THE ASSESSMENT OF DAMAGES
322 It is now necessary to consider the appropriate award of damages or other relief to be granted to Ms Poniatowska.
323 In her application, she seeks the giving of an apology or apologies from those respondents against whom adverse findings have been made.
324 I do not propose to direct that any apology should be ordered against any respondent in the particular circumstances. Ms Poniatowska has already received an apology from Ms Sharrad in respect of the June 2005 allegations, and from Mr Lotito in respect of the Lotito allegations. Although I have made adverse findings against the respondents other than Mr A Hickinbotham and Homes, in my discretion under s 46PO(4) of the HREOC Act, I do not propose to order that any further apology be given.
325 There are a number of reasons for that. In the first place, in my view, the adverse findings made against the respondents in respect of the conduct concerning them individually is sufficient recognition for Ms Poniatowska of the inappropriateness of that conduct. The imposition upon those respondents, who variously denied the conduct specifically attributed to them or in some respects denied its significance, would put them in the position of requiring them to apologise for conduct which they did not accept that they had severally engaged in: see for instance the observations of Branson J in Jones v Toben (2002) 71 ALD 629 at [106]; Jones v The Bible Believers' Church [2007] FCA 55 at [65].
326 In concluding submissions, senior counsel for Ms Poniatowska did not strenuously urge that an order should now be made requiring an apology, or a further apology, from any of the respondents.
327 Principally, the claimed relief is monetary compensation for the conduct which has been engaged in. Such relief may be granted, following my satisfaction of unlawful discrimination on the part of the respondents identified, contrary to s 46PO(4)(d) of the HREOC Act, involving sex discrimination and sexual harassment contrary to the SD Act.
328 In the light of my findings, that is an appropriate form of relief for the unlawful discrimination which has occurred.
329 It is necessary to explain why the compensation to be ordered is confined to an order against ESA in the first place. In the submissions both on behalf of Ms Poniatowska, and on behalf of the respondents (other than Mr Lotito), no proposition was put forward that separately compensation should be awarded against Mr Flynn concerning the May 2005 allegations, or against Ms Sharrad concerning the June 2005 allegations, or against Mr Lotito concerning the Lotito allegations. Indeed, in the light of my findings, it is only the May 2005 allegations and the Lotito allegations which amount to sexual harassment. The balance of my findings relate to sex discrimination by ESA in conjunction with or through the conduct of its employees, particular Mr M Hickinbotham and Ms Sharrad. I did not find the April 2005 allegations, the August 2005 allegations or the September 2005 allegations proved so there is no separate basis to make a separate award of compensation against Mr A Hickinbotham or Mr M Hickinbotham or Ms Sharrad (in relation to the August 2005 allegations).
330 Because neither Ms Poniatowska nor the respondents (other than Mr Lotito) suggested that separate compensatory relief should be awarded against Mr Flynn or Mr Lotito (or possibly Ms Sharrad in respect of the June 2005 allegations), I do not propose separately to determine the nature and extent of any relief which I might otherwise have granted by way of compensation for their particular conduct. In respect of the May 2005 allegations and the Lotito allegations, each of which I have found to have constituted sexual harassment, and therefore unlawful discrimination contrary to the HREOC Act, had specific submissions been directed to the appropriate form of relief for that particular conduct, I would have granted compensatory relief. The evidence does not go so far as to suggest that, in the overall picture, either the conduct constituting the May 2005 allegations or the conduct constituting the Lotito allegations of itself, would have caused Ms Poniatowska to suffer significantly, or in particular would have caused her to lose her employment. The award of damages would have been compensatory, without any element of economic loss. It is unnecessary to go beyond that.
331 It should be noted that none of the medical evidence specifically focused upon the particular consequences of the May 2005 allegations or the Lotito allegations, remote from the broader contextual picture which my findings present.
332 That may be why the broader approach to compensation has been taken on behalf of Ms Poniatowska. It is her case that, to the extent that I have made findings adverse to the respondents in respect of the various allegations made by her, compositely they have led to significant pain and suffering and hurt and humiliation on her behalf, to a significant mental illness, and importantly to a significant impairment in her earning capacity.
333 I accept Ms Poniatowska's evidence that, following the May 2005 allegations and the way in which her complaint to Ms Sharrad was addressed, she was concerned and somewhat upset about the lack of responsiveness of the Hickinbotham Group to that conduct. There is no evidence to suggest that such conduct had any dramatic adverse impact upon her, either in the short term or, by itself, in the longer term. However, in my view, the June 2005 allegations, and then not long afterwards the Lotito allegations, and the way in which those allegations were addressed by ESA through Mr M Hickinbotham are significant. I accept Ms Poniatowska's evidence that the response of Ms Sharrad, when Ms Poniatowska expressed to her some concern about being assigned to work with Mr Lotito, was made in a public environment in a robust setting. I accept that Ms Poniatowska thereby felt embarrassed and humiliated because she felt that the reaction of Ms Sharrad in what she said and how she said it amounted to some suggestion that she had a propensity at least to participate in or to be attracted to such conduct in the workplace. I have also found that Ms Poniatowska believes that she became the object of snide commentary by other building consultants whilst at the head office. Whether her belief is correct is not a matter about which I am able to make a finding. I do not assume that such conduct was engaged in by other building consultants. However, that is not inconsistent with accepting Ms Poniatowska's evidence, as I do, that that was the perception she had subsequent to those events about the attitude of her co-workers when they were together in the workplace. I therefore accept that she felt embarrassed and humiliated, and somewhat isolated in the workplace, following those events and that she thereby felt distressed and upset. I do not need to repeat my findings as to how events in relation to those allegations evolved, more particularly how they were addressed by the Hickinbotham Group in the period June to August 2005.
334 I do accept that her sensitivity persisted through the latter months of 2005 up to and after, the first warning letter.
335 Following the first warning letter, and her sense of unfairness and victimisation which by then she had developed, her condition worsened. I accept her evidence that she became very agitated following the first warning letter, not because of its correctness but because of its content in the context of what she regarded as victimisation. I have found that it was an unwarranted warning letter, as were the subsequent warning letters and the suspension letter, and were directed towards setting the scene for her employment to be terminated ostensibly for reasons of work performance but actually because of her attitude to certain types of conduct in the workplace.
336 I find that from December 2005 or thereabouts, by reason of the sensitivity and embarrassment she felt in the workplace, and the further (warranted) sense of victimisation following the first warning letter, she suffered more significant symptoms of feeling depressed, insomnia, dizziness, some difficulty in concentration, shortness of breath and palpitations, anxiety, and some loss of motivation. Those symptoms, of course, did not all present at once but presented over a period of time the next month or two so that she saw her general practitioner in January 2006. In February 2006, she again saw her general practitioner (by that time Dr Ekanayake) when she was very depressed and crying and sleeping poorly. She was prescribed anti-depressant medication at that time. Following her termination of her employment, as I have noted, she brought a claim for unfair dismissal in the Industrial Relations Commission of South Australia in March of 2006. Her evidence was that she withdrew that claim on 10 May 2006 when she had secured alternative employment as a building consultant with another building company, and because she felt much more stressed in the context of that claim. She commenced work with that building consultant on 22 May 2006 and remained in its employment until September 2006 when she stopped working for it. She reported to that employer that she was ceasing work for family reasons, but she said (and I accept) that it was because she did not feel able to cope with that work with the ongoing symptoms which she was experiencing.
337 In fact, in August 2006 she was referred to a specialist psychiatrist, Dr Jha for assessment and treatment of depression and anxiety, and he subsequently saw her in September 2006 and supervised her ongoing medication for those conditions, as well as prescribing a sedative to help her to sleep. Her condition persisted.
338 In February 2007, she was referred by Dr Ekanayake to another consultant psychiatrist, Dr Czechowicz. He also diagnosed anxiety and depression with an adjustment disorder. Over the period of subsequent consultations, he observed features of post traumatic stress disorder, the relevant trauma having been what occurred during her employment with ESA and how she was treated in relation to what had occurred to her.
339 I shall refer to the significance of the specialist medical evidence shortly.
340 In April 2007, Ms Poniatowska was also referred to a psychologist, Ms Dowling for psychological assessment and treatment in relation to her condition. That was appropriate, according to the views of Dr Czechowicz. Ms Dowling also diagnosed her with acute distress and an anxiety disorder with mixed anxiety and depression. She too has continued to consult Ms Poniatowska from time to time thereafter.
341 In about mid to late 2007, Ms Poniatowska had a trip to Poland to see her relatives. She was clearly able to manage that trip.
342 Nevertheless, she continued to experience the symptoms referred to and to receive the treatment referred to. She did not sit idly by. In 2006, she also commenced studying a law degree. In that year, she successfully completed one of the two units which she undertook. In 2007, whilst studying part-time, she completed successfully four of the four units which she then undertook, and in 2008 she completed two of the three units which she undertook. She found studying difficult because of a reluctance to mix in a concentrated social environment, such as a public lecture. She remained withdrawn and was able to receive many of her lectures online. I assume she is continuing studying towards that degree. I will make findings below as to her future prospects of completing it, and more generally in relation to her incapacity.
343 Her medical assessment and management has remained since 2007 with Dr Ekanayake, Dr Czechowicz and Ms Dowling.
344 The only other medical evidence called was from another specialist psychiatrist Dr Ewer. He examined Ms Poniatowska at the request of the Hickinbotham Group on 6 May 2008 and provided a report of that day concerning her condition, and a supplementary report responding to certain questions provided to him.
345 Dr Ewer's evidence put a somewhat different perspective upon Ms Poniatowska's condition. He diagnosed a major depressive disorder, but he had concerns about her reliability as an historian, and considered that her condition included significant paranoid ideation. He nevertheless agreed with the form of treatment prescribed by Dr Czechowicz. He quite legitimately pointed out that the reliability of Ms Poniatowska as a reporter of the events to which she attributed the development of her symptoms was critical. He did not presume to make a determination as to her reliability, other than to note that on certain testing there was some indication of symptom magnification. He recognised that, if the more significant allegations she made were correct, then her major depressive disorder could flow from her employment and the way she had been treated in her employment. If it were not, (over-simplifying his evidence), then her major depressive disorder could result from her employment only in the sense that she did not accept the reliability of or the justification for the several warning letters and termination letter, and so has reacted adversely to them, even though the foundation for those letters was an appropriate one. In that event, she has some paranoid and false ideation about the foundation for them.
346 My findings indicate that, in large measure, the foundation for her depressive disorder is one warranted in fact. Having taken that step, there is little disagreement then between Dr Ewer and Dr Czechowicz.
347 Because Dr Ewer expressed his views provisionally, depending upon the assessment made of Ms Poniatowska as a reliable historian, and because ultimately I have largely accepted her evidence in relevant respects as reliable, I prefer the evidence of Dr Czechowicz to the extent that it disagrees with the evidence of Dr Ewer. However, it does not dramatically differ.
348 It should, however, be observed lest it be thought that I have overlooked it, that I have not accepted all of Ms Poniatowska's evidence and I have in fact rejected certain of the claims she made, in particular concerning the April 2005 allegations, the August 2005 allegations, and the September 2005 allegations concerning respectively Mr A Hickinbotham, Ms Sharrad and Mr M Hickinbotham. I have been conscious of those findings, and of their significance in terms of assessing the reliability of Ms Poniatowska in all respects of her claim throughout. However, for the reasons I have given, I have largely accepted her evidence.
349 In the light of the findings I have made as to what transpired whilst Ms Poniatowska was employed by ESA, the medical evidence to which I have referred indicates that from late 2005 or thereabouts Ms Poniatowska developed depression and anxiety, from which she has continued to suffer quite significant symptoms since that time, perhaps somewhat eased as a result of treatment. I find that the unlawful discrimination of ESA has caused those conditions and their consequences.
350 On the basis of the evidence, I find that she has since early 2006 at least suffered from an adjustment disorder with mixed anxiety and depression as a result of the unlawful discrimination of ESA. It has been a severe depression. I do not need to find whether she has suffered post traumatic stress disorder in addition, as any symptoms in relation to it (if she suffers from that condition) have been of a similar nature to those suffered from the other conditions, and the future for her is no worse by any additional diagnosis of post traumatic stress disorder than from her primary conditions. I also find that those conditions are caused by the conduct of the Hickinbotham Group in the way I have described above, that is by its sex discrimination and therefore by its unlawful discrimination.
351 The future for Ms Poniatowska is not a bleak one. Although I accept that she was unable to work in the building industry as a building consultant, at least from about September 2006 when she ceased work, and has been substantially disadvantaged by depression and anxiety since that time, she has not been bedridden or greatly disabled. In her day to day life she has continued to manage competently. She has continued to bring up her children, albeit she says perhaps with some more difficulty and with less communication ideally than would be the case. She has attended to her personal needs, the shopping, the maintenance of the house for the family and herself, and she has gone out from time to time on social occasions. She has had a trip to Poland. She has been able to study a law degree, or units of a law degree, albeit part-time and albeit with the difficulty to which I have referred.
352 The evidence is that the persistence of litigation is an impediment to her progress, and to what on all medical accounts is her likely full recovery. The evidence is that there is a range of periods over which she is likely to recover. It ranges from about six months to about two years, when she is likely to be able to return to full-time work. Clearly, the resolution of this case will remove an impediment to her medical progress. I find that upon the resolution of this case, she is likely to progressively improve in her condition to the point where, at the expiration of about one to two years, she is likely to be able to return pretty much to any form of work. Over that time, if she chooses, she will be able to progressively increase her capacity to study, and to mix socially with other students or to attend lectures in public more comfortably, and so to improve her capacity to study. She may choose to work in the meantime part-time, or she may choose over time to cease studying and to seek alternative employment. She has clearly demonstrated a sufficient intellectual ability to be able to complete that further degree if she chooses.
353 In my judgment, allowing for what is now some years of quite considerable personal distress and unhappiness caused by her underlying psychiatric condition brought on by the circumstances to which I have referred, it is appropriate to make a not insignificant award of damages by way of compensation. In my view, an appropriate amount to reflect both the past and the future disadvantage for pain and suffering which she has experienced and will experience until her recovery is in the order of $90,000. I have made an allowance for the risk for ongoing but diminishing symptoms for some time after the expiration of two years.
354 I also find that to a large measure Ms Poniatowska has been unable to work for the period from September 2006 to the present time. Her earnings with ESA over the period of some 11 months (although she probably did not work profitably for much of January and February 2006), including her superannuation, were about $82,000. The evidence indicates that she incurred expenses somewhat in excess of 10% of her earnings by having to provide her own car and telephone in that employment. Those earnings, because of the timing of the completion of the contract which she arranged, were spread over the period from January 2005 to May 2006, so I should also make some allowance for the delayed receipt of income. Had she maintained employment with ESA, however, a steady stream of not insignificant income would have been maintained. In the four or more months she worked for the other building consultant, her income was in the order of nearly $18,000. There is other evidence as to Ms Hopko's earnings in years subsequent to 2005 when she became a more experienced building consultant. They are not insignificant. I also slightly reduce the amount which I would otherwise order for past loss of earning capacity to reflect the fact that Ms Poniatowska in, my view, may have been able to undertake some but not much part-time work over the last few years had she chosen to do so instead of studying.
355 Doing the best I can, on the limited information which has been available, in my view an appropriate allowance for past loss of earning capacity, after making a reduction for the expenses she would have incurred in earning it relating to a car and phone, would be in the order of $200,000.
356 As I have found, she is likely to recover significantly over the next two years to the point where she is able to work in an unrestricted way, albeit with some risk of ongoing impairment, after that time. There is a prospect of her being able to return to work in an earning capacity significantly prior to that date. There is also a prospect of her recovery being somewhat delayed to a full recovery. In my view, the appropriate allowance for future loss of earning capacity in the circumstances should be $140,000.
357 In addition to those factors, it is appropriate to make a small allowance for future medical expenses. On the evidence, she will need to see Ms Dowling regularly for some time, Dr Czechowicz from time to time, and Dr Ekanayake. She will incur ongoing medication expenses, although they are relatively slight. The evidence about them is minimal. I allow a sum of $3000 for all aspects of her future medical expenses. No past medical expenses were proved. I do not include an allowance for them.
358 The total of those amounts is $433,000. In my view, stepping back and considering the consequences of the unlawful discrimination of the Hickinbotham Group towards Ms Poniatowska, and her prospects in the future based on the medical evidence, that is a not inappropriate figure for compensation for the unlawful discrimination overall.
359 For the reasons I have given, I will not separately make orders against Mr Flynn or Mr Lotito or Ms Sharrad or Mr M Hickinbotham. The appropriate orders should be made primarily against ESA. In the event that that amount is not paid by ESA, for whatever reason, I will reserve liberty to Ms Poniatowska to apply for orders to be made, to the extent that it is appropriate, against each of the other respondents (other than Homes).
360 It is also appropriate to make some allowance for interest on that compensation from time to time. The past economic loss is, of course, an accumulating amount as indeed is the way in which the amount for past non-economic loss has been determined. Doing the best I can on the limited material, I propose to allow a figure of $30,000 for interest to be included in that compensation figure.
361 I do not make an order for exemplary or aggravated damages. Neither of those claims were made in the application itself. To an extent, the conduct which I have found to have contravened the SD Act, and consequently to have been unlawful discrimination contrary to the HREOC Act, was partly as a result of the inadequacy of systems for managing complaints of sex discrimination or sexual harassment in the workplace on the part of ESA, and perhaps an inappropriately robust work environment. It is only at the point of the reasons for Ms Poniatowska's termination that, in my view, such a prospect of deliberately inappropriate conduct was undertaken by ESA. In that regard, however, without the benefit of detailed submissions seeking to refine the basis upon which such damages might be quantified, and isolated from the other forms of conduct which underlay and gave rise to the desired termination of her employment, I am not prepared to make such a determination.