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Calculating compensation for general protections breach; Part 3

Compensation for general protections contraventions Part 3; how to calculate compensation for non-economic loss
Non-economic loss
“I first deal with the Respondents’ argument that the Applicant has failed to prove her case, because of the lack of medical evidence to support her argument that she suffered anxiety, distress, insomnia, panic attacks, loss of self-esteem and suicidal ideation. It is not necessary that there be before the Court expert medical evidence for a Court to find that an Applicant has suffered distress, anxiety or other symptoms as a consequence of contraventions engaged in by a Respondent: see Oracle at [105] referring to the decision of the Court in Walker v Citigroup.
In this case the Applicant gave unchallenged sworn evidence in the trial and in the proceedings, regarding the psychological impact of the contraventions; which included both the conduct of the Second Respondent and her dismissal. She gave evidence of the medication she was prescribed by her Psychiatrist.
The question I must determine is whether the Applicant’s psychological symptoms were caused by the contraventions in question. This question is complicated by the fact that, on the Applicant’s own evidence, she was already suffering psychological symptoms and taking medication, because of the sexual harassment she alleges the former owner of the business engaged in prior to the contraventions.
In Oracle, Kenny J said this about cases in which there may be multiple factors contributing to psychological injury (at [69] to [70]):
o Further, quite apart from the appellant’s suggested application of Hall v A & A Sheiban, there is likely error in an approach which concludes without further analysis that the presence of multiple factors giving rise to a specific form of loss or damage will bar a victim of sexual harassment from recouping compensation for the part which the contravening conduct played in that loss. That discriminatory conduct which contributed (but was not the sole contributor) to the onset of injury is a loss “suffered because of the conduct of the respondent” was accepted without question by French and Jacobson JJ in Qantas Airways Ltd v Gama at [99] in the course of applying s 46PO of the AHRC Act. Such an acceptance reflects the remedial nature of s 46PO(4)(d). In reflecting on s 82(1) of the Trade Practices Act 1974 (Cth), which was in its terms relevantly indistinguishable from s 46PO(4)(d), Hayne J explained in Henville v Walker at 509 [163] :
 [S]eldom, if ever, will contravening conduct be the sole cause of a person suffering loss. Other factors will always be capable of identification as a cause of their loss … What the Act directs attention to is whether the contravening conduct was a cause. It does not require, or permit, the attribution of some qualification such as “solely” or “principally” to the word “by”.

(Emphasis in original)
o (See also Henville v Walker at 482-483 [68]-[72] (Gaudron J).)
o In I & L Securities Pty Ltd v HTW Valuers at 130 [62] Gaudron, Gummow and Hayne JJ elaborated that:
 As was recognised in Henville v Walker there may be cases where it will be possible to say that some of the damage suffered by a person following the contravention of the Act was not caused by the contravention. But because the relevant question is whether the contravention was a cause of (in the sense of materially contributed to) the loss, cases in which it will be necessary and appropriate to divide up the loss that has been suffered and attribute parts of the loss to particular causative events are likely to be rare. Further it is only in a case where it is found that the alleged contravention did not materially contribute to some part of the loss claimed that it will be useful to speak of what caused that separate part of the loss as being “independent” of the contravention.

(Emphasis in original)
In this case, the Applicant was suffering anxiety, distress and taking prescribed medications before the contraventions. Her unchallenged evidence is that she was managing, nevertheless, to work until she was dismissed. I am satisfied that the conduct of the Second Respondent in terminating her employment in contravention of the Act, both prolonged and exacerbated these symptoms, with the consequence she suffers, in addition, panic attacks, loss of self-esteem and experiences moments of suicidal ideation.
I am satisfied that an award of compensation for this loss in the amount of $10,000.00 is neither derisory nor excessive and I will so Order.

Collison v Brighton Road Enterprises Pty Ltd T/A The Grosvenor Hotel & Anor (No.2) (2016) FCCA 1798 per Jones J

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