attachment D, to which no exception was taken by counsel for the applicant, sets out a series of eight decisions of various authorities as to the amount to be awarded for racially discriminatory remarks. They range from $1,000 to $25,000. I note, to an extent, it might appear that awards have tended to get slightly bigger with time. Remarks at the lowest level ($1,000 to $2,000) involve only one insult. Even a single insult has given rise, it would appear, to an award of $9,000 (Haider v Hawaiian Punch Pty Ltd [2015] FCA 37).
I note that in Abdulrahman v Toll Pty Ltd [2006] NSWADT 221 what the respondent describes as remarks of an offensive nature made to “two to three times a week during a six month period and in staff meetings” between February 2004 to 12 August 2004, which were found to have caused the applicant a great deal of distress, humiliation and embarrassment, gave rise to an award of $25,000 in general damages.
In oral submissions, counsel essentially expanded on his written submissions filed. It was strongly submitted that causation of loss was a significant issue in this case, not addressed by the affidavits of Dr Assadi or Dr Weissman. While counsel conceded that the power concerned in s.46PO(4)(d) was broad, he submitted that aggravated damages were compensatory and the court would need to be careful about double dipping. He submitted that exemplary damages were only half-heartedly pursued by the applicant and that is a submission I accept.
Counsel stressed the Jones v Dunkel objection. He said it was in the applicant’s interest to give evidence but none was given and it would not have assisted the applicant further. He submitted that there had been a failure to call particular evidence and referred to Keenan & Quigley [2007] FMCAfam 228 at [75]-[76] in this regard. The difficulty with this submission is that, unlike that case, I have already made findings that Mr Murugesu was deeply distressed by the treatment he received, a matter entirely contrary to the facts in Keenan & Quigley. The same goes for Moussa v Confoy [2015] NSWDC 103 to which counsel also referred. Counsel also referred to the decision of Lucev J in Kanapathy v In De Braekt (No.4) [2013] FCCA 1368 at [48]-[53] but the court’s remarks in that occasion only go to show the necessity for caution in the way in which the court should approach other decisions (see at [51]).
Consideration of the Jones v Dunkel point
I do not think that the failure to call further evidence is unexplained. It is scarcely surprising that the applicant sought to rely upon two recent medical reports which assessed his condition. Had the applicant’s advisers obtained yet a further opinion seeking, as it were, to attribute more of Mr Murugesu’s ill-health to the racial abuse that Mr Murugesu suffered, and suppressed the reports of Dr Weissman and Dr Assadi, they would well have been open to the charge of misleading the court. The two recent reports is what they possessed at the time the orders for further evidence were made.
Furthermore, medical reports are not cheap. It is understandable that the applicant and his advisers would have not sought to obtain a further report. Furthermore, the disaggregation, so to speak, by medical specialists of the competing strands of Mr Murugesu’s misfortune, namely, the racial abuse and the alleged assault, would seem to me, as a matter of practical politics to be beyond the skill of a medical practitioner, in any event, in the light of Mr Murugesu’s previous descriptions to the other two doctors.
Furthermore and even if all these conclusions are wrong, the worst that can be said is that any further evidence would not have improved Mr Murugesu’s position. His position, however, is by no means hopeless and can rest and indeed does rest on the findings I have already made. In the circumstances, the Jones v Dunkel point takes the matter no farther at all.
Assessment of the compensation payable to Mr Murugesu
As the various authorities to which I have referred make clear, any comparison with other cases must be undertaken with the greatest of caution. The far more substantial awards made in Ewin and Smith turned on vastly different factual circumstances. Likewise, none of the cases referred to in annexure D to the respondent’s written submissions are commensurate, in an exact way, with the facts of this case. It is perhaps important to remember what I actually found. At paragraphs 224-225 of my earlier judgment I found, as I repeat:
“Taking all of the evidence into account, I found that the applicant was subjected to racial taunts in the form of being called “a black bastard, a fucking black bastard, told to go home to Sri Lanka by boat and subject to remarks equating his labour to slave labour.” I do not think that these remarks took place on anything like as many occasions as the applicant asserts. They were, in my view, more probably than otherwise isolated.
Equally, however, there is no doubt that they were deeply distressing to Mr Murugesu, and it is against that background that we come to the events of 8 July 2011.”
It should be noted that Mr Murugesu started work for the first respondent in late 2007 and that he was complaining to Mrs Currie by 2010. I have not previously made any findings as to exactly how long these remarks continued, but re-reading my earlier judgment it is clear that I was convinced that this subsisted from early days after the applicant’s employment in December 2007. It plainly extended over a very lengthy period of time.
It is also to be noted that although the alleged assault in July 2011 was not racially motivated, its effects upon the applicant sprang, at least in part, from the state of mind that Mr Murugesu had achieved by that time. As I noted, this series of events has come totally to dominate Mr Murugesu’s life.
As explained by Bromberg J in Ewin, the assessment of compensatory damages in cases like this “is not a science and by its nature is not readily capable of arithmetic calculation”. Ultimately, no amount of money can remove the pain and suffering and loss of amenity. It is important to remember, however, that I am not compensating Mr Murugesu for the pain and suffering he undoubtedly genuinely feels he has suffered as a result of the assault.
Even leaving the assault out, as in the ultimate I believe I am obliged to, notwithstanding that it was the springboard for the intensity perhaps of Mr Murugesu’s response to the assault, the indignity that Mr Murugesu had to undergo was significant. It is clear from the reports he gave to both Dr Assadi and to Dr Weissman that the issue of his colour has come to play a big part in his mind. Those are matters that arose, at least in large part (although it is not possible to give this any kind of precise quantification and indeed I strongly suspect no one would ever be able to do so) from the racial abuse he has suffered.
It is all too easy to say that these matters were intermittent and not at the worst end of the possible scale. Nonetheless, to be routinely described over an extensive period of time as a ‘black bastard, a fucking black bastard’ and told to ‘go home to Sri Lanka by boat’ and subject to remarks equating your labour with slave labour is extraordinarily demeaning and offensive. Noting as I do the awards made referred to in schedule D to the respondent’s submissions (albeit with the caution referred to by Bromberg J in Ewin), I think that an award of some $40,000 by way of compensation is appropriate.
The next issue is the question of aggravated damages. The difficulty I have with the applicant’s submissions is that it has really put that had the first respondent acted more promptly, Mr Boyle’s conduct would have been less and therefore the damage to Mr Murugesu lessened also. I accept that that is so. Given, however, that I am awarding damages to Mr Murugesu for Mr Boyle’s conduct as it, in fact, occurred, in other words without any earlier intervention by the first respondent, it is immediately apparent that an additional award under this heading would constitute double dipping, which is not permitted.
Furthermore, although the respondents have fought their case to judgment, none of this has been done in a way designed, as least as I see it, unfairly to humiliate or otherwise demean Mr Murugesu. The respondents were entitled to run their case. The first respondent had been told, no doubt, of Mr Boyle’s denials of the impugned conduct and was entitled to put its case to the test.
The next question is the question of exemplary damages. Exemplary damages are punitive in nature and are not compensatory. They are usually awarded to punish some particularly egregious conduct on the part of a party. It is sufficient to say that even if I do have the power to award exemplary damages, the facts of this case go nowhere near making it appropriate to make such an award. I note again that the application for exemplary damages was only faintly pressed.
Although the applicant’s prayer for relief included an “apology on unqualified terms”, this claim was not pressed in the applicant’s written or oral submissions. There is no evidence that an apology would in fact compensate Mr Murugesu for what he suffered. Indeed, the reports of Dr Assadi and Dr Weissman suggest that Mr Murugesu has become so unwell that an apology would be would be unlikely to assist him (“Any white person, I don’t trust”). In these circumstances, I will not make an order that the respondent’s apologise to Mr Murugesu.
The final issue to be considered is the question of interest. The applicant submits that the court has power to make an award of interest and I accept that that is so. Nonetheless, as Connolly FM (as his Honour then was) pointed out in Lee v Smith & Ors (No 2) at [18]-[19], where an award of damages is assessed at a point at which the money has not been paid (as inevitably is the case here) interest is inappropriate. I respectfully agree. The award of $40,000 I am making is to compensate Mr Murugesu for all the loss and damage he has suffered up until today’s date. Interest should only run, in my opinion, from the date after the order for payment has expired.
Subject to submissions, I will be granting a stay of 30 days (the period which enables any appeal to be contemplated) and plainly if the due sum is not paid by that date, then interest should run thereafter.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 15 September 2016
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