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Rare award of general damages for general protections’ case

In a reasonably rare award of damages for non-economic loss by the Federal Circuit Court in a general protections’ case, an applicant has been awarded $15,000 for general damages.

The case is more interesting that persuasive or authoritative, because the defendant was in liquidation and in a sense the case was not defended, but one can glean some principles from it nonetheless.

Here is an edited extract from the decision which deals with the issue.

“The task of assessing general damages, in the context of the FWA, is a difficult one, given that the facts and circumstances of each case and the applicant concerned are necessarily idiosyncratic.  In Ewin v Vergara (No3)[16]Bromberg J said as follows:

“The assessment of general damages in compensation for pain and suffering, for loss of amenity or enjoyment of life and other intangibles, is not a science and by its nature is not readily capable of arithmetic calculation.  … The award of compensation should be neither restrained nor excessive.  Each case will be determined by its own particular facts. …”

[16]  See Ewin v Vergara (No3) [2013] FCA 1311 at [658]

A compensatory order for distress, hurt and humiliation is available under s.545 of the Act only if the applicant concerned has in fact suffered distress, hurt and humiliation, as a result of the contravention.[17]  On the basis of the evidence of the applicant himself and his psychologist, Mr McCurdy, I am satisfied that the applicant has suffered distress, hurt and humiliation as a consequence of his unlawful termination by Ms Cagney.

[17]  See Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 per Barker J

In particular, I accept that he felt demeaned when he was retrenched as a consequence of submitting a valid medical certificate to his employer, as he was entitled to do.

I also find that Mr Hoskin’s distress was not of a transitory nature, which quickly subsided following the incident in question.  ………………………….. Ultimately, I accept that no amount of money is likely to compensate Mr Hoskin for the emotional dislocation, which he has suffered as a consequence of his termination.  My responsibility is to calculate what I consider to be a fair and reasonable compensation, for Mr Hoskin’s suffering, in all the circumstances.  I assess such sum to be $15,000.00.’

Hoskin v Tone Block Pty Ltd & Anor (2017) FCCA 2897 delivered 28 November 2017 per Brown J

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