Ground 20
73 Ground 20 was that the trial judge "erred by awarding manifestly inadequate general damages to Ms Richardson". As already noted, the trial judge awarded Ms Richardson $18,000 by way of general damages as compensation for the non-economic loss she sustained because of Mr Tucker's sexual harassment of her. By ground 20, Ms Richardson challenged this amount, inviting the Court to find relevant error in the trial judge's exercise of discretion in fixing that figure and to fix a higher amount.
74 It must be clear by now that the trial judge accepted that Mr Tucker's unlawful conduct caused Ms Richardson both physical and psychological damage: see Richardson v Oracle (first instance) at [4], [149], [209], [236]. Mr Tucker's conduct occasioned her distress that was manifest in a noticeable change in her demeanour and in significant physical symptoms. His conduct also caused her psychological injury: she suffered a chronic adjustment disorder with mixed features of anxiety and depression: see Richardson v Oracle (first instance) at [236]. This psychological damage was "not insignificant": see Richardson v Oracle (first instance) at [244].
75 In discussing her distress, the trial judge specifically said (at [209]-[213]):
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 …
Even though her decline appears to have been apparent to others, it was not until Ms Richardson was confronted with unmistakeable evidence that she was no longer able to manage the situation on her own or control her responses to Mr Tucker's behaviour that she decided to make a complaint about Mr Tucker's conduct. In that sense I am satisfied that she was driven to take that step.
I am satisfied that Mr Tucker's conduct was cruel and calculated, but he may not have fully appreciated the effect it was having on Ms Richardson. I think it is equally likely that Ms Richardson managed to disguise her reactions sufficiently that Mr Tucker simply settled into a systematic form of humiliation and sexually charged aggression as his normal mode of interacting with her. He should be given no credit for his lack of insight. The maintenance, over an extended period of time, of the conduct which the evidence disclosed in this case deserves censure in a way which makes clear that it was unacceptable and unlawful. It was a clear breach of Ms Richardson's legal rights.
Some of the picture of Ms Richardson's distress is revealed by her counselling journal, which I regard as a sufficiently reliable contemporaneous record for this purpose. …
Ms Richardson's account is sufficiently supported by the evidence of her partner, some friends and her neighbour, Ms O'Toole, who provided her direct observations of changes in Ms Richardson's demeanour corresponding to the time of the events in question.
76 An appellate court ought not interfere with the sum of general damages fixed by a trial judge simply because it considers it would have fixed some other amount: see Smith's Newspapers Ltd v Becker (1932) 47 CLR 279 at 300 (Dixon J); Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 ("Precision Plastics v Demir") at 369 (Gibbs J); Wilson v Peisley (1975) 7 ALR 571 ("Wilson v Peisley") at 585 (Mason J); and Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 ("Rogers v Nationwide News") at 348-349 [62]-[66] (Hayne J). Before this Court can interfere with the award made by the trial judge, the Court must consider either that the judge acted on an error of principle, misapprehended the facts, allowed extraneous matters to affect the assessment, failed to take account of a material consideration, or that "the judge has made a wholly erroneous estimate of the damages suffered": see House v The King (1936) 55 CLR 499 at 504-505 and Precision Plastics v Demir at 369. Ground 20 is directed to this last-mentioned matter. That is, a contention that an award of damages is "manifestly inadequate" "invokes the last of the bases for appellate review of an exercise of discretion identified in House v The King": compare Rogers v Nationwide News at 348 [62].
77 To adapt the language of Hayne J in Rogers v Nationwide News at 348 [62] and [64] (who was speaking of "manifest excess"):
If manifest [inadequacy] is alleged, it is not said that a specific error of principle or fact can be identified. Rather, the contention that damages are manifestly [inadequate] alleges that the result at which the primary judge arrived is evidently wrong and that, although the nature of the error made may not be discoverable, there must have been a failure to properly exercise the discretion in fixing the amount to be awarded.
…
It is important to emphasise, however, that the task of an appellate court asked to set aside an award of damages as manifestly [inadequate] is not simply mathematical. The appellate court does not begin by identifying the damages which it would have allowed and then, applying some margin for difference of view, observe the mathematical relationship between the award made and the figure it would have awarded. Rather, the question for the appellate court is whether the result at which the trial judge arrived bespeaks error. What must be identified is manifest [inadequacy], not just [inadequacy].
(Emphasis in original)
78 Oracle submitted that "[t]he Federal discrimination law cases reveal that the monetary award [made by the trial judge] was well within the permissible range" and that "[m]onetary awards for general damages arising from sexual harassment are ordinarily within the range between $12,000 and $20,000". In this connection, the Court was referred to numerous cases, including Elliot v Nanda (2001) 111 FCR 240 (award of $15,000 as general damages; $5,000 as aggravated damages), Leslie v Graham [2002] FCA 32 (award of $16,000), Kraus v Menzie [2012] FCA 3 (award of $12,000; appeal dismissed in Kraus v Menzie [2012] FCAFC 144). These cases were said to be illustrative of the "permissible range" within which the trial judge set Ms Richardson's general damages award. It was on this basis that, citing Wilson v Peisley at 585, Oracle submitted that "[t]he general damages awarded in this case were not so inordinately low as to be a wholly erroneous estimate of the damage suffered" (emphasis original).
79 Further, Oracle sought to distinguish Ms Richardson's case from the few sexual harassment cases in which damages were awarded outside this range such as Lee v Smith [2007] FMCA 59 ("Lee v Smith") where a general damages award of $100,000 was made and Poniatowska v Hickinbotham [2009] FCA 680 ("Poniatowska v Hickinbotham") where a general damages award of $90,000 was made. The Court's attention was drawn to differences in the nature of the conduct in these two cases and in the nature of the injuries sustained by the victims because of this conduct. Ms Lee was subjected to months of sexual propositioning and other unlawful conduct which culminated in a sexual assault, whilst Ms Poniatowska was subject to sexual propositioning, inappropriate comments by her supervisor and the receipt of explicit pornographic messages on her telephone from a co-worker. Ms Lee was found to have suffered "very significant pain, suffering, hurt and humiliation" over the five or six years before trial, had been deprived of the enjoyment of life, had been unable to work, suffered fear and had been at times suicidal: see Lee v Smith at [215]. At the time of the award, Ms Poniatowska remained incapacitated for work by her psychiatric illness; with years of considerable personal distress and unhappiness caused by her underlying psychiatric condition (an adjustment disorder with mixed anxiety and depression) brought on by the sexual harassment: see Poniatowska v Hickinbotham at [350]-[351]. I accept that in both these cases the victims sustained more severe injuries than Ms Richardson did in this case.
80 Oracle argued the appellant's reliance on the awards of damages in "different areas of the law" including in defamation cases (such as Crampton v Nugawela (1996) 41 NSWLR 176, New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340, Rogers v Nationwide News, John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291, Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059 and McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147) were ill-suited to the question whether the damages awarded in this case, in the Federal discrimination context, were manifestly excessive. As will be seen hereafter, I do not entirely accept this submission.
81 For the reasons set out below, I consider ground 20 to be made out in this case: whether or not the award of damages in the sum of $18,000 is manifestly inadequate is not to be determined here by reference to some previously accepted 'range' in sexual harassment cases. For the reasons stated below, I consider that, having regard to the nature and extent of Ms Richardson's injuries and prevailing community standards, the low level of the damages awarded by the trial judge itself bespeaks error.
82 As Hayne J indicated in Rogers v Nationwide News at 348 [63], cases in which an award of damages is challenged as 'manifestly inadequate' or 'manifestly excessive' assume that there is a standard against which inadequacy or excess can be judged. In the context of an award of damages for defamation, his Honour said (at 349 [66]):
In searching for the standard … account must be taken of three basic propositions. First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award for damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury.
In searching for the standard against which to measure the 'manifest inadequacy' of an award of damages for sexual harassment, the same, or similar, matters must be taken into account. Pain and suffering, hurt and humiliation and, more generally, the deprivation of the enjoyment of life have no market value: pain and suffering and money are "in this sense incommensurable": compare Rogers v Nationwide News at 349 [66]. Comparisons between sexual harassment cases are not straightforward; and since the remedy with which the court is concerned is damages, it is appropriate and necessary to have regard to the damages allowed for other kinds of analogous non-pecuniary injury. As explained hereafter, this latter matter is especially important when considering damages for sexual harassment.
83 It is important to note at the outset that damages for sexual discrimination (which includes sexual harassment), have only been available in federal law for around thirty years. This is a comparatively short period in the history of our law. The early decisions as to general damages to be awarded in sexual harassment cases indicate a degree of uncertainty and difficulty in fixing the appropriate amount. This can be seen in the caution evident in Hall v A & A Sheiban, which substantially adopted the approach in Alexander v Home Office [1988] 1 WLR 968; [1988] 2 All ER 118 ("Alexander v Home Officer") - an English race discrimination case. Thus, in Hall v A & A Sheiban (at 256), in the context of sexual harassment damages, Wilcox J cited with approval the reasoning of May LJ in Alexander v Home Office, who explained at 122:
As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referrable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life.
(Emphasis added)
84 Academic commentators have also remarked on the difficulty initially faced by courts and tribunals in fixing amounts for general damages for sexual harassment and the courts' cautious approach: see, for example, Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, 1990) at 197-198; Carol Andrades in What Price Dignity? Remedies in Australian Anti-Discrimination Law, Parliamentary Research Paper No 13 (1998) ("Parliamentary Research Paper No 13"); and see also State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27 at [102]-[103].
85 The apparent result of this initial uncertainty was that the range of awards for general damages in cases of the present kind was fixed at a conservative level. This phenomenon is the subject of extensive academic analysis: see, for example, Andrades, Parliamentary Research Paper No 13; and Chris Ronalds, "Opening Address III" in Margaret Thornton (ed) Sex Discrimination in Uncertain Times (ANU E Press, 2010) 17 at 21.
86 The perception that awards for general damages in cases of sex discrimination and harassment are generally low has led academic commentators to opine that "the courts have not accorded much weight or significance to the emotional loss and turmoil to an applicant occasioned by acts of unlawful discrimination and harassment": see Chris Ronalds and Elizabeth Raper in Discrimination Law and Practice (Federation Press, 4th ed, 2012) ("Ronalds and Raper") at 216; see also Parliamentary Research Paper No 13; Beth Gaze, "The Sex Discrimination Act After Twenty Years" (2004) 27(3) University of New South Wales Law Journal 914 at 919; and Senate Standing Committee on Legal and Constitutional Affairs, Report on Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (Senate Printing Unit, 2008) at 81-83.
87 Commentators have surmised that the level of damages awards in such cases runs counter to the beneficial intent of the SDA, impeding the deep social reform intent that expressly accompanied its introduction and informs the legislation as a whole: see s 3 of the SDA: see, for example, Beth Gaze, "The Sex Discrimination Act at 25: Reflections on the Past, Present and Future" in Margaret Thornton (ed) Sex Discrimination in Uncertain Times (ANU E Press, 2010) 107 at 121; Beth Gaze, "Damages for Discrimination" (2013) 116 Precedent 20 at 22; Beth Gaze, "Anti-Discrimination Laws in Australia" in Paula Gerber and Melissa Castan (eds) Contemporary Perspectives on Human Rights Law in Australia (Lawbook Co, 2013) 155 at 176-177; Beth Gaze and Rosemary Hunter, Enforcing Human Rights: An Evaluation of the New Regime (Themis Press, 2010) at 165; Helen Watchirs, "Opening Address I" in Margaret Thornton (ed) Sex Discrimination in Uncertain Times (ANU E Press, 2010) 3 at 6. Indeed, one writer surmised that the damages presently awarded in this Court for sex discrimination risked "creating a time capsule", which in most cases fixes the valuing of non-economic loss to an unofficial range set, in effect, 20 to 30 years ago: see further Carol Andrades, "The Struggle to restore dignity - Part 1: remedies in anti-discrimination law" (2012, September) Employment Law Bulletin 85 at 86. Although the academic literature cannot determine the outcome of the Court's deliberation on ground 20, it indicates that the question to which ground 20 gives rise may be a significant one.
88 Leaving the academic literature aside, it may be accepted that there is, at least for some purposes, a "general range" for awards of general damages in sex discrimination or sexual harassment cases. The trial judge himself mentioned such a range, when (at [242]-[243]) he stated that:
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.
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.
89 A review of the decided cases confirms that, broadly speaking, his Honour correctly identified a range of between $12,000 and $20,000 for general damages awards in sex discrimination/sexual harassment cases, other than in cases such as Poniatowska v Hickinbotham and Lee v Smith. This is illustrated by the table of damages awarded under the SDA between 13 April 2000 and 2011 set out in the Australian Human Rights Commission publication, Federal Discrimination Law (AHRC, 2011) at 17-19; 26-28. See also Commonwealth v Evans (2004) 81 ALD 402 at [82] (Branson J); Shiels v James [2000] FMCA 2 at [79]; Elizabeth Raper, "Show me the money: Damages awarded in sexual harassment matters" (2010) 1 Workplace Review 100 at 100; and Ronalds and Raper at 216. In the main, although there have been some exceptional cases such as Poniatowska v Hickinbotham and Lee v Smith, little changed between 2000 and 2011. Little has changed since then. Whilst there may have been some modest increase at the lower end of this range, the upper end has remained the same for well over a decade. I accept, therefore, that, in fixing the sum of $18,000, the trial judge fixed a sum within what has been accepted as the range in cases of the present kind.
90 As foreshadowed earlier, this is not the end of the matter. Indeed, the authorities indicate that it can be dangerous to rely too heavily on such a range in assessing the quantum of damages. This proposition is illustrated by O'Brien v Dunsdon (1965) 39 ALJR 78 ("O'Brien v Dunsdon"). In O'Brien v Dunsdon, the appellant challenged an award of general damages "for pain and suffering and other matters excluding economic loss" as unreasonably low. Noting that "it was suggested that the… assessment of general damages for pain and suffering … have not exceeded" five thousand pounds, the High Court stated (at 78) that "it would be quite wrong to suggest that there is any fixed limit to the amount that can be awarded under this head". Instead, Barwick CJ, Kitto and Taylor JJ stated (at 78) that:
Each case must be considered in the light of its own facts and an assessment made of the amount which can fairly be regarded as reasonable compensation for the injuries and disabilities which a plaintiff has sustained. It is true, as has been observed on other occasions, that it is impossible precisely to translate pain and suffering and the loss of enjoyment of life into money values. But, nevertheless, some attempt must be made to assess a reasonable sum, remembering, whilst attempting to do so, that it is not possible by payment of an amount of compensation to effect a restitutio in integrum and that the assessment should be made having regard, as far as possible, to the general standards prevailing in the community.
(Emphasis added)
91 It is convenient and appropriate to say at this stage of my analysis that I would not accept the appellant's argument that:
It has been observed in the context of the SDA that awards of general damages should not be minimal, because this would tend to trivialise or diminish respect for the public policy of the SDA: Hall (supra) at 356 per Wilcox J, see also 238 per Lockhart J. The primary judge's award of general damages of $18,000 was, with respect, so minimal as to undermine this area of law and the status of human rights in Australia.
92 This argument was elaborated at the hearing of the appeal, but it misses the point. A similar argument was rejected in Clarke v Catholic Education Office (2003) 202 ALR 340 ("Clarke v Catholic Education Office"), in relation to damages under the Disability Discrimination Act 1992 (Cth), where Madgwick J said (at 360 [83]):
It was faintly suggested, on the strength of remarks made in a case decided by the Human Rights and Equal Opportunity Commission, that there were policy reasons why damages for a breach of the DDA should be substantial. It was also faintly suggested that an award should not be so low that it might be eaten up by non-recoverable costs. Both propositions must be rejected. Damages are compensatory and no more.
93 The real issue is whether, having regard to the facts as found, the amount fixed by the trial judge was so disproportionately low when the facts, as found, are considered that the award cannot fairly be seen as reasonable compensation for the loss and damage suffered by the appellant because of Mr Tucker's sexual harassment of her. The terms of s 46PO(4)(d) make this the critical issue. Thus, I focus on the appellant's other contention that the award was so low as not to compensate her for her loss and damage, rather than on the appellant's submissions about diminishing respect for the public policy of the SDA.
94 I also note at this point that I do not understand the comment of French and Jacobson JJ in Qantas Airways Ltd v Gama at [94] that "the discretionary character of the remedy allows an award of an amount 'by way of compensation' which does not fully compensate for the loss suffered" to detract from the fundamentally compensatory nature and object of an award of damages under this provision. Rather, I understand their Honour's comment to refer to the inherently non-scientific and imprecise nature of an assessment of general damages and the need to place a money value on loss and damage that does not have a money value for any purpose other than the assessment of damages. Further, in so far as it is necessary to do so, I refer to my reference to Henville v Walker and I & L Securities Pty Ltd v HTW Valuers at the conclusion of my discussion of ground 19A.
95 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].
96 I begin by observing that, in the context of damages for personal injury, there is reason to believe that community standards now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before. This was the assessment of the Victorian Court of Appeal in Amaca Pty Ltd v King [2011] VSCA 447 ("Amaca Pty Ltd v King"). I refer to this case only to demonstrate the Court's adoption of this proposition in 2011 and its subsequent effect in other cases more closely akin to the present case.
97 In Amaca Pty Ltd v King, the Court of Appeal dismissed an appeal against an award of damages in the sum of $1,150,000 ($730,000 for pain and suffering and loss of enjoyment of life) for the respondent's personal injuries caused by the appellant's negligence. The appellant had negligently caused the respondent to suffer mesothelioma as a result of his exposure to asbestos dust and fibres at the appellant's factory. In the course of their reasons for judgment, Nettle, Ashley and Redlich JJA said (at [177]):
We do not suggest that there is any necessary relationship between earnings and the measure of compensation appropriate for pain and suffering. But inasmuch as contemporary society pays and receives vastly greater amounts of remuneration than that of a generation ago (even allowing for inflation) and, at the same time as it seems to us, writes and speaks of the importance of the quality of life to an extent not before contemplated, who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past?
98 Whilst Amaca Pty Ltd v King is self-evidently a very different case from that which this Court is considering, the point made by their Honours in the above passage - that the community may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than in the past - is, if accepted, no less valid for this appeal than that case. (See also BHP Billiton Ltd v Hamilton & Anor [2013] SASCFC 75 at [324]-[330] where Stanley J, with whom Kourakis CJ agreed, cited Amaca Pty Ltd v King with approval.)
99 The Victorian Court of Appeal has subsequently affirmed that the change in the community's appreciation of the value of the loss of enjoyment of life and compensation for pain and suffering, discussed in Amaca Pty Ltd v King, is relevant in assessing damages in the context of other kinds of personal injury cases. Specifically, I note that, in Willett v Victoria [2013] VSCA 76 ("Willett v Victoria"), Tate and Priest JJA relied on this aspect of Amaca Pty Ltd v King in determining to substitute damages of $250,000 for the jury verdict of $108,000. These damages were awarded to Ms Willet as compensation for her pain and suffering and loss of enjoyment of life caused by the negligence of her employer, Victoria Police, in exposing her to bullying and harassment in her employment.
100 Ms Willett's injuries were serious. At the time of the trial, she was undergoing treatment in a psychiatric hospital following an attempted suicide: Willett v Victoria at [13]. Tate and Priest JJA summarised her condition (at [48]) as follows:
The upshot of Dr Shan's evidence was thus that Willett 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 and which rendered her permanently incapacitated for her pre-injury work as a police officer.
Ms Willett was able to work, although in another occupation: Willett v Victoria at [50]. 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].
101 More recently, in Swan v Monash Law Book Co-operative [2013] VSC 326 ("Swan v Monash Law Book Co-operative"), a trial judge again had occasion to assess damages suffered for pain and suffering caused by the defendant's negligence in exposing the victim, Ms Swan, to an unsafe workplace in which she was subject to bullying, harassing, and intimidating conduct. This conduct caused Ms Swan to suffer a mental 'breakdown': Swan v Monash Law Book Co-operative at [16]. Dixon J found (at [246]) that Ms Swan's injuries were "extremely onerous and deleterious" and continued (at [246]-[248]):
In addition to the primary symptoms of her Adjustment Disorder/Depressive condition, continuing anxiety and depression, that have been described by the medical witnesses, the plaintiff has somatic symptoms including temporomandibular joint dysfunction with bruxism and tinnitus, chronic insomnia, pain, including migraine and headache, anxiety, a disabling sensitivity to antidepressants, high blood pressure, and debilitating rashes and skin irritations that have all required separate diagnosis, and continue to require separate ongoing management and treatment. …
…
I am satisfied that the plaintiff remains substantially compromised in most aspects of her life, which has been reduced to one of isolation and disconnection from her family and friends and from the world around her. The plaintiff has surrendered her personal independence, lost her confidence, and lost her capacity to take interest in and derive pleasure from the stimulus in life. This has been a substantial loss of enjoyment of life, with much pain and suffering, both mental and physical.
His Honour awarded Ms Swan $300,000, as damages for pain and suffering and enjoyment of life. In so doing, his Honour referred (at [261] to [263]) to Willett v Victoria and Amaca Pty Ltd v King, observing (at [261]) that "once liability has been determined, the starting point for the assessment of damages for pain and suffering and loss of enjoyment of life must be that it was common ground that the plaintiff had suffered a serious mental disturbance of which the respondent's conduct was a cause".
102 In referring to Willett v Victoria and Swan v Monash Law Book Co-operative I do not intend to suggest that Ms Richardson's pain and suffering and loss of enjoyment of life were the same as, or comparable to, the injuries sustained by Ms Willett and Ms Swan. Ms Willett's injury was plainly more severe than that of Ms Richardson. So too was that of Ms Swan. I refer to these cases of workplace bullying and harassment mainly to indicate that awards of damages today place a significant value on the loss of enjoyment of life and the experience of pain and suffering.
103 The same general approach to the assessment of damages in Victoria is also evident at a tribunal level. In Tan v Xenos (No 3) [2008] VCAT 584 (2008) EOC 93-491 ("Tan v Xenos (No 3)"), her Honour Judge Harbison, sitting as Vice President of the Victorian Civil and Administrative Tribunal, awarded damages in the sum of $100,000 for sexual harassment in contravention of s 87 of the Equal Opportunity Act 1995 (Vic), even without medical evidence as to the effect of the sexual harassment on the victim, saying at [556]:
In my view, there should not be a perception that awards of damages in this jurisdiction should be set at some lower rate than awards for comparable cases in the Courts. The purpose of the award of damages is to attempt to measure, in monetary terms, the hurt that has been done to the Complainant by the Respondent's act of harassment. My approach should mirror the approach that would be taken if this case were to be heard in a Court, instead of a Tribunal.
104 Indeed, this Court has in the past apparently placed a greater value on the loss of enjoyment of life outside the anti-discrimination legislation field than in it. One example is Nikolich v Goldman Sach JBWere Services Pty Limited [2006] FCA 784 ("Nikolich") (quantum of damages unchallenged on appeal, challenge to liability dismissed: Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120). In 2006, Mr Nikolich recovered damages for breach of his employment contract with an employer in the finance industry, in respect of the loss and damage caused by workplace bullying and harassment. Wilcox J found (at [158]) that Mr Nikolich had "suffered, and perhaps continues to suffer, a major depressive disorder", although his psychological condition would not ultimately prevent him returning to the finance industry. In 2006, when fixing the award of general damages for breach of contract at $80,000, Wilcox J said (at [341]) that:
Mr Nikolich was extremely distressed and disturbed by the way in which he was treated by GSJBWS's employees. This caused him to suffer a mental illness from which he had yet to fully recover. His psychological condition appears to have been a major factor in the break-up of his marriage and separation from his children. It must have adversely affected his professional reputation. On the other hand, as I read the expert evidence, there is no reason to suppose that Mr Nikolich's psychological disability will be permanent. Although it may take him some time to do so, there is every prospect that he eventually will obtain employment and return to normal life.
105 Another case in this Court, also decided in 2006, tends to confirm that, historically at least, damages awards have been at a higher level for loss of enjoyment of life and pain and suffering outside the anti-discrimination legislation field. In Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687 ("Walker v Citigroup"), a Full Court of this Court held that, in an action for damages for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth), the trial judge's award of $5000 for general damages was "a significant under-assessment of the loss" Walker suffered, for "a considerable dislocation of his life with serious long-term effects": Walker v Citigroup at 709 [91]. An award in the amount of $100,000 was substituted for the award of $5000 (at 709 [91]) without reference to psychological or other medical evidence of the distress Mr Walker claimed.
106 At trial, Mr Walker had claimed a general sum of $100,000 in respect of prejudice to his reputation and "not less than $50,000 in respect of his distress and vexation in both his career and personal life": see Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114 ("Walker v Citigroup (first instance)") at 135 [98]. The trial judge accepted 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: Walker v Citigroup (first instance) at 144 [137]. On appeal Mr Walker contended that the award of $5,000 was insufficient "compensation for damage to his reputation and career prospects, to his marriage and for distress and vexation arising out of Citigroup Australia's conduct": see Walker v Citigroup at 691 [11]. The Full Court accepted 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. It is relevant to note that the focus of the Full Court in increasing this amount was not on reputation; and that at the earlier trial, Mr Walker's counsel had submitted that "his business began to flourish from the time the decision on liability was delivered" (i.e., before the trial on quantum of damages): see Walker v Citigroup (first instance) at 135 [98]. Accordingly, I reject Oracle's submission that the Full Court's decision turned on the fact that "Mr Walker's reputation was irreparably harmed such that he was unable to secure employment and his professional reputation was 'now mud'". These were not the "serious long-term effects" to which the Court referred in its reasons for judgment at 709 [91].
107 Oracle also referred to the decision of Mansfield J in Kraus v Menzie [2012] FCA 3, in which his Honour awarded the sum of $12,000 by way of general damages. His Honour explained that he awarded this "small amount" for conduct amounting to sexual harassment because, "although it amounted to a contravention of the SD Act, it barely had any adverse personal effect upon Ms Kraus" (at [138]). In view of his Honour's finding as to the lack of loss and damage, this case does little to support Oracle's submissions.
108 In each of the cases to which I have referred, damages have been awarded by way of compensation for pain and suffering and loss of enjoyment of life. Non-pecuniary damages in sexual harassment cases are also commonly awarded by way of compensation for injury of this kind. Whilst the loss and damage suffered by victims of sexual harassment and workplace bullying will in a sense be unique to each victim, I am unable to discern any in-principle difference between the compensable value of the pain and suffering and loss of enjoyment of life suffered by a victim of sexual harassment (in this case, in the workplace) and of a victim of (workplace) bullying and harassment lacking a sexual element. I note that in both types of case the victim may suffer psychological injuries and distress of a comparable kind. Ms Richardson's psychological injury and distress bears some of the hallmarks of the injuries suffered by the claimants in the cases to which I have referred. The same may be said regarding the nature of the psychological injuries and distress considered in Nikolich and Walker v Citigroup.
109 Even this cursory overview of the quantum of awards historically awarded 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. Such disparity bespeaks the fact that today an award for sexual harassment, though within the accepted range for such cases, may be manifestly inadequate as compensation for the damage suffered by the victim, judged by reference to prevailing community standards.
110 Others have recognised that the circumstances of personal injury caused by unlawful discrimination bears some comparison with a person's mental distress following an unlawful termination of employment, negligence or related breaching or unlawful conduct. As Basten JA observed in the context of a negligence claim for psychiatric injury caused by an employee's humiliation and harassment by his supervisor (in Nationwide News Pty Ltd v Naidu & Anor (2007) 71 NSWLR 471 at 525 [378]):
[S]ome of the conduct complained of involved racially abusive epithets of a kind which could readily give rise to a racially hostile working environment. Like cases of sexual harassment, racial harassment of that kind would be unlawful under the Anti-Discrimination Act 1977 (NSW) …
See also Tim Donaghey, Termination of Employment (Lexis Nexis Butterworths, 2nd ed, 2013) at 201 and Carolyn Sappideen et al, Macken's Law of Employment (Lawbook Co, 7th ed, 2011) at 192, fn 337. In Qantas Airways Ltd v Gama, French and Jacobson JJ held (at [96]) that reference to a negligence case in an attempt to "find some basis for an assessment of damages…did not err in principle". The need for coherence in the law means that, in attempting to compensate victims for comparable kinds of injuries, interconnected fields of law look to one another in establishing a "reasonable" sum by way of compensation. The analogy between sums awarded for pain and suffering and loss of enjoyment of life caused by unlawful discrimination with sums awarded in the tortious context is particularly obvious.
111 The appellant urged us to make a similar comparison with the level of general damages awarded in cases of defamation. It was unclear, however, exactly what the Court was to take from the amount of compensation awarded for non-economic loss in the defamation context. On the one hand, the appellant relied on awards in defamation cases to make the point I have already considered: namely, that in this field (like others) awards for general damages have increased and today are significantly different from that typically awarded under the SDA. On the other hand, they were relied on as representing what the courts considered in the defamation context to be fair compensation for pain and suffering which resembled that experienced by Ms Richardson in this case. Thus, at one point, Ms Richardson's counsel, Ms Francois, explained that:
I guess my point is not some nicety about, 'Should it be 300 or 400,000?' The reference to defamation awards is to determine whether or not something is excessive or inadequate.
Nonetheless, when the Court asked Ms Francois how it should "put a figure on pain and suffering", the following exchange occurred:
MS FRANCOIS: We say that the 2008 decision in Poniatowska which is in my submissions in reply, is, for the reasons set out in my submissions, closely to be on all fours, but obviously that's four years ago - five years ago now, and the value of money changes over time to the point of increasing it. So we would say it ought be an award greater than that case, where the trial judge - so the primary judge accepted that she had an adjustment disorder with mixed features and anxiety and depression. And …
BESANKO J: That's a bit difficult, isn't it, just picking one case out and saying, "Well, that's all we've got so we should rely on that".
MS FRANCOIS: No. I would like to say that's the minimum, you Honour.
BESANKO J: Yes.
MS FRANCOIS: That's the low mark. I think you should go much higher.
KENNY J: But you say to us, "Well, we can bear in mind general salary levels, increase in … the value of the costs of money" …
MS FRANCOIS: Value of the costs of money, value of defamation judgment[s]… and then, of course, the purpose and scope - nature and scope of the Act. So, is it an award of damages that furthers those purposes?
112 I do not consider that direct comparison with the quantum of damages awards for defamation provides useful guidance as to the disproportionate insufficiency of the award of damages in this case. For one thing, an award of damages for defamation serves three purposes: consolation for the personal distress and hurt caused to the victim by the publication, reparation for the harm done to his or her personal and (if relevant) business reputation, and vindication of his or her reputation: see Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 ("Carson") at 60-61 (Mason CJ, Deane, Dawson and Gaudron JJ). In the present context, this Court is concerned with an award of general damages as compensation for Ms Richardson's loss and damage, which is in the main referable to her pain and suffering and loss of enjoyment of life.
113 As already indicated, I accept that there are, of course, structural or normative considerations to be borne in mind. Considerations of this kind are relevant to an appellate court's judgment that an award of damages in a particular case was disproportionately high or disproportionately low. Thus, in Carson, Mason CJ, Deane, Dawson and Gaudron JJ found no error in Kirby P's approach making a qualified comparison with verdicts in serious personal injury cases in considering whether a defamation award was manifestly excessive. In so doing, their Honours rejected an argument that the Court's earlier decision in Coyne v Citizen Finance Ltd (1991) 172 CLR 211 prevented "an appellate court, deliberating on the quantum of a defamation verdict, from considering verdicts in personal injury cases for the purpose of comparison", although this did "not deny that the harm suffered in defamation cases differs from the 'tearing of flesh and bone and the pain of body' suffered in personal injuries cases nor that 'precise comparisons' should not be drawn between the different types of cases": see Carson at 57-58 (citations omitted; emphasis in original).
114 In a similar context, Chernov JA, with whom Ormiston and Callaway JJA agreed, acknowledged that normative or structural considerations were relevant in Crellin v Kent [2000] VSCA 165 at [22], when, referring to Carson, he said:
[I]t seems to have been accepted that, in considering if an award of damages for non-economic loss is manifestly excessive, it may be appropriate to have regard to awards of damages in a relevant category of cases for the purpose of determining if they establish a range of damages appropriate to a particular class of injury with which the award in question may be rationally compared. Thus, for example, in Carson v John Fairfax & Sons Ltd the majority said, in effect, that, in determining whether an award of damages for defamation is manifestly excessive, it is legitimate to consider the kind of figures which have been held to be proper in cases of disabling physical injuries. … In my view, however, the injury sustained by the plaintiffs in the two cases referred to by the respondent do not constitute a relevant class of injuries for comparison purposes and are otherwise not a useful indicator of what might be an appropriate award of damages in this case.
In earlier discussion, I have had regard to the awards of damages in other interconnected categories of cases, with which, in my view, the award in Ms Richardson's case may be rationally compared. As I have already stated, such a comparison demonstrates that the award for general damages in this case was disproportionately low and failed adequately to compensate Ms Richardson for the loss and damage she suffered because of Mr Tucker's conduct.
115 I have not overlooked that the quantum of awards of damages in other jurisdictions (including from State to State) and in other fields of law vary, sometimes significantly, including for pain and suffering and loss of enjoyment of life. This is apparently a peculiarity of the Australian federal system. If it matters, it seems that damages awards in New South Wales and Victoria for pain and suffering and loss of enjoyment of life caused by workplace bullying and harassment are on a par. I note too that some Australian jurisdictions have placed statutory restrictions upon recovery for non-economic loss in particular kinds of cases. I consider that these cases do not provide sufficient helpful guidance to warrant further discussion here. The AHRC Act imposes no statutory restriction on the quantum of damages awards for sexual harassment. Rather, the power conferred on the court by s 46PO(4)(d) to award damages is broad, limited only by need for such damages to be by way of compensation for the loss and damage suffered by victim because of the unlawful conduct.
116 As I noted, in Tan v Xenos (No 3) the Victorian tribunal awarded the victim of sexual harassment $100,000. I have also referred to the following court awards: in Willett v Victoria the victim received $250,000; in Swan v Monash Law Book Co-operative the victim received $300,000; in Nikolich the victim received $80,000; and in Walker v Citigroup the victim received $100,000. Bearing in mind the nature of the injuries in each case, their severity and when the relevant awards were made, these cases give some guidance as to the level of damages that, having regard to the general standards prevailing in the community, would compensate Ms Richardson for the loss and damage of the kind she suffered because of Mr Tucker's conduct.
117 Putting aside comparisons with general damages in negligence, including in connection with workplace bullying and harassment, and in other actions, it is clear that continued adherence in sex discrimination cases, including sexual harassment cases, to a 'range' of damages awards that has not absorbed the increases evident in awards in other fields of litigation has resulted in an award in Ms Richardson's case that, judged by prevailing community standards, is disproportionately low having regard to the loss and damage she suffered. As noted earlier, the general range of general damages in respect of pain and suffering and loss of enjoyment of life caused by sex discrimination has scarcely altered since 2000 and does not reflect the shift in the community's estimation of the value to be placed on these matters. The range has remained unchanged, notwithstanding that the community has generally gained a deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience and the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct. Indeed the range has remained fixed despite changing views of what might be "sums which are generally felt to be excessive": Hall v A & A Sheiban at 256. In that case, in addition to cautioning against such excessive sums, Wilcox J (at 256) implored that while:
… damages for… injury to feelings, distress, humiliation and the effect on the claimant's relationships with other people are not susceptible of mathematical calculation … [t]o ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit injustice upon a complainant by failing to grant relief in respect of a proved item of damage.
118 I agree. While the sum of $18,000 was not out of step with past awards in cases of this kind, this amount was nonetheless manifestly inadequate. It was out of step with the general standards prevailing in the community regarding the monetary value of the loss and damage of the kind Ms Richardson sustained. In my view the appeal should succeed on this ground and an award of $100,000 general damages should be substituted for the award of $18,000. The amount of $100,000 includes compensation for the injury that the sexual harassment caused to Ms Richardson's sexual relationship with her then partner, Mr Dunphy.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.