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Australian damages
This page highlights awards of damages in some Australian
litigation about bullying.
It covers -
introduction
It has been said that money talks, or simply talks more
loudly and persuasively, than suffering unattached to
a price tag.
Damages awarded by Australian courts regarding bullying
have attracted attention for several reasons.
The first is the 'culture of spectacle', 'gawking'
or anxieties about being 'over-lawyered', with the mass
media (and some professionals) seizing opportunities to
build a headline or an opinion piece about -
- the
wickedness of contemporary youth (an ahistorical vision),
sometimes linked with jeremiads about the need for greater
regulation of television
and computer games,
the pernicious effects of cyber-addiction
or the prevalence of 'happy slapping'
- the
need to cap payouts in workers compensation schemes
or in injury awards
- the
indulgence of judges to "fictive" offences
such as bullying, dismissed by one pundit as a "nebulous,
catch-all concept".
Another
reason is that the prospect of paying substantial damages
(or paying substantial penalties as a director, manager
or corporation) is likely to seize the attention of organisations
and executives. The preceding pages have suggested that
there are grounds for scepticism about the commitment
of particular organisations to changing work practices
to prevent bullying but coverage in the mass/professional
media of damages claims may encourage some organisations
to be more 'bully conscious'.
A third reason is that differing awards demonstrate the
significance of statutory caps on payments under workers
compensation schemes.
A final reason is that awards offer insights into how
Australian courts conceptualise and value injury.
understanding awards
Awards of damages may directly address a target's injury
and costs, with the expectation that the target will be
compensated.
That compensation may include -
- general
damages (compensation for physical injury, ongoing psychological
injury, pain and suffering)
- economic
loss (compensation for loss of past earnings or future
earning capacity, potentially over a lifetime and thus
a very large figure)
-
legal costs
-
medical and hospital costs.
Awards
may also have a punitive component, with the offender
(in many instances an employer that was held to be negligent
in preventing an employee or employees from bullying another
employee or student) being punished through an additional
sum that signals the community's disappoval.
Awards are independent of fines, ie financial penalties
that are received by the state rather than by the target.
Insights are offered in Des Butler's Damages for Psychiatric
Injury (Leichhardt: Federation Press 2004).
figures
The
following figures are not comprehensive and do not illustrate
particular trends.
It should be noted that legal costs (solicitors, barristers,
expert witnesses, document filing fees) may be considerable
and that some targets who went to court will have been
left out of pocket.
Some awards have been crimped, with the Queensland Court
of Appeal setting aside the initial award of $549,000
in Arnold v Midwest Radio on basis that that
plaintiff had not satisfied the court that the defendant
had breached the duty of care to avoid psychological injury
and that the injury was reasonably foreseeable.
Some relativities are provided by figures for defamation
damages, discussed here
and here.
-
Horne & McIntosh v Press Clough Joint Venture
- 1994 WA Equal Opportunity Commission - sexual harassment
claim under Equal Opportunities Act (WA) involving elements
of bullying - $92,000
-
McKenna v Victoria Police - 1998 Victorian
Anti Discrimination Tribunal - sexual harassment claim
under Equal Opportunities Act (Vic) involving
bullying - $125,000 in general damages (hurt feelings,
distress and psychological illness)
- Arnold
v Midwest Radio Pty Limited - 1999 Qld Equal Opportunity
Commission - $549,000 under Workplace Health &
Safety Act (Qld) for bullying behaviour resulting
in psychological injury
- Blenner-Hasset
v Murray Goulburn Co-operative Pty Limited & Ors
- 1999 County Court Victoria - common law claim for
bullying - $350,000
- McKenna
v State of Victoria [1999] VSC 310 - Supreme Court
upholds 1998 ADT decision - $120,000
- Serratore
v Doyles Construction Lawyers - 2001 Queensland
Industrial Relations Commission - application for reinstatement
under Industrial Relations Act (Qld) - $10,000 awarded
for hurt, humiliation and distress
- Emonson
v Trustees of the Christian Bros - 2001 - Victoria
County Court - $60,000
- Hellsing
v British Aerospace Ltd - 2001 - ACT Supreme Court
- $342,989
-
Naidu v Group 4 Securitas Pty Ltd & Anor
[2005] NSWSC 618 - $2 million
- Nikolich
v Goldman Sachs JBWere Services [2006] - breach
of contract - $500,000
-
Webb v State of Queensland [2006] QADT 8 (23
March 2006) - Anti-Discrimination Act 1991
(Qld) - $14,665
- Cox
v State of New South Wales [2007] NSWSC 471 - NSW
Supreme Court - $220,000 for pain and suffering
- Bailey
v Peakhurst Bowling & Recreation Club Ltd [2009]
NSWDC 284
- $507,550, including $334,305 for future loss of earning
overseas benchmarks
Some overseas payments make Australian damages awards
look derisory.
In 2007 for example a UK High Court judge awarded Deutsche
Bank secretary Helen Green some £800,000 after persistent
bullying in the "department from hell".
Green said that she had been driven to the point of a
mental breakdown while working in the bank's secretarial
division between 1997 and 2001, claiming psychiatric injury
attributable to
offensive,
abusive, intimidating, denigrating, bullying, humiliating,
patronising, infantile and insulting words and behaviour
by four female colleagues, including administrator Daniella
Dolbear.
Mr Justice Owen held that the "deliberate and concerted
campaign of bullying within the ordinary meaning of that
term" was a long-standing problem that had not been
addressed by the bank's management, which was "weak
and ineffectual".
He awarded Green £35,000 for pain and suffering,
£25,000 regarding disadvantage in the labour market,
£128,000 for past loss of earnings and some £640,000
for future loss of earnings including pension. The bank
was also ordered to pay her legal costs.
In Blenner-Hasset, noted earlier, the award included
$15,290 past psychotherapy costs and $17,000 travelling
costs, $65,000 loss of wages, $29,400 future medical expenses,
$75,000 loss of earning capacity and $150,000 in general
damages, damages for pain, suffering and the loss of enjoyment
of life.
$150,000 over 20 or 30 years might seem paltry compared
to the initial award of some $350,000 to Andrew Ettinghausen
or the $277,000 awarded to the Costello & Abbott families
over Bob Ellis' Goodbye Jerusalem. Courts struggle
to quantify pain and incapacity.
In Naidu v Group 4 Securitas the award of damages
that appear to exceed $2 million (split between News Ltd
and Group 4), included
lost salary of $70,000 a year until the age of 65, $200,000
general damages, $150,000 exemplary damages against News
and $115,000 previously paid by the NSW WorkCover Authority
(which presumably clawed back that sum from News and Group
4).
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