The medical evidence
216 Expert medical evidence was given in the proceedings by two psychiatrists, Dr Phillips and Dr Peter Klug, and by Ms Richardson's treating psychologist, Dr Ronnie Zuessman.
217 Until Ms Richardson saw Dr Phillips, who was asked by her solicitors to prepare an expert report for the purposes of her case, she had not sought specific medical, psychological or psychiatric help. Although Ms Richardson saw a counsellor after her meeting with Ms Sampayo in November 2008, she found the experience unhelpful and ceased to attend. She accepted in her evidence that she sought no further help until after the proceedings had been commenced. Ms Richardson saw Dr Phillips on 17 March 2011 and 5 April 2011 for the purpose of an expert report for the proceedings. In his report of 24 May 2011 Dr Phillips recommended psychotherapy. I infer that he had raised the matter in some form before then. Ms Richardson was referred by her General Practitioner to Dr Zuessman in May 2011 and he commenced his consultations with her on 16 May 2011. When Dr Klug saw Ms Richardson on 12 July 2011 she had been to see Dr Zuessman five times. Before a second interview with Dr Klug on 4 August 2011, Ms Richardson had seen Dr Zuessman on a further two occasions.
218 Apart from a report that each of the experts provided for the purpose of the proceedings, Dr Phillips and Dr Klug met together in conclave on 4 November 2011 and provided a joint report. They met again, initially with Dr Zuessman and then without him, on 1 February 2012. Minutes for each session were prepared. Dr Phillips and Dr Klug gave concurrent oral evidence as independent experts. Dr Zuessman gave affidavit and short oral evidence as Ms Richardson's treating psychologist. All three experts were reliant on the history given to each of them by Ms Richardson.
219 Dr Phillips initially diagnosed Ms Richardson as suffering, from about June 2008, from an adjustment disorder with mixed anxiety and depressed mood. This is a recognisable and diagnosable psychiatric disorder. It is a stress-related disturbance not meeting criteria for some other specific disorder, nor operating merely as an exacerbation of a pre-existing disorder. In this sense I understand it to be a somewhat general and generic category of psychiatric disorder not readily classifiable in some other specific category. Some specific requirements must nevertheless be met. An adjustment disorder is related to a specific stressor(s) and has its own specific diagnostic criteria. The diagnostic criteria for an adjustment disorder were set out in Dr Zuessman's report in the following way:
29. The diagnostic criteria for an Adjustment Disorder involves:
A. The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).
B. These symptoms or behaviours are clinically significant as evidenced by either of the following:
1) marked distress that is in excess of what would be expected from exposure to the stressor
2) significant impairment in social or occupational (academic) functioning
C. The stress-related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of a pre-existing Axis I or Axis III disorder.
D. The symptoms do not represent Bereavement.
E. Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months.
Specify if:
Acute: if the disturbance lasts less than six months
Chronic: if the disturbance lasts for six months or longer
Adjustment disorders are coded based upon subtype, which is selected according to the predominant symptoms. The specific stressor(s) can be specified on Axis IV … (DSM-IV-TR p 683).
220 Dr Phillips initially opined that Ms Richardson's condition had become chronic. He identified the responsible stressor as initially Mr Tucker's behaviour. However, he also felt that Oracle's response, as described by Ms Richardson, made her mental state worse. He said:
87. Even more significantly, Oracle took an administrative decision to leave Mr Tucker in his previous role, yet to remove Ms Richardson from her senior position with the ANZ project and to assign her to less significant (even relatively menial) duties in NSW. This became an additional stressor for her. She felt demeaned and undervalued in the process, she sensed a lack of trust by her superiors in her role within the company, and she was made to pay a significant professional penalty for something she did not set up.
221 The description of events came from Ms Richardson. It was adopted and relied upon by Dr Phillips and informed his expert opinion. However, it must be borne in mind that if the assumptions on which the opinion was based are not established by the evidence, the opinion itself must either be adjusted or discounted to that extent. I have rejected significant elements of Ms Richardson's assertions. At this point, in order to understand the foundation for Dr Phillips' view, Ms Richardson's account of how she was treated must be borne in mind, but Dr Phillips' opinion must be treated with some care for the reasons I have given.
222 As a result of the way she said she was treated by Oracle, in Dr Phillips' view Ms Richardson's symptoms became depressive. He said:
90. Ms Richardson moved from suffering an adjustment disorder with mixed anxiety and depressed mood to develop a dysthymic disorder DSM IV TR 300.4. Dysthymic disorder is best described as a middle intensity but chronic depression spectrum disorder. Not uncommonly a person with dysthymic disorder will manage to work, but the fabric of their life will nevertheless be significantly damaged.
223 After consultation with Dr Klug, Dr Phillips modified his view, as I shall describe. However, he continued to feel that Ms Richardson's symptoms had not resolved by the time he saw her and that she then still suffered from a chronic adjustment disorder.
224 Dr Klug initially diagnosed Ms Richardson as having suffered an acute (possibly chronic) adjustment disorder with mixed features of anxiety and depression. His main point of difference from Dr Phillips, which remained after they had met twice in conclave, was that Dr Klug felt Ms Richardson's symptoms resolved (or at least were in remission) after she left Oracle.
225 After they had first met in conclave Dr Phillips and Dr Klug produced a very helpful joint report which identified the following matters:
1. Diagnosis
Both of us share the diagnostic view that Ms. Richardson has suffered from a mixed depressive and anxiety state. We both prefer the diagnosis of a chronic adjustment disorder with mixed features of anxiety and depression.
2. Identified Stressors
We agreed that the relevant stressors have been as follows:
a. Workplace harassment - we are both confident that this was a stressor for Ms Richardson while employed by Oracle.
b. We considered that administrative and hierarchal issues were pertinent with respect to the bureaucracy's response to her complaints. We, however, were not comfortable that it is within our areas of expertise to comment on these factors.
3. Response To Treatment
Generally a person with a chronic adjustment disorder responds to treatment. Psychotherapy in one form or another is likely to be the treatment modality of most use. It is of note that Dr. Phillips has not seen Ms Richardson since April 2011, prior to her beginning treatment with her psychologist, Dr. Ronnie Zuessman. Similarly, Dr. Klug has not reviewed her since early August 2011, some three months previously, at which time she had commenced and was continuing in treatment with Dr. Zuessman.
CONCLUSION
Given the above, we came to the conclusion that it would be wise for both of us to carry out a short review of Ms. Richardson to assess her current state and her response to treatment. If the relevant parties are in agreement it would also be wise to seek a report from her treating psychologist as well.
(Emphasis in original.)
226 Notwithstanding their joint recommendation Drs Phillips and Klug were not asked to see Ms Richardson again.
227 Dr Zuessman took a broader view of Ms Richardson's situation although he also diagnosed her as suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. Dr Zuessman attributed particular significance to the existence of the present litigation. In his report Dr Zuessman said:
28. In consideration of her current presentation, as well as the stress of continuing involvement with matters related to alleged sexual harassment and consequential involvement with legal processes, Ms [Richardson] can be regarded as experiencing an Adjustment Disorder With Mixed Anxiety and Depressed Mood, Chronic.
…
37. The continuation of the stressors of involvement with matters related to alleged sexual harassment and consequential legal processes have a negative impact on Ms Richardson's mental health and overall health. It is my opinion that the conclusion of these matters and Ms Richardson's attendance in fortnightly therapy for a period of six months will likely lead to a resolution of the adjustment disorder, though she will remain vulnerable to relapse should she encounter a significant life stressor in the future. Thus, it may be prudent for Ms Richardson to subsequently maintain periodic, supportive contact with a psychologist.
228 On 1 February 2012 Drs Phillips, Klug and Zuessman first met together and then Drs Phillips and Klug met again in the absence of Dr Zuessman. The minutes of the first meeting record:
On enquiry from Dr. Klug concerning the nature of the chronic stressor necessary for the diagnosis of a chronic adjustment disorder, Dr. Zuessman stated that this was the ongoing process of litigation and matters linked with it …
Dr. Zuessman reiterated that the continuation of the matters related to the legal process is contributing to the maintenance of her adjustment disorder …
Dr. Klug enquired as to whether Dr. Zuessman thought it appropriate to regard ongoing litigation as a relevant ongoing stressor when it was a matter of choice for Ms. Richardson to engage in litigation. Dr. Zuessman responded that she had a strong perception that wrong was done to her in the workplace and that she suffered an injury and it needs to be resolved.
…
Dr. Klug enquired as to whether Ms. Richardson continues to have an adjustment problem or not … Dr. Klug enquired of Dr. Zuessman whether he believes she continues to have an adjustment disorder given her ability to adjust appropriately.
229 I shall set out in full the minutes from the subsequent meeting between Dr Phillips and Dr Klug:
This conclave was between two independent experts with Dr. Zuessman no longer being present.
Dr. Phillips and Dr. Klug both agree that Ms. Richardson has suffered from an adjustment disorder, probably chronic in nature, indicating that the symptoms were/have been present for longer than six months. Dr. Phillips noted that, in his report of 24 May 2011, he referred to a diagnosis of a dysthymic disorder but regards this as being substantially the same as the diagnosis of an adjustment disorder.
Dr. Phillips noted that on Dr. Zuessman's evidence Ms. Richardson's state has improved. Dr. Phillips noted that he had, however, not seen Ms. Richardson for a long time with the last assessment being in May 2011. He is uncertain, in the absence of a recent personal assessment of Ms. Richardson, whether the diagnosis still applies.
Dr. Klug, who most recently assessed the plaintiff in August 2011, diagnosed her as having suffered from an adjustment disorder, probably chronic in nature, which is now in full remission. He based that on his view that the plaintiff had successfully adjusted in that she quickly found a comparable job with a new organization (EMC), and had been functioning well in Australia and in various parts of Asia, which included travelling extensively, living in Kuala Lumpur and monitoring and mentoring various project managers. He also noted that she is [in] a stable long-term relationship.
Both Dr. Phillips and Dr. Klug acknowledge that litigation is an ongoing stressor in its own right.
However, Dr. Klug added that he does not regard litigation, which Ms. Richardson has chosen to engage in, as being an ongoing stressor secondary to the initial work-related stressors. Dr. Klug regards her ongoing litigation as a separate situation.
Dr. Phillips took a different view. Dr. Phillips added that he cannot accurately separate the stressors experienced in the workplace and the consequent stressor of litigation. He believes that both matters should be taken into consideration.
It should be stated, however, that both doctors are in broad agreement regarding diagnosis with a difference as to whether she continues to suffer from that condition now.
230 These positions were largely maintained when Drs Phillips and Klug gave their evidence concurrently. In addition, Dr Phillips broadly agreed with Dr Zuessman that the process of litigation played an ongoing role in the diagnosis. Dr Klug thought the disorder had resolved. Their differing views may be seen from the following passages:
HIS HONOUR: … Dr Zuessman feels apparently that the conclusion of the litigation and six months further treatment should resolve Ms Richardson's present symptoms. He regards, I think, from what you've recorded in your second joint report, the ongoing litigation as being the stressor which is adding to the chronic characteristic of her present condition. What view do you take about that?
DR PHILLIPS: Your Honour, I broadly agree with that. I think there are in fact three stressors which rather interweave in Ms Richardson's matter, the first being the alleged harassment in the workplace, the second being the particular nature of the administrative response by the employer and the third being the process of litigation. …
HIS HONOUR: Dr Klug, you have a different view about this, I think.
DR KLUG: Yes. I have some difficulty with the view that litigation is the cause of an ongoing adjustment disorder. I believe that her adjustment disorder had resolved when I last [saw] her. I didn't regard her as being significantly symptomatic. She may very well be distressed by the ongoing litigation but I believed that her adjustment disorder had ceased. I think the relevant stressors engendering her adjustment disorder had ceased in the sense that she was no longer working at the organisation and she was no longer being harassed and she was no longer being exposed to the administration. I regard litigation as her choice …
231 Dr Zuessman's evidence, as treating psychologist, is capable of being understood as saying that it is only the ongoing litigation which is perpetuating Ms Richardson's condition and that her condition will resolve naturally once the litigation is over.
232 I do not accept the suggestion that litigation is a stressor which can be added to Mr Tucker's conduct, or Oracle's response, for the purpose of calculating damages. In any event, that circumstance cannot be brought satisfactorily within the medical requirements in the present case. In order to sustain a diagnosis of adjustment disorder (whether acute or chronic) it is necessary to identify a relevant stressor, or stressors, and come to a conclusion about whether the relevant symptoms have resolved (as required by the applicable criteria) within six months of exposure to the stressor(s) ceasing.
233 Any stressor represented by Mr Tucker's sexually harassing conduct ceased in November 2008. The stress of any requirement to stay in contact with Mr Tucker, even indirectly, ceased in December 2008. Even any stress represented by Oracle's own conduct (if it was relevant) necessarily resolved within six months of departure from Oracle. If Ms Richardson's response did not resolve within six months of the cessation of the relevant stressor her condition could not be diagnosed as an adjustment disorder. I do not accept the contention that the "consequences" could continue independently of the cessation of the stressors themselves in the present case, when there is such clear evidence of the definite cessation of the relevant stressors, and such unmistakeable removal of Ms Richardson from them.
234 It is significant also that Ms Richardson made a choice to actively seek and then accept work with EMC, which I am satisfied she was not forced, directly or constructively, to do. I accept Dr Klug's evidence as consistent with my own view of the evidence in the case:
DR KLUG: … the essence of an adjustment disorder is a failure to adjust and I believe that Ms Richardson did adjust very quickly. She found an alternative job. As far as I'm aware, she has been functioning normally in that job and it's an equivalent job.
…
HIS HONOUR: … Dr Klug, you see the necessity to relate the adjustment disorder to an identifiable stressor and you don't see one after March 2009.
DR KLUG: That's correct, your Honour.
…
DR KLUG: I think the stressor ceased once she had left Oracle and obtained another job, essentially, and she was no longer in the environment where the stressors occurred.
235 If the litigation is a stressor in this case, it is a stressor in its own right. It does not contribute to the diagnosis of psychological injury made out in the present case. The diagnosis made of Ms Richardson's psychological situation contemplates that the symptoms arising from her condition would have resolved well before she saw Dr Phillips or Dr Zuessman (or Dr Klug). Although Ms Richardson made a complaint to the AHRC in October 2009, the present proceedings were not commenced until June 2010. I do not accept Dr Zuessman's view that the stress of the litigation in which Ms Richardson is now engaged continues seamlessly from the stress occasioned by Mr Tucker's conduct.
236 I accept that Mr Tucker's course of conduct caused Ms Richardson to suffer a psychological injury, agreed by Dr Phillips and Dr Klug to be appropriately described as a chronic adjustment disorder with mixed features of anxiety and depression. Mr Tucker's conduct came to an end in November 2008, although exposure to him lasted until at least 10 December 2008. I accept the possibility that Ms Richardson's symptoms extended beyond exposure to Mr Tucker for the six months which the diagnosis accommodates, although none of the medical practitioners who saw her could be satisfied that was so except by accepting her report of her symptoms as accurate, as they each appeared to do. That leaves ample scope for acceptance of a diagnosis that her condition became chronic (because it lasted longer than six months).
237 The opinions offered by Dr Zuessman, Dr Phillips and Dr Klug must, however, be evaluated in light of my conclusion that Oracle is not independently liable to Ms Richardson for the way in which it responded to her complaint. Furthermore, I would not have been satisfied that Ms Richardson made out a case on the facts about Oracle's conduct to the level she described to those practitioners. I accept that Ms Richardson developed some sense of injustice regarding the manner in which Oracle handled and responded to her complaints, but I am not satisfied it was objectively justified at the same level as her perception. Counsel for Ms Richardson submitted that she was entitled to have full weight given to her subjective responses. However, in my view that principle (in effect that you take the victim as you find them) has no application to the present issue. Ms Richardson's subjective sense of dissatisfaction with Oracle, in my view, involved a substantial element of recasting the facts. The immediate and extended consequences of Mr Tucker's conduct must be taken into account when compensation is being assessed. However, that is not the case with respect to any perceived consequence which the experts may have attributed to Oracle's conduct.
238 It is apparent from Ms Richardson's counselling journal that a good part of the distress which she suffered, and which has been taken into account by Dr Phillips and Dr Klug in finally reaching their joint diagnosis, concerns her reaction to what she regarded as the inappropriate and unsympathetic manner in which the investigation into her complaint was carried out. In particular she was highly critical of Ms Sampayo for sending her an apology from Mr Tucker and of the length of time which the investigation took. This latter aspect is not something for which Ms Sampayo was responsible. It appears to have been the result of the inability of Ms Stratton to give the matter closer attention immediately after Ms Sampayo had reached her own conclusions. These are not matters about which I have made any finding of unlawful conduct. Indeed I am not satisfied that any criticism of Ms Sampayo is fair at all. Ms Richardson appears to have, in part at least, reacted to some feeling that she had lost control of matters once she complained about Mr Tucker's conduct. That is certainly so. She also appears to feel that her complaints were not treated with the degree of understanding, acceptance and endorsement that they deserved. That reaction is understandable enough but takes no real account of the need for Ms Sampayo to approach the matter more objectively than that if she was to carry out a proper investigation.
239 All these matters, so far as they are separate from the unlawful conduct which I have earlier identified, play no part in the assessment of general damages. Accordingly some attempt must be made to discount these features of Ms Richardson's reactions and distress from the compensation to be awarded to her.
240 In light of my findings that no cause of action other than sexual harassment has been made out, compensation may not be awarded independently against Oracle either for the fact that Ms Richardson remained in contact with Mr Tucker from 17 November to 10 December 2008, although that continued exposure may be taken into account in assessing the consequences for Ms Richardson flowing directly from Mr Tucker's own conduct.
241 Finally, I also accept the following evidence from Dr Klug, with which Dr Phillips did not disagree:
I would also like to say that, without in any way minimising what has happened with Ms Richardson, on the spectrum of stressors we are not talking about traumatic stress, and I think it's easy to refer to what has happened to her as being traumatising but psychiatrically this was not traumatising and an adjustment disorder is a mild condition. It's not even categorised as a major mood disturbance.
242 There were helpful submissions made about the quantification of damages and a range of decided cases was referred to. The applicant submitted that the award of general damages should be, at least, commensurate with that in Poniatowska v Hickinbotham [2009] FCA 680 ("Poniatowska"). In that case, the Court awarded general damages in the amount of $90,000. That award was upheld on appeal (Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92). In my view, Poniatowska is an inappropriate point of reference. The award of damages in Poniatowksa was linked to a finding of sex discrimination as well as specific instances of sexual harassment. The trial judge found that when Ms Poniatowska raised concerns regarding sexual harassment with her employer, she was "not regarded as the victim but as a problem presenter to be managed". Ms Poniatowska's employment was ultimately terminated not for reasons related to her work performance, but, on the trial judge's findings, because she was unwilling to tolerate sexual harassment and a robust work environment. These features were not replicated in the present case.
243 As the submissions for the second respondent pointed out, cases where the award of general damages for sexual harassment fell outside the range of $12,000 to $20,000 (such as Poniatowska and Lee v Smith [2007] FMCA 59) involved features of aggravation such as psychological trauma and resulting incapacity for work, which do not feature in the present case.
244 Any assessment of damages in a case such as the present is bound to be a broad one, not involving any particularly scientific approach. The following matters, in particular, must be taken into account in the present case: Mr Tucker's conduct was not accompanied by physical elements of sexual harassment which are a feature of some of the decided cases; it is only Mr Tucker's conduct which is the foundation for an award of damages on the findings I have made; some attempt must be made to discount from Ms Richardson's account of her feelings, and from the assessment made by the medical experts of her condition, matters which are not a response or reaction to Mr Tucker's conduct; and, the psychological damage to Ms Richardson while not insignificant, was not debilitating in that it did not prevent Ms Richardson from working or pursuing her career.
245 At the beginning of the last day of the proceedings counsel for Ms Richardson indicated that, if (but only if) Oracle was found to be vicariously liable for Mr Tucker's conduct, no monetary relief was sought against Mr Tucker. As there was no complaint from either respondent about this late change of position, I am prepared to confine any order for compensation to one against Oracle alone. However, I can see no basis upon which any order against Oracle for compensation by way of damages for Mr Tucker's sexual harassment of Ms Richardson could differ from the quantum of any order which might be made against Mr Tucker himself. The matters which defeated Oracle's defence under s 106 of the SD Act are not ones which would justify any finding of aggravation or provide any reason to inflate any amount that was otherwise proper to order, having regard to the conduct itself.
246 In my view, an appropriate amount to award in such circumstances, having regard to all the matters referred to above, including particularly the medical evidence (evaluated in the light of the findings of fact which I have made where they are contrary to any assumptions made by the experts) is $18,000, which I fix as general damages.
247 If I had been satisfied that Oracle was directly liable to Ms Richardson for its own conduct, I would have awarded a further $4,000 as compensation for that conduct. That compensation would have related to the requirement to remain exposed to Mr Tucker for the period from 17 November 2008 to 10 December 2008 and the consequent psychological effects attributable to Oracle's conduct which were taken into account by the experts. However, on the findings about liability which I have made that is not a course which is open or appropriate.