The Full Federal Court took a strong stance in a sexual harassment case last month, increasing the damages awarded in the initial judgment from $18,000 to $130,000. In Richardson v Oracle Corporation Australia Pty Ltd  FCAFC 82, the Full Federal Court found that the intial compensation was “manifestly inadequate”, and did not reflect the community’s changed understanding of the impact of sexual harassment on its victims.
In her decision, Justice Kenny pointed specifically to the Victorian decision of Amaca Pty Ltd v King  VSCA 447, which argued 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.”
As previously reported on TimeBase, the case was brought by former Oracle employee Rebecca Richardson against Randoll Tucker and Oracle Corporation Australia Pty Ltd (who was found to be vicariously liable for Mr Tucker’s actions). The trial judge found that:
“from the time of her first face to face meeting with Mr Tucker in April 2008, she was subjected to a humiliating series of slurs, alternating with sexual advances, from Mr Tucker which built into a more or less constant barrage of sexual harassment.” [at 13, of the original judgment].”
“Mr Tucker did not give honest evidence about these matters. His position shifted over time, according to whether there was independent verification of Ms Richardson’s allegations, or he thought that there might be.” [at 128, original judgment]
However, the original judgment did not accept some of Ms Richardson’s claims, including a claim for economic loss resulting from her resigning from Oracle and taking a different job. In their joint judgment Besanko and Perram JJ (whose reasoning for these grounds was agreed with by Kenny J in her separate judgment), reversed the initial finding and found that there was a causal link between the unlawful conduct of Mr Tucker and Ms Richardson’s decision to leave her job. They highlighted the fact that Ms Richardson began considering her future employment at the time the conduct was occurring and that Ms Richardson’s subjective motivation (she believed Oracle was “trying to push her out”) was relevant even though it may not necessarily have been Oracle’s objective intention. They awarded Ms Richardson the $30,000 as damages for economic loss that the trial judge determined that he would have ordered had the claim been upheld.
The remaining $100,000 in damages came from an increase in the “general damages” award. Oracle had argued that the $18,000 originally awarded to Ms Richardson was within what they believed to be the ordinary range from $12,000 to $20,000. They cited a number of sexual harassment cases that resulted in damages from within this range. Justice Kenny, however, rejected the argument that the award should have been determined by reference to “some previously accepted ‘range’” [at 82]. She also cited a number of academic works which were critical of the relatively low amounts awarded to victims of sexual harassment, noting at  that:
“Commentators have surmised that the level of damages awards in such cases runs counter to the beneficial intent of the SDA [the Sex Discrimination Act 1984 (Cth)], impeding the deep social reform intent that expressly accompanied its introduction and informs the legislation as a whole.”
She concluded that:
"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." [at 117]
Justitia reports that:
“The case is not concluded, as the increased award now has cost implications for Oracle in light of the offers of compromise exchanged prior to the case going to trial. These matters will be dealt with by way of further submissions and hearings.”
Nevertheless, the case clearly demonstrates that the Federal Court is prepared to place a significantly higher value on compensation stemming from non-economic loss than it may have in the past.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Richardson v Oracle Corporation Australia Pty Ltd  FCAFC 82 (15 July 2014)
Richardson v Oracle Corporation Australia Pty Limited  FCA 102 (20 February 2013)
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