4.3 Reassessment of general damages on appeal
72 Section 46PO(4)(d) confers a power on the court to make orders, as it thinks fit, including an order for damages by way of compensation for the loss and damage suffered by a victim of "unlawful discrimination" - an expression that includes age discrimination in contravention of the AD Act.
73 In Clarke v Nationwide News Pty Ltd [2012] FCA 307; 201 FCR 389 at [337], Barker J noted that it was generally accepted that an order for damages by way of compensation for loss or damage suffered because of the conduct of a respondent may be made under s 46PO(4)(d) of the AHRC Act where actual loss or damage has been suffered and there is a causal connection between the loss or damage suffered and the respondent's conduct; see also Reurich v Club Jervis Bay Ltd [2018] FCA 1220 at [351] (Markovic J).
74 In the present case, the primary judge found that an order for damages should be made because of age discrimination arising from hurt and offence by the way Mr Gutierrez perceived he was being treated as expendable, for which he should receive damages for his hurt feelings and an adjustment disorder that did not preclude him from working, which the primary judge characterised at [162] and [177] as a "mild adjustment disorder". No challenge is made in this appeal to the finding of age discrimination, or to the finding that Mr Gutierrez suffered harm as a result.
75 In order to revisit the question of the appropriate sum of general damages it is necessary to review the materials that were before the primary judge.
76 The evidence in chief of Mr Gutierrez was that after the 19 July 2018 conversation his mental health declined significantly and that he suffered symptoms including uncontrolled anger and emotions, loss of concentration, tiredness, insomnia, depression, anxiety and paranoia. He said that after he fell out with MUR, he felt depressed, directionless and hopeless. From 11 August 2018 he began to see a psychologist, Dr Lutchman, every fortnight and then once a month. Dr Lutchman was not called to give evidence. Mr Gutierrez gave evidence that he felt like the company took away his choice as to when he would stop working and his freedom to make that choice. He did not see termination coming and felt that his 25 years of service was taken for granted.
77 Mr Gutierrez was asked in cross examination about the symptoms that he described to Dr Kaplan but was not materially challenged on the aspects of his current abilities that he described, which are set out in section 4.2.4 at [57(4)] above.
78 I have summarised above the evidence of Mrs Gutierrez, which addressed the change in Mr Gutierrez's behaviour that she has observed since 19 July 2018.
79 I have also summarised the findings of Dr Kaplan, which are set out in section 4.2.4. The following points arising from his report warrant repetition. They are Dr Kaplan's unchallenged conclusions:
(1) That Mr Gutierrez suffers from adjustment disorder with depression and anxiety;
(2) This arises entirely "from his termination by MUR Australia Pty Ltd; that is, the termination is 100% responsible for his condition";
(3) "If Mr Gutierrez wins the case, he will be left with enduring feelings of humiliation, rejection and failure; if he loses, he will be more depressed and this would be on a sustained basis. It is not possible to be more specific about his recovery time";
(4) Mr Gutierrez is seeing his doctor, goes to a psychologist and is taking antidepressants;
(5) Mr Gutierrez will not be able to work in any capacity until the adjustment disorder has resolved. This will be dependent on the outcome of his case and cannot be predicted with any accuracy at this stage. His incapacity arose from the time he learned of his termination.
80 MUR submits that the adjustment disorder suffered by Mr Gutierrez may properly be characterised as "mild" and that Dr Kaplan provided no reasoning to support his conclusion that Mr Gutierrez would be unable to work. It submits that, as a consequence, the primary judge did not err in concluding that the harm that Mr Gutierrez suffered was no more than "mild". However, for the reasons identified in section 4.2.4 above, absent evidence to contradict Dr Kaplan's evidence, and absent any such matters put to Dr Kaplan in cross-examination, the Court would be slow to discount expert evidence of this nature. On the facts of the present case I do not consider that it is appropriate to do so. Dr Kaplan used no such adjective, and his opinions do not reflect that "mild" was a term that he would have used to describe Mr Gutierrez's condition.
81 MUR submitted, by reference to Exhibit R2, that the psychological impact of an adjustment disorder "will not have ongoing effects". The cited exhibit is apparently an extract from a book entitled "Diagnostic and statistical manual of mental disorders" published by the American Psychiatric Association. It is undated. On one page it identifies "Diagnostic Criteria" for Adjustment Disorders by reference to symptoms and what it says will amount to behaviourally significant evidence. This manual was not put to Dr Kaplan and no expert was called to give evidence as to its proper application. No weight can be given to the general statements to be found in it.
82 MUR further submits that the primary judge correctly set aside Dr Kaplan's opinion evidence that Mr Gutierrez was unable to work on the basis that Mr Gutierrez had attended and passed two training courses in the months after his termination. However, the cross examination reveals that the training courses comprised one day a week over successive weeks, which in my view is a poor approximation for full time work. Nor can the cross examination be relied upon to support a conclusion that Mr Gutierrez accepted that he could have taken a position with his daughter's business. The transcript does not support that contention. Furthermore, whilst Mr Gutierrez did not give evidence in terms that he was unable to work, the description that he gives of his symptoms readily gives rise to that inference. This was quite clearly the view that Dr Kaplan took when he gave his professional opinion that, having regard to his examination of Mr Gutierrez, he was not in a condition that would permit him to return to work. No cogent reason has been advanced on behalf of MUR that warrants setting that opinion to one side.
83 In his Amended Statement of Claim, Mr Gutierrez claimed general damages of "not less than $150,000". On appeal, he repeats this claim, asserting in submissions an entitlement to an award of damages "much greater" than that awarded for pain and suffering in Oracle which was $100,000.
84 Justice Kenny considered in Oracle that the award of $18,000 of damages for sexual harassment was manifestly inadequate having regard to the nature and extent of Ms Richardson's injuries, prevailing community standards, and therefore that the level of damages awarded by the trial judge was low and bespoke error (at [81]). In that case, the primary judge had found that Mr Tucker's conduct occasioned Ms Richardson distress that was manifest in a noticeable change in her demeanour and in significant physical symptoms. His conduct caused her psychological injury: she suffered a chronic adjustment disorder with mixed features of anxiety and depression. This psychological damage was "not insignificant" (see [74]). The trial judge had found (at [209]):
I am satisfied that Mr Tucker's conduct, over a period of some months, was very distressing for Ms Richardson, who did her best to deal with it alone for some considerable time. Her partner, friends and acquaintances noticed changes in her demeanour. Ms Richardson noticed changes in her own physical condition, including the management of her diabetes, which seemed to her attributable to her heightened feelings of stress and anxiety. There was no medical evidence to make this connection directly but I am prepared to take into account Ms Richardson's own observations of her psychological and physical responses as being consistent with the medical evidence …
85 Justice Kenny found at [95] (Besanko and Perram JJ agreeing):
An award of damages by way of compensation under s 46PO(4)(d) of the AHRC Act is to compensate for the injury suffered by the person harassed: see Hall v A & A Sheiban at 256 (Wilcox J), 281 (French J). In making an award, a court necessarily has regard to the general standards prevailing in the community. As indicated above, other awards of general damages for injury of the kind suffered by Ms Richardson may provide some measure of manifest inadequacy since they may provide some guidance as to what contemporary courts have discerned as proper compensation for such an injury according to generally prevailing community standards. Cases in the field of personal injury may be particularly useful because the object of an award of damages for non-pecuniary loss in such cases is much the same as an award of damages under s 46PO(4)(d) of the AHRC Act: see O'Brien v Dunsdon at 78 and Teubner v Humble (1963) 108 CLR 491 at 507 (Windeyer J); and Qantas Airways Ltd v Gama at [96].
86 Her Honour then proceeded to review the resulting awards made in cases not concerning sexual harassment, where analogous injuries had been found, to demonstrate that whilst the award of $18,000 to Ms Richardson was in line with other awards in sexual discrimination cases, the outcome of sexual discrimination cases was out of step with awards made for damages suffered for pain and suffering and loss of enjoyment of life in other categories of case, such as damages for personal injury suffered as a result of negligence (at [96] - Amaca Pty Ltd v King [2011] VSCA 447; 35 VR 280), bullying and harassment in employment (at [99] - Willett v Victoria [2013] VSCA 76; 42 VR 571 and [101] in Swan v Monash Law Book Co-operative [2013] VSC 326; 235 IR 63) and misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) (at [105], referring to Walker v Citigroup Global Markets Pty Ltd [2006] FCAFC 101; 233 ALR 687 at [91] (Gyles, Edmonds and Greenwood JJ)). Her Honour concluded that the quantum of awards historically made in these other fields to successful claimants in situations "not wholly unlike Ms Richardson's reveals a substantial disparity between the level of those awards and the typical compensatory damages provided to victims of sexual discrimination and harassment" (at [109]).
87 The facts in Oracle are, of course, different to those in the present case. Here, Mr Gutierrez had indicated to his employer that he intended to retire in the third quarter of 2019. The Age Discrimination as Found arose from a single conversation in July 2018. Mr Gutierrez misapprehended the effect of the conversation, with the consequence that he considered that his employment had been terminated. In that sense, it may be contended that the Age Discrimination as Found might have been a cause for the harm suffered, but was not the sole cause for that harm, part of the harm being Mr Gutierrez's own misunderstanding that his employment had ceased.
88 However, in Oracle the Full Court considered that discriminatory conduct which contributed, but was not the sole contributor, to the onset of injury is a loss "suffered because of the conduct of the respondent". Kenny J observed at [69] (Besanko and Perram JJ agreeing) that this proposition was accepted without question by French and Jacobson JJ in Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [99] in the course of applying s 46PO of the AHRC Act. Her Honour in Oracle went on:
69 Such an acceptance reflects the remedial nature of s 46PO(4)(d). In reflecting on s 82(1) of the Trade Practices Act 1974 (Cth), which was in its terms relevantly indistinguishable from s 46PO(4)(d), Hayne J explained in Henville v Walker at 509 [163] :
[S]eldom, if ever, will contravening conduct be the sole cause of a person suffering loss. Other factors will always be capable of identification as a cause of their loss … What the Act directs attention to is whether the contravening conduct was a cause. It does not require, or permit, the attribution of some qualification such as "solely" or "principally" to the word "by".
(Emphasis in original)
(See also Henville v Walker at 482-483 [68]-[72] (Gaudron J).)
70 In I & L Securities Pty Ltd v HTW Valuers at 130 [62] Gaudron, Gummow and Hayne JJ elaborated that:
As was recognised in Henville v Walker there may be cases where it will be possible to say that some of the damage suffered by a person following the contravention of the Act was not caused by the contravention. But because the relevant question is whether the contravention was a cause of (in the sense of materially contributed to) the loss, cases in which it will be necessary and appropriate to divide up the loss that has been suffered and attribute parts of the loss to particular causative events are likely to be rare. Further it is only in a case where it is found that the alleged contravention did not materially contribute to some part of the loss claimed that it will be useful to speak of what caused that separate part of the loss as being "independent" of the contravention.
(Emphasis in original)
See also, in relation to damages for economic loss, Oracle at [177]-[179], [184]-[189] per Besanko and Perram JJ (Kenny J agreeing).
89 Accordingly, although Mr Gutierrez was found to have decided to terminate his contract of employment, and that decision did not form part of the Age Discrimination as Found, nevertheless the age discrimination was, if not the sole cause, plainly enough a cause of his subsequent inability to work and the symptoms described by Dr Kaplan, Mr Gutierrez and Mrs Gutierrez. In my view the effect of this evidence is to paint a picture of a man who has suffered considerable loss of amenity of life, including a diagnosed inability to work, loss of enjoyment of social aspects of his life, and an adjustment disorder with depression and anxiety. The primary judge found, and I would in any event find, that a material cause of this was the Age Discrimination as Found.
90 In Oracle, Kenny J noted several cases where damages were awarded as compensation for pain and suffering and loss of enjoyment of life. In Willett, the Victorian Court of Appeal (Tate and Priest JJ) substituted a jury award of $108,000 for $250,000 having regard to Ms Willett's exposure to bullying and harassment. Ms Willett's injuries were serious. At trial she was undergoing treatment in a psychiatric hospital following an attempted suicide. She suffered from an ongoing and persistent major depressive disorder which, while varying in severity from mild to moderate, affected her in an invasive way on a daily basis requiring significant doses of anti-depressant and associated medication which rendered her permanently incapacitated for her pre-injury work as a police officer, although she was able to work in another occupation. As summarised by Kenny J in Oracle at [100]:
Tate and Priest JJA observed (at [50]), "[t]he negligence of the respondent had thus … deprived [her] of the career she had chosen, in which she was proficient, and which she found fulfilling. In these circumstances, their Honours held (at [61]) that the jury verdict was "so small as to be unreasonable; so inadequate that no jury could reasonably have awarded them and out of all proportion to the severity of the circumstances of the case". In reaching this conclusion, Tate and Priest JJA endorsed the statements in Amaca Pty Ltd v King that society places a greater value on the loss of enjoyment of life and the experience of pain and suffering than previously and that awards of damages for injury of this kind had increased: see Willett v Victoria at [79]-[80].
91 Kenny J also referred to Walker v Citigroup where, in an action for damages for misleading and deceptive conduct under the Trade Practices Act, the primary judge's award of $5,000 was considered to be a significant under-assessment of loss, and replaced the award with the amount of $100,000, the harm attributable to that award being that Mr Walker's marriage had broken down and he had lost the day-to-day company of his children in the year after the unlawful conduct in question. The Full Court accepting Mr Walker's uncorroborated, but unchallenged evidence that he had suffered "a considerable dislocation of his life with serious long-term effects" as a result of the unlawful conduct (Oracle at [106]).
92 Having regard to the particular facts of this case, the evidence of Dr Kaplan and the evidence of Mr and Mrs Gutierrez, in my view the general damages that ought to be awarded are considerably less than those awarded in a case such as Willett, but the harm that he suffered might properly be regarded to be comparable with that identified in Oracle and Walker. Although there is necessarily an element of imprecision in the analysis, I consider that the appropriate award should also be $90,000.