A Full Bench of the Federal Court of Australia has dramatically increased the compensation for the non-economic loss component of damages awarded to a female employee who was the victim of sexual harassment at work over a 6 month period and in doing so has re-written the Court’s view of the condemnation which it considers the public has for this conduct and its effect upon victims.
The Full Bench increased the award of damages for non-economic loss from $18,000 to $100,000. The judgments of the court make very interesting reading and are a powerful insight into the way some judges approach the task of analyzing the inter-play between society’s values and awards of damages.
Justice Kenny’s judgment, for example pointed to the fact that academic commentators had remarked on the courts’ cautious approach to calculating general damages in sexual harassment cases, resulting in awards “at a conservative level”.
Her Honour wrote that this ran counter to the beneficial intent of the Sex Discrimination Act, “impeding the deep social reform intent that expressly accompanied its introduction and informs the legislation as a whole”.
“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,” the judge said.
She said that although the academic literature could not determine the issue, it indicated that the question might be significant.
“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,” the judge said.
“I note that in both types of case the victim may suffer psychological injuries and distress of a comparable kind.”
Richardson v Oracle Corp (2014) FCAFC 82 delivered on 15 July 29014