Davis v Metro North Hospital and Health Service & Ors [2019] QCAT 18

BRIEF FACTS

The applicant in this matter, a politician who publicly criticised the government, applied for a medical officer position at a hospital. This role for which he was the only qualified applicant did not progress and the vacancy was withdrawn. The respondents claimed that the reason for the withdrawal was that clinical streaming had not been applied to the position. However, the applicant alleged that he was directly discriminated against by the respondents because of his political belief or activity.

LIABILITY

By the way of comparing the treatment accorded to the present applicant to that of a hypothetical competitor, the inference was drawn that the decision to cease the recruitment process was solely based on the applicant’s recent actions and beliefs as a politician. Therefore, the Tribunal concluded that the respondents unlawful discriminated against the applicant in contravention of the Anti-Discrimination Act 1991 (Qld).

Liability issues have been reported extensively elsewhere.  The main purpose of this case summary is rather about quantum (court-assessed value) of damages in anti-discrimination matters before the Queensland Civil and Administrative Tribunal (QCAT).

QUANTUM OF DAMAGES

General Damages

A broad term given to non-pecuniary loss such as pain and suffering, loss of amenities, emotional harm, etc and is awarded to a plaintiff as part of a compensatory damages to cover all those losses which are not easily quantified as opposed to pecuniary damages.

The applicant gave evidence as to the effect that the discriminatory conduct of the first respondent had on him, which was supported by evidence form his wife, son and friends. He testified that he had had feelings of anger and grief because he was not allowed to return to work as a public hospital doctor, that he had lost self-esteem, standing in the profession and personal sense of purpose. He stated that he has isolated himself from people and public events, which has resulted in his not applying  for further public hospital clinic jobs due to the fear of further loss of dignity.

The applicant stated that the loss of income has directly adversely affected his financial flexibility with associated phycological distress. The Tribunal found that the impact on the applicant’s functioning caused by discrimination in this case has had serious and debilitating consequences in common with the effects of a diagnosed psychological disorder. As the result, the applicant was awarded $50,000 in general damages.

Interest on general damages

In calculating interest on general damages, the Tribunal referred to a number of recent Tribunal cases and decided to maintain consistency and award a 2% interest per annum, which amounted to $4,410.

Damages for past economic loss

The applicant claimed that pecuniary loss has arisen because of the failure of the first respondent to employ him. The Tribunal looked at the amounts of remuneration paid to comparable medical officer who had been offered employment in the period relevant to this complaint.

It was found that the appropriate calculation of loss of remuneration for the period up to decision was $830,824.83.25. The appropriate interest rate on past economic loss was held to be 2%, amounting to $78,784.62.

Damages for loss of future earning capacity (or ‘future economic loss’)

The applicant claimed compensation for future economic loss, stating that the likelihood of his obtaining employment in the future had significantly diminished. Future earnings, calculated on the basis of the contractual level of remuneration of the medical officer the applicant had applied for, for 3 years and 8 months amounted to $744,229.19.26.

Based on the applicant’s demeanour over the hearing days, it was concluded that it was more likely than not that the applicant would have worked as a public hospital clinician past his mid-60’s. On the basis of reduction of future remuneration by a factor of 50%, the damages for future economic loss were calculated at $407,823.89.

Aggravated damages

Aggravated damages are the special and highly rare damages awarded on a defendant by a court, when his/her conduct amounts to tortious conduct subjecting the plaintiff to humiliating and malicious circumstances.

The Tribunal did not award aggravated damages in this matter.

CONCLUSION AND OUR COMMENT

In the result, the applicant was awarded the amount of $1,450,771.69 as compensation for the first respondent’s contravention of the Anti-Discrimination Act (Qld).

What is interesting about this case is the Tribunal’s method of calculating damages in the heads of damage components and overall. The Tribunal considered the persuasive influence of the recent Richardson case where the applicant, who had endured continuous sexual harassment at work, was awarded the highest award of general damages component of $100,000.

The Tribunal in this matter has given a significant overall award to the applicant to reflect prevailing standards in the community.