CITATION: Mooney v Commissioner of Police (no 3) [2003] NSWADT 189 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Denis Mooney RESPONDENT Commissioner of Police FILE NUMBER: 021094 HEARING DATES: 06/08/2003 SUBMISSIONS CLOSED: 08/06/2003 DATE OF DECISION: 08/14/2003 BEFORE: Hennessy N - Magistrate (Deputy President); Bolt M - Member; Nemeth de Bikal L - Member APPLICATION: Damages MATTER FOR DECISION: Damages LEGISLATION CITED : Anti-Discrimination Act 1977 Janiak v Ippolito [1985] 1 SCR 146 CASES CITED: Munce v Vinidex [1974] 2 NSWLR 235 (CA) Najdovska & Ors v Australian Iron and Steel Pty Ltd (1986) EOC 92 176 March v Stramare 1991 171 CLR 506 APPLICANT REPRESENTATION: S Beckett, barrister RESPONDENT S Winters, barrister ORDERS: Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $40,000 by way of damages for economic loss. REASONS FOR DECISION Introduction 1 On 19 May 2003 the Tribunal delivered its decision in this case. (Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107.) These proceedings concern Mr Mooney's claim for damages as a result of the Tribunal finding that the way the respondent applied its sick leave policy to Mr Mooney amounted to direct discrimination on the ground of disability under the Anti-Discrimination Act 1977. The only relief sought by the applicant was damages in the sum of $40,000 for economic loss. The background to the complaint is set out in the earlier decision. Legislative provisions 2 The relevant provision in relation to damages for economic loss is s 113(1) of the Anti-Discrimination Act 1977 (AD Act) which states that: (1) After holding an inquiry, the Tribunal may: (a) dismiss the complaint the subject of that inquiry, or (b) find the complaint substantiated and do any one or more of the following: (i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, 50 Evidence 3 Mr Mooney did not give oral evidence at either the substantive hearing or the hearing in relation to damages. Consequently, the uncontroverted evidence is that contained in his statements dated 10 December 2002 and 16 June 2003. In summary, that evidence was that Mr Mooney resigned from NSW Police on 21 July 1995, with effect from 18 August 1995 which was the date on which his annual leave ended. Mr Mooney stated that the reasons for resigning were that after the events of 5 and 12 July 1995 and the hostility in the office, he decided that he could not continue working under Inspector Clark and did not want to have to return to the office. The events of 5 and 12 July related to arriving at work and finding that all his files were being taken away from his desk, a direction that he attend a staff meeting and a recommendation by Inspector Clark that he continue to provide medical certificates for every absence on sick leave for the next six months. In his letter of resignation, he stated that: "Resulting from my age, I have been the subject of harassment and discrimination from Robert Campbell Clark with the result that I am compelled to give this notice of my early resignation." 4 The Manager of Personnel Services, Ms Myers, wrote to Mr Mooney on 1 August 1995 saying that a representative of the Internal Affairs Branch would contact him in relation to the allegations of harassment and discrimination. The letter also asked Mr Mooney to contact her if he did not wish to proceed with the resignation pending the outcome of the Internal Affairs investigation. That letter was sent to Mr Mooney at his work address. Since he was not attending work, he did not receive it. On 7 November 1995 Mr Mooney met with Lynne Fox, Senior Mediation Officer with the Equal Opportunity Branch of the respondent, who told him about the letter. Ms Fox told Mr Mooney that even if he accepted the offer of employment, he could not have his old job back as it had been filled. Mr Mooney said that he was scared he would be sent to a position outside Sydney and did not feel that there was any offer he could accept at that point. 5 On 28 August 1995 two police officers, Sergeant Owen Rogerson and Senior Constable Mark Melton, visited Mr Mooney as part of the Internal Affairs investigation. Mr Mooney had worked with both these officers at the unit in which he was employed. Mr Mooney said that he was amazed that NSW Police had sent two officers from his old unit to investigate the complaint. He did not want to tell them anything because he was concerned that Inspector Clark may have sent them. Instead he dictated a statement indicating that he did not want the investigation to continue. On 7 February 1996, Mr Mooney lodged a complaint with the Anti-Discrimination Board. 6 Mr Mooney wrote in his statement of 10 December 2002 that "Prior to the events from September 1994 to the date of my resignation in 1995, I had intended to continue to work for the New South Wales Police for a further 1 to 2 years. However I intended to re-assess the situation annually after the age of 65 and then decide when to retire. 7 In relation to the extent of his economic loss, Mr Mooney claims 12 months loss of wages from 18 August 1995 to 18 August 1996 in the sum of $45,792.55. According to the applicant, the only amounts which should be subtracted from that amount is the receipt of income for the preparation of tax returns for other people of $365 in 1995-1996 and a pro-rata amount for 1996-1997. Neither amount would reduce the total amount claimed below the jurisdictional limit of $40,000. Principles to be applied to the determination of economic loss 8 Damages for economic loss are designed to place an applicant in the same financial position that he or she would have been in but for the discriminatory conduct. While an applicant has a duty to mitigate damages, the burden is on the respondent to prove that the applicant's refusal to mitigate his or her loss was unreasonable. (Janiak v Ippolito [1985] 1 SCR 146; Munce v Vinidex [1974] 2 NSWLR 235 (CA); See also Najdovska & Ors v Australian Iron and Steel Pty Ltd (1986) EOC 92 176 at 76,696 -76,697.) The respondent raised three main issues in relation to the applicant's claim for damages. These were: · whether any loss or damage suffered by the applicant was "by reason of" the respondent's conduct; · whether the Tribunal should accept the applicant's estimate that he would have continued working for one year, and · whether the applicant unreasonably refused to mitigate his loss. 51 Causation 9 Mr Mooney is only entitled to compensation for any loss or damage suffered "by reason of the respondent's conduct." Ms Winters, representing the respondent, submitted that Mr Mooney resigned at least partly because of the hostility in the office and the behaviour of Inspector Clark which was not related to his sick leave. She said that even if the events relating to sick leave had not occurred, it is not inconceivable that Mr Mooney would have resigned anyway. Mr Beckett, representing Mr Mooney, said that while other conduct which the Tribunal found not to be discriminatory may have contributed to Mr Mooney's decision to resign, the discriminatory conduct was one of the reasons for that decision. 10 Mr Mooney's evidence was that he resigned for a combination of reasons, some of which the Tribunal has found to constitute unlawful discrimination and others which it has not. The general principles of damages for torts are relevant. The need for any damages to be "by reason of" the respondent's conduct corresponds, in the law of tort, with the requirement for the loss or damage to be "caused" by the respondent's unlawful conduct. Causation is essentially a question of fact to be determined by reference to common sense, experience and value judgments. The "but for" test is not a definitive test of causation. (See March v Stramare 1991 171 CLR 506.) It is not necessary for us to determine whether "but for" the discriminatory conduct, Mr Mooney would have resigned anyway. It is apparent from Mr Mooney's evidence that the discriminatory conduct was a substantial factor in his decision to resign. In our view, that is sufficient to conclude that the economic loss suffered by Mr Mooney occurred "by reason of" the respondent's discriminatory conduct. Estimate of time applicant would have worked 11 Ms Winters submitted that Mr Mooney's statement that he would have continued to work for a further 1 to 2 years and that he would have reassessed his situation on an annual basis was vague. She said that this period was simply "plucked out of the air" and that the Tribunal should not accept it. 12 The Tribunal must make a finding, based on the evidence, as to the period that Mr Mooney would have continued working. It is true that Mr Mooney's evidence is not explicit. That is because he did not know for sure how much longer he would have continued working. Nevertheless he gave an estimate of that period, being 1 to 2 years. Mr Mooney was not cross-examined in relation to that evidence and we accept that it is a genuine estimate of the time he would have continued working. Mr Mooney is claiming damages for one year, not two. Given his uncontroverted evidence on this point, we accept that estimate for the purpose of calculating economic loss. Mitigation of loss 13 According to the respondent, Mr Mooney did not mitigate his loss because he refused an offer to continue in employment pending the outcome of the Internal Affairs investigation. Mr Becket representing Mr Mooney said that it was not reasonable for Mr Mooney to accept this offer because: · he first heard of it nearly 4 months after he tendered his resignation; · he could not go back to his own job; · he was scared that he would be sent outside Sydney; and · he did not have any confidence that the Internal Affairs investigation would be conducted impartially. 14 Ms Winter's response to Mr Mooney's evidence in relation to the Internal Affairs investigation was that Mr Mooney had never complained about the conduct of either of the two officers who were assigned to conduct the internal investigation, so there was no basis on which he could have considered them to be biased. 15 Given the evidence and the submissions put by the parties, we are not satisfied that Mr Mooney's refusal to accept the respondent's offer of re-employment was unreasonable. He did not find out about the offer for nearly 4 months after he had tendered his resignation, his old job was not available and he did not know where he would be sent. Finally, it is understandable that Mr Mooney did not have faith in the objectivity of Internal Affairs investigation given that the police officers involved were from his old unit. Consequently the respondent has not established that Mr Mooney unreasonably failed to mitigate his loss. 16 Based on these findings, Mr Mooney is entitled to damages for economic loss in a sum in excess of $40,000. As the Tribunal does not have jurisdiction to order damages in excess of $40,000, that is the amount of damages that should be ordered. Order 1 Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $40,000 by way of damages for economic loss. 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