NSW District Court Awards Sexual Harassment Victim Over $700,000 In Damages
Monday 10 November 2014 @ 11.50 a.m. | Torts, Damages & Civil Liability
The District Court of NSW has awarded a sexual harassment victim $733,233 in damages after finding that she had been subject to harassing, bullying and intimidating conduct by her employer, and that the company was negligent in failing to take reasonable care to avoid exposing her to risk of psychological injury. In Trolan v WD Gelle Insurance and Finance Brokers Pty Ltd [2014] NSWDC 185, the plaintiff, Ms Trolan, alleged she was subject to systematic sexual harassment and bullying by her employer, Mr Gelle, who was the “mind, will and embodiment of the defendant company” [at 2].
The large award in the case is another example of a court awarding a significant sum following a case a sexual harassment leading to psychological industry. Earlier this year, TimeBase reported on Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, where the Full Federal Court increased damages awarded in the initial judgment form $18,000 to $130,000.
Evidence
Mr Gelle had denied Ms Trolan’s allegations in their entirety, and the case largely revolved around whether the conduct complained of had occurred. Both parties called witnesses and the platiniff also relied on a “tendency notice”, which consisted of a list of Mr Gelle’s previous convictions for acts of public indecency. The Court noted that these convictions “did not involve Mr Gelle touching other persons, whereas his behaviour towards the plaintiff, in the main, did”, but said that “both involved sexualised behaviour on the part of Mr Gelle. It was that element of commonality which made the evidence relevant…” [at 208-209].
Mr Gelle’s wife also worked at the company, and part of Ms Trolan’s evidence involved having complained to her about the behaviour of Mr Gelle. The Court found “[t]he plaintiff gave consistent and repeated evidence that she had complained to Mrs Gelle about Mr Gelle's behaviour” [at 39]. While Mr Gelle’s counsel had originally stated that Mrs Gelle would be called as a witness, Mrs Gelle was overseas travelling during the hearing date and did not give evidence.
The Court ultimately concluded that Mr Gelle was “an unsatisfactory and unconvincing witness on all matters in contention between the parties” [at 61] and accepted Ms Trolan’s account. His Honour also rejected arguments that Ms Trolan had not taken “all reasonable steps” to mitigate her loss under section 151L of the Workers Compensation Act 1987 (NSW). In particular, he noted:
“Whilst it may be argued that initially, the employer had no reasonable cause to suspect that the plaintiff may be vulnerable to developing a psychological illness as a result of Mr Gelle's behaviour, that could not reasonably be the case after September 2008, when the employer knew that the plaintiff went on sick leave for psychological reasons as a result of Mr Gelle's unwanted attentions.
At that time, a reasonable employer in the position of the defendant, knowing there had been no physical injury in the plaintiff resulting in the need to take sick leave, nevertheless ought to have realised that the plaintiff was vulnerable to developing a psychological illness if the conduct continued” at [221 – 222].
Damages
The plaintiff successfully claimed damages for loss of past income ($285,000), past loss of superannuation ($31,350), future economic loss due to loss of earning capacity ($353,812), future loss of superannuation ($49,710) and tax paid on her weekly workers’ compensation payments following Fox v Wood [1981] HCA 41 ($13,851), as well as costs.
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Sources:
Trolan v WD Gelle Insurance and Finance Brokers Pty Ltd [2014] NSWDC 185
