Damages for breaches of discrimination law – The contemporary Australian jurisprudence and practice
Australian Bar Review
School of Business and Law
This article critiques the oft-quoted proposition that tort principles should be applied to the assessment of damages for unlawful discrimination. We argue that the jurisprudential foundation for the recovery of damages for unlawful discrimination differs to that for damages in tort, and explain how this difference can lead to practical differences in their assessment. While it is legitimate to be guided by the principles in analogous tort cases, there is a fault line beyond which the application of tort principles must yield to the statutory direction for the assessment of damages for unlawful discrimination. We identify this fault line in our article. The remainder of the article is devoted to exploring the contemporary jurisprudence in the practical assessment of damages for unlawful discrimination. We incorporate here a discussion of the broad principles that apply to the discretion to award damages, followed by a brief analysis of the criteria that govern the award respectively of aggravated and exemplary damages.