Trainor v South Pacific Resort Hotels Pty Ltd - [2004] FMCA 374

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRAINOR v SOUTH PACIFIC RESORT HOTELS PTY LTD

[2004] FMCA 374

HUMAN RIGHTS – Sex discrimination – vicarious liability of employer – sexual harassment in the workplace – sexual harassment on premises but outside of work – unwelcome sexual advance – effect of harassment upon complainant’s mental health – post traumatic stress disorder – predisposition to psychiatric injury – whether actions complained of constitute sexual harassment within the meaning of s.28A of Sex Discrimination Act.

CONSTITUTIONAL LAW – Application of Sex Discrimination Act 1984 to Norfolk Island – Company incorporated on Norfolk Island – express provisions of Norfolk Island Act (1979) – what constitutes a foreign corporation.

EVIDENCE – Whether corroboration necessary of alleged incidents of harassment – relevance of representations to third party as “fresh complaint” – use of psychiatric evidence of “retrospective falsification” – consideration of effect upon person of “normal fortitude”.

The Commonwealth Constitution, ss.51, 122

Sex Discrimination Act 1984, ss.5, 9(1)(2)(3)(4)(11)(12)(13)(14), 14(2)(d), 28A(1)(2), 28B(2), 106(1), 106(2)
Human Rights and Equal Opportunity Commission Act 1986, ss.46 PO(3),
46 PO(4)(d), 46 PO(4)(b)
Norfolk Island Act 1979, ss.18(1), 18(2)

Berwick Ltd v Gray (1976) 133 CLR 603
Newbery v The Queen (1965) 7 F.L.R. 34
Waters v Public Transport Corporation (1991) 173 CLR 349
Tame v New South Wales (2002) 76 ALJR 1348
Annetts v Australian Station Pty Ltd (2002) 76 ALJR 1348

Applicant:

DANETTE TRAINOR

Respondent:

SOUTH PACIFIC RESORT HOTELS PTY LTD

File No:

BZ348 of 2001

Delivered on:

8 July 2004

Delivered at:

Cairns

Hearing dates:

9 & 10 July 2003

Judgment of:

Coker FM

REPRESENTATION

Counsel for the Applicant:

Mr Morzone

Solicitors for the Applicant:

Wettenhall Silva Solicitors

Counsel for the Respondent:

Mr Garling S.C.

Solicitors for the Respondent:

McIntyres Lawyers

ORDERS

The Court declares that the Respondent is vicariously liable for the unlawful sexual harassment of the Applicant contrary to section 28B(2), section 28A and section 106(1) of the Sex Discrimination Act 1984.
The Court Orders that the Respondent pay to the Applicant damages including interest thereon in the sum of $17,536.80.
The Respondent pay the Applicant’s costs of the proceedings to be calculated pursuant to Part 21 Rule 21.02(2)(b) and schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNVILLE

BZ348 of 2001

DANETTE TRAINOR

Applicant

And

SOUTH PACIFIC RESORT HOTELS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

This application is brought by Danette Trainor against her former employer, South Pacific Resort Hotels Pty Ltd, pursuant to section 46PO(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) seeking relief in respect of acts of sex discrimination and sexual harassment which she alleges breached the Sex Discrimination Act 1984 (Cth) hereinafter referred to as “SDA” and in particular sections 5, 14(2)(d), 28A, 28B(2) and 106(1).
This application has been complicated somewhat, as a result of a preliminary argument that arose in relation to the applicability of the SDA to the respondent, in the operation of its business on Norfolk Island.
It is contended on the part of the respondent that the SDA does not apply to the respondent because:
(1)Norfolk Island is an external Territory of the Commonwealth.
(2)The respondent is a company operating on Norfolk Island and incorporated on Norfolk Island.
(3)The conduct occurred on Norfolk Island
It is argued that section 18 of the Norfolk Island Act (1979) is particularly relevant. It provides as follows:
(1)an Act or a provision of an Act (whether passed before or after the date of commencement of this section) is not, except as otherwise provided by that Act or by any other Act, in force as such in the Territory, unless expressed to extend to the Territory.
(2)An enactment shall not be made so as to affect the application of its own force in, or in relation to, the Territory of an Act or a provision of an Act.
What is submitted therefore, is that unless the SDA of its own nature expresses that it extends to the Territory of Norfolk Island, then that it is not applicable, because Norfolk Island is not specifically mentioned in the legislation.
Section 9 of the SDA is headed “Application of Act”. Subsection 1 provides in this section:
Australia includes the external Territories.
Prescribed Provisions of Division 3 of Part II means the provisions of Division 3 of Part II other than section 28D and 28L
Prescribed Provisions of Part II means the provisions of Divisions 1 and 2 of part II other than sections 19, 26 and 27
Subsections (2), (3) and (4) of section 9 of SDA are also relied upon in relation to the respondent’s contention that the Act does not apply to Norfolk Island. They provide as follows:
(2)Subject to this section this Act applies throughout Australia.
(3)This Act has effect in relation to Acts done within a Territory.
(4)The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect as provided by subsection (3) of this section and the following provisions of this section and not otherwise.
It is argued therefore, that the proper interpretation of section 9 means that it is only applicable in those specific instances and not otherwise. What is submitted on the part of the respondent is that section 9 of the SDA, insofar as it relates to the application of the Act, is all encompassing.
In that regard there is need obviously to consider subsections (11) through (14) of section 9 of the SDA. Those four subsections provide as follows:
(11)The prescribed provisions of Part II have effect in relation to discrimination by a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth, or by a person in the course of the person’s duties or purported duties as an officer employee of such a corporation.
(12)The prescribed provisions of Division 3 of Part II have effect in relation to acts done, by a person who is an officer or employee of a foreign corporation, or of a trading or financial corporation formed within the limits of the Commonwealth, in connection wit the person’s duties as such an officer or employee.
(13)Without prejudice to the effect of subsection (11), the prescribed provisions of Part II have effect in relation to discrimination by a trading or financial corporation formed within the limits of the Commonwealth, ort by a person in the course of the person’s duties purported duties as an officer or employee of such a corporation, to the extent that the discrimination takes place in the course of the trading activities of the trading corporation or the financial activities of the financial corporation, as the case may be.
(14)Without prejudice to the effect of subsection (12), the prescribed provisions of Division 3 of Part II have effect in relation to acts done, by a person who is an officer or employee of a trading or financial corporation formed within the limits of the Commonwealth, in connection with any of the person’s duties as such an officer or employee that relate to the trading activities of the trading corporation or the financial activities of the financial corporation, as the case may be.
Sections 9(11) through (14) relate to the enforceability of the Act in relation to both foreign corporations or a trading or financial corporation. The argument is whether in fact the respondent is therefore, a foreign corporation or a trading or financial corporation. It was agreed between the parties, that the applicant did not rely upon any suggestion of the respondent company, being a trading or financial corporation. Rather, argument was put, on the basis that the applicant’s contention was that, if necessary to be found, the respondent was a foreign corporation.
The respondent argues that this is simply not the case. Foreign, by definition, at least in this context, suggests a sovereign state or nation, outside of the Commonwealth of Australia. Upon that definition, the respondent is not a foreign corporation as it is not established pursuant to the laws of a sovereign state or nation outside of the Commonwealth of Australia, nor does it operate pursuant to the law of another nation.
The Norfolk Island Act (1979) sets up the structure of self-government upon Norfolk Island. It includes a power to legislate in relation to corporations. The Act itself comes into existence pursuant to section 122, of the Constitution. The structure of self-government, it is therefore contended, falls outside the provisions of section 51 of the Constitution as it establishes self government by a different means and it is argued it places it outside the ambit of the SDA. It is further argued, that whilst that is the case, it is not a foreign corporation and therefore again falls outside the ambit of the SDA.
The argument that is put forward on behalf of the respondent in relation to jurisdiction is interesting. It relates to a question of the applicability of the Act to an entity established on Norfolk Island and operating within the confines of Norfolk Island.
For Ms Trainor, it is argued simply, that section 9 of the SDA sets up clear distinctions or explanations of where the Act is to apply. Subsection (1) includes the external Territories by definition and it is argued that this in reinforced specifically by the definitions included within subsections (2) and (3). I have been referred by Counsel to, Berwick Ltd v Gray (1976) 133 CLR 603, specifically as to a determination of whether Norfolk Island is a Territory. That case before the High Court related specifically to the provisions of the Income Tax Assessment Act and whether the Court of Petty Sessions had jurisdiction to hear and determine the proceedings, relating to collection of Tax. The main judgement was that of Mason J and His Honour in particular discussed the power conferred by section 122 of the Constitution. At page 607 he said:
“ the short and compelling answer to this argument is that the power conferred by Section 122 to make laws for the government of a Territory is a plenary power and that all that need be shown to support an exercise of the power is that there should be a sufficient nexus or connection between the law and the Territory. Such a nexus or connection is to be found in the circumstance that the law regulates the imposition of income tax or incomes derived by residents of the Territory. There is no limitation inherent in the power of which inhibits its exercise by requiring that monies there-by raised should be paid into a Territory treasury or consolidated revenue account or that the monies there-by raised should be expended exclusively on Territory purposes. The imposition of taxation is a matter distinct from the payment of revenue into consolidated revenue account and the withdrawal of the monies there-from for government purposes.”
A little later in his reasons, Mason J again commenting in relation to section 122 makes the following comment:
“ The power conferred by Section 122 is a plenary power capable of exercise in relation to Territories of varying size and importance which are at different stages of political and economic development. It is sufficiently wide to enable the passing of laws providing for the direct administration of a Territory by the Australian Government without separate territorial administrative institutions or a separate fiscus; yet on the other hand it is wide enough to enable parliament to endow a Territory with separate political representative and administrative institutions, having control of its own fiscus.”
Justice Mason also dealt in Berwick Ltd v Gray (Supra) with the issue of whether the external Territories form part the Commonwealth of Australia and that, if so, in consequence the parliament may make laws in relation to regulation of the external Territories. Mason J comments about the history of and the historical documents relating to Norfolk Island and finds:
“without questioning the correctness of the conclusion reached by His Honour, [Eggleston J in, Newbery –v- The Queen(1965) 7F.L.R.34], I consider that the history and the historical documents also support the conclusion that Norfolk Island forms part of the Commonwealth of Australia”
That decision of the High Court, is in my view, determinative of the matter itself. Norfolk Island is part of the Commonwealth. The application of the SDA as set out is section 9 includes the external Territories. To argue otherwise would be contrary, in my view, to both the intention of the Parliament and, more particularly, contrary to the proper interpretation of an Act which would include as one of its purposes, the good government of Norfolk Island.
The application relating to jurisdiction or applicability of the SDA, pursuant to the provisions of section 9, as well as Division 3 and Part II, must fail.
It was further contended in relation to the jurisdiction argument that section 106 falls within Part VI of the SDA and that, therefore, it falls outside the operation and applicability of section 9.
Part VI of the SDA is headed MISCELLANEOUS and provides in section 106 as follows:
Vicarious liability etc.
106. (1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent :
(a)an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b)an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection 1 does not apply in relation to an act of a kind referred to in subparagraph 1(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of a kind referred to in that paragraph.
It is argued by the respondent that section 106 is a separate head of liability and does not fall within the application of the SDA, set out in section 9. I must say that I do not agree with that contention. The nexus arises as a result of section 106 and relates to vicarious liability for the actions of an employee. Pursuant to the provisions of Part II there is a prohibition on discrimination if that discrimination is unlawful. That is the nexus clearly, between section 106 and Part II of the Act.
Having found that the SDA is applicable in its operation, to Norfolk Island, consideration must be given to the alleged breaches of the Act. Section 28B(2) which is in the following terms prohibits sexual harassment in the workplace.
28B(2) “ it is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer”
The meaning of sexual harassment is set out in section 28A of the Act it is in the following terms:
28A (1) For the purposes of this Division, a person sexually harasses another person (the “person harassed”) if:
(a)the person makes an unwelcomed sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
Ms Trainor complains of two separate and distinct instances, of what would be an unwelcome sexual advance. Section 28A would appear to have two limbs. Common to both is a requirement for what is generally referred to, as the “reasonable person test”. Ms Trainor outlined in both her statement of evidence and her oral evidence the circumstances, which she says, evidenced a course of conduct which satisfied the first limb, being an unwelcome sexual advance or an unwelcome request for sexual favours.
The first of two incidents complained of by Ms Trainor occurred at about 3.00am on 22 July 2000. Ms Trainor, in her evidence says that she awoke at that time, when a fellow employee, Paul Anderson, opened the door to her room and entered without invitation, apparently with the intention he said of “just wanting to talk” Ms Trainor says, she was immediately uncomfortable having Anderson in her room but engaged him in conversation, in an attempt to have him leave the room. She details in her affidavit of the 3 September 2002 what she recalls of the conversation between she and Anderson and in particular the conversation and conduct which she considered both undesirable and offensive. She says in paragraphs 13 to 19 of her affidavit the following:
(13)Mr Anderson sat on my bed talking about his day. He then said he had visions that I slept naked. I felt very fortunate that at the time I was sleeping in tracksuit pants, jumper and socks. I am sue that he could tell I had clothes on as my jumper was long sleeved and, whilst I sat up and kept the sheets pulled around me, he should have been able to see the top section of my jumper and its sleeves.
(14)Mr Anderson then said I was “sexy”, that I was “too skinny” and that he had told the guys I had a “nice ass”. He was clearly implying that he wanted to become intimate with me there and then so I told him words to the effect, “I’m not that sort of girl” and “I don’t just sleep with people”.
(15)He then asked if he could just have a “friendly hug” and he also made the comment that “no-one would know or find out”.
(16)I told Mr Anderson “No” and that I still had feelings for my ex-boyfriend back in Australia. He said he was someone different and it would be different with him. He was trying to kiss me when he said this to me.
(17)I pushed Mr Anderson away and told him “No, I don’t want you to”. I then asked him to leave.
(18)It took Mr Anderson a while to leave as he kept asking me if I was “sure”, and I said “Yes, I’m sure”. He finally left at about 3.45am.
(19)I felt very distressed and upset by what had happened and had great difficulty getting back to sleep. I felt like I wanted to leave the Hotel because of what had happened.
Ms Trainor was not cross-examined at length, in relation to her recollection, of the first incident. It was submitted for the respondent however that the only evidence of the first incident, is that given by Ms Trainor and that the evidence is, uncorroborated. That is contested on the part of Ms Trainor, as Counsel for the applicant says, there is corroboration in the evidence in Christopher Sawyer, who gave evidence that he recalled receiving a telephone call from Ms Trainor and that, over the telephone, she sounded very upset and distressed about an incident that she described to him, involving a staff member entering her room.
It is submitted on the part of the respondent that a self-serving statement does not amount to, corroboration. In this instance, however, it appears clear, that the call made to Mr Sawyer, was made very soon after the actual incident. The applicant says that the telephone call, is in the nature of “fresh complaint evidence”. It is submitted that the telephone discussions with Mr Sawyer should be seen in that light.
Contrary to that however, it is argued strongly on the part of the respondent, that there is no substantial corroboration that arises and in fact, there are some objective indicia which raise a doubt as to whether the event occurred, or certainly the extent of the event. These objective indicia, it is said, include:
·It was not witnessed by anybody, although it took place in the staff quarters, at a time when others would presumably be in attendance.
·The applicant did not report to anybody on Norfolk Island nor make mention of it to any other person, other than apparently, Mr Sawyer.
·There were people with whom the applicant had commenced a formal relationship and to whom she could have turned, if she had wanted to make a complaint.
·The applicant was able to commence work at seven in the morning, only some three and a quarter hours after, she says, the incident had concluded and was able to continue to perform properly at that shift.
·She was able to work on rostered work periods subsequently, during the week following the incident

There is obviously a concern that arises in relation to evidence of an uncorroborated nature. It is the duty of the Court to assess the evidence and to give it the weight, warranted, in all the circumstances. I must say however that I found Ms Trainor an honest and forthright witness, though prone to some exaggeration. I will comment a little further in that particular respect, when dealing with the evidence of the psychiatrist, Dr Trott.
The second incident is described, in the statement of evidence of Ms Trainor. It occurred on the evening of 28 July 2000 and is detailed in paragraphs 26 through 40. Any words the subject of agreed or sustained objection, have been deleted:
(26)On Friday, 28 July 2000 a second incident occurred involving Mr Anderson. I attended drinks with other staff and management in the Manager’s office after I finished work at about 6.00pm. The drinks were being held because a staff member was leaving. Mr Anderson did not arrive until the drinks were breaking up and staff were leaving to go elsewhere.
(27)I went with a group of other staff members to the main bar. Whilst I was there Darren (the sous chef) warned me to be careful of Mr Anderson…….
(28)I felt particularly concerned after speaking to Darren as I had had three or four drinks, I know Mr Anderson was quite drunk (based on my observation of him) and I did not feel safe from him, especially as my room was directly across from his room.
(29)As I was feeling fearful and upset, I decided to go and try to call my ex-boyfriend Chris Sawyer in Australia. Unfortunately, I did not have a phone card and I could not reverse the charges as there was no operator available at that time of night.
(30)I then went to see Darren to ask if he had a phone card I could use. Darren was just about to tell me what Mr Anderson had been saying about me when we ran in to Mr Anderson in the staff quarters looking for me. I asked Darren to stay with him while I made the phone call.
(31)I rang Mr Sawyer and asked him to call me back. I rang him because I was upset and afraid Mr Anderson might try something as he was very drunk,…..cause of his behaviour the previous night and that night when I saw him. Mr Sawyer know about the previous incident because I was very upset about what had happened and I needed to talk to someone about it. Consequently, I had called him previously to discuss what had happened.
(32)Mr Sawyer rang me back at the staff quarters and I took the call in the restaurant supervisor’s room as she was on night phones and had agreed to my taking the call in her room as she said it would be “more private”…..
(33)While I was on the phone to Mr Sawyer, Mr Anderson was walking up the hallway looking for me. I know this because I could hear him walking up the hallway and he was calling my name…..
(34)I know that he even went into the women’s shower room because I heard him banging on the door and I heard Jo telling him to “get out”…..
(35)…..
(36)By the time I had finished my phone call with Mr Sawyer, I simply wanted to go to sleep. I had been crying over the phone and was feeling scared and emotionally drained. My fear and anxiety had escalated during the phone call because of the actions of Mr Anderson despite Mr Sawyer’s efforts to calm me down.
(37)When I entered my room I immediately saw that Mr Anderson was lying in my bed and I believe he was lying under the bed covers but I am not certain of this as I had not bothered to switch the light on when I entered the room. I had simply intended going straight to bed because of how tired and emotionally drained I felt. I believe he was asleep as I did not hear him say anything.
(38)I was extremely scared, upset and disconcerted by his presence in my bed. I ran out of the room and ran over to Darren’s room. Ms Grossley was already there, sitting on the floor crying and talking to Darren about what had happened to her. I than begged Darren to get Mr Anderson out of my room.
(39)Management and supervisors were called and I was put into another room for the night.
(40)The Police were called and Mr Anderson was taken away. I spoke briefly to a male Police Officer and he asked me what had happened. I told him briefly what had occurred but I was extremely upset and he could obviously see this so he asked me to come and see him again later that day.
The second incident, if it were necessary for there to be other evidence has a considerable degree of corroboration about it. There is the uncontested evidence of the Police Officer, Constable Rath, relating to the report of Anderson, entering the room of another female staff member, Catherine Grossley and having been rebuffed by Grossley followed by his departure from Ms Grossley’s room and arrival at Ms Trainor’s room. There is corroboration also, if it can be described as such, in the actions taken by management of the hotel, following the second incident.
Anderson was dismissed. In cross-examination, Mr Sanders, the Manager Director and Secretary of South Pacific Resort Hotels Pty Ltd, indicated that Anderson had been sacked, because of his actions on that particular evening and the reason for that was that his actions were not acceptable. When cross-examined, particularly as to what evidence there was that arose in that regard, Mr Sanders confirmed that the evidence was what he had been told and that that, accorded generally with the statements made by Steven Herbert, the hotel’s assistant manager at the time and Gail Smith, another employee, who took Ms Trainor into her care, following the second incident.
Mr Sanders gave me the impression of being a busy manager, of a large enterprise, employing a considerable number of people. I gained the impression that he would conduct himself in an exemplary and proper manner at all times and expected similar professionalism, from his employees. He commented, for example, that on the occasion of the second incident, drinks were being had at the administration offices, but he said that they were not in his office, but in his father’s office, which was next door. More particularly, he indicated that he had not gone to the main bar afterwards and I think, that probably reflected his attitude in relation to the need for there to be a separation between management and staff.
His professionalism and obvious desire to protect the hotel and its reputation, gave rise however, to a concern I had in relation to certain of his evidence. In particular, his evidence about the dismissal of Anderson, clearly indicated that Anderson’s behaviour was not acceptable, but he did not accept that part of his reason for dismissal was because of a breach of the employment rules, in relation to working for the hotel. He was asked generally, whether he had any hesitation in dismissing Anderson and he replied that he did not. He was then asked whether this was because of his belief, that he could control employee’s actions inside and outside the work arena and Mr Sanders denied that that was the case. The fact was however, that he had dismissed Anderson, in relation to actions, which certainly occurred on hotel property, but which also occurred between adults, outside of the work environment.
It was difficult to understand therefore, how Mr Sanders could suggest that he did not have a control, or at least an interest in the behaviour of his employees and yet at the same time, would immediately dismiss Anderson for what he termed, inappropriate behaviour. That control was evidenced also, in the staff handbook which was distributed to staff and included references, to fraternising, both on and off the hotel property.
I was troubled also by Mr Sander’s evidence, in relation to the accommodation provided by the hotel for staff, at the facility known as “staffies”. Ms Trainor had given evidence that her door, could not be locked. Mr Sanders indicated that that was not the case and that he had, after the second incident, inspected the lock and found it to still be in working order. He indicated however, that keys were not given to staff, unless they requested them. This would certainly seem to be an unusual approach in relation to securing property, but what was even more troubling, was the fact that Mr Sanders shortly after inspection, removed the knob from the door, even though he said it was fully functional. More particularly, he indicated that it had been taken because he, “thought it might be useful”, but then did not have it with him.
The case that is before this Court at the moment, includes an issue of responsibility of the employer for the actions of Anderson, as an employee and more particularly, what proper steps were taken in relation to the protection of staff. To have thought that the knob might be useful, when that issue was so clearly to the forefront, in relation to this action, but then not to have brought the knob to the Court or to have produced it at any time, defies explanation.
I was not at all convinced as to the truthfulness of those statements made by Mr Sanders.
Christopher Charles Sawyer was called by telephone. He had previously been in a relationship with Ms Trainor and was the person called by her, following what is described as, the first incident. Mr Sawyer’s evidence was telling, in respect of his description of Ms Trainor and the changes, that he noted, between when she had left for Norfolk Island and when she returned but also, I thought, was an accurate detailing of the discussions that he had with Ms Trainor.
He was cross-examined at length in relation to times of day when calls were made, responsibility for the calls and the general terms of the discussions that were had. I thought the answers were considered and honest. In particular, I accept his evidence with regard to the telephone calls from Ms Trainor, relating to her concerns in respect of the behaviours and actions of Anderson.
I have recounted already, the descriptions by Ms Trainor of the first and second incidents. There are obviously difficulties, that arise in relation to assessing that evidence, for two reasons. The first relates to the suggestion by Dr Trott that the applicant may “retrospectively falsify” evidence and the second is, of course, that the other “significant” player, in the matter, the employee Anderson, was not available to give evidence, nor in fact, was he called.
Ms Trainor was challenged in relation to her evidence. I thought however, that she dealt with vigorous cross-examination, in an open and frank way. I thought she was an honest witness, though I was troubled, not so much by the honesty of the evidence given, but rather the description as to the difficulties experienced by her, as a result of the incidents. That may be related more to her psychiatric conditions however, rather than to any decision on her part, to act in a dishonest manner. Insofar as her recounting of discussions with Mr Sanders and other hotel staff and with the investigating Police Officer are concerned, I accept her version of events and more particularly, accept her evidence in relation to the incidents on 22 and 28 July 2000.

Medical and Police evidence

Detective Senior Constable Darren Rath, gave a statement of evidence and annexed to that statement documents, including a Norfolk Island Police statement headed, “Statement in the matter of Paul Anderson (born 27.01.68)” as well as a charge sheet, dated 29 July 2000 and an incident report, dated 29 July 2000. Detective Senior Constable Rath was not required for cross-examination. His statement recounts his involvement, following a complaint made at about 2.20am on 29 July 2000.
Detective Senior Constable Rath describes Ms Trainor as appearing, “extremely distraught and had obviously been crying”. He describes Anderson, as being “obviously intoxicated, disoriented and somewhat angry.” He notes that Anderson was lying fully clothed, on the top of the double bed. There is no suggestion that the bed was not in the room, of Ms Trainor.
Detective Senior Constable Rath facilitated the removal of Anderson from the resort and placed him upon a recognisance to maintain the peace and not to return to the South Pacific Resort Hotel, unless accompanied by a Police Officer. Detective Senior Constable Rath also noted, that whilst disorientated and obviously drunk Anderson had expressed a desire, to apologise to both Ms Trainor and to Ms Grossley.
I accept the Detective Senior Constable’s evidence in relation to this matter.
The medical evidence produced by the applicant, consisted of a report by Dr Paul Trott, consultant psychiatrist, of Cairns, dated 26 March 2002.
Dr Trott provided a detailed medico legal assessment of Ms Trainor and his opinion included, in the diagnosis section, the following comment :
“it is my clinical opinion that Ms Trainor has a “disorder of self”. She has an array of narcissistic and obsessional/aviodant defences (projection idealisation and devaluation denial rationalisation and intellectualisation).
Although she denied any previous psychiatric history prior to her alleged sexual assault in July 2000, it is my opinion that she may have repressed or denied any previous emotional difficulties that seemed likely to have occurred, as a consequence of various significant past psycho social events.
It is my clinical opinion that Ms Trainor has had long standing chronic effective instability, on a background of low self worth, as well as sensitivity to criticism and rejection.”
Dr Trott was asked about his report and generally, of his assessments, in relation to Ms Trainor. He was asked specifically about how her work environment and circumstances may now and into the future, effect her capacity. Dr Trott described this as an area of concern and in particular, noted what would appear to be her heightened sensibility to other employees or customers. He talked of there being misperception by Ms Trainor and therefore anxiety or depressive situations, arising for her. He said that her reaction may be that she “would just shut down” and a little later in his evidence said that in a similar vein she may, “just remain in her own comfort zone, her home”
Following that explanation Dr Trott was asked about what his assessment might be of Ms Trainor’s future employability. He responded, that he thought it was more than likely, that she would have difficulties with relationships with both employers and employees and, that a real possibility may be, that she would simply disengage or not seek employment. Dr Trott was asked about this in cross-examination also and spoke of issues with respect to, whether Ms Trainor could be considered or described, as a person of normal fortitude. He indicated, that she could not be properly described, in that manner.
This assessment in relation to Ms Trainor is significant, because of the effect that she says the incidents at Norfolk Island have had upon her, as opposed to her circumstances before the incidents. In his reports, Dr Trott touches upon many of the factors, which he says contributed to Ms Trainor’s previous and present psychological difficulties. He indicated, for example, that he assessed her as having an underlying biological vulnerability. He assessed that she also has, a significant psychological vulnerability, relating to her developmental history and that she has features of, a “disordered self”, with an array of obsessional, avoidant dependant and borderline traits.
Most significantly however Dr Trott indicated that the Norfolk Island incidents during the year 2000 had some significant effect. He said:
“it is my clinical impression that this condition originally resulted in an adjustment disorder with mixed anxiety and depressed mood (post trauma stress response and a depressive reaction). Over time, Ms Trainor’s adjustment disorder with mixed anxiety and depressed mood evolved into that of a more chronic depressive illness (dysthymic disorder). It is likely that various other psychosocial stresses have contributed to an perpetuated the chronic depressive illness.
It is possible that Ms Trainor, due to mechanism of “retrospective falsification” (as well as a tendency to repress or deny any premorbid emotional difficulties, prior to the Norfolk Island incidents) has now focussed upon her ordeal upon Norfolk Island as being solely responsible for her present various emotional difficulties”
In his report, in the section headed “treatment rehabilitation” and the prognosis, Dr Trott recommends that Ms Trainor should recommence her antidepressant somatic therapy, using the SSRI antidepressant, parixetine. He also recommends, that she would benefit from psychological therapy, including, the support of psychotherapy, to help her in her psychosocial readjustment. Dr Trott also indicates, that this and other treatment, would enable Ms Trainor to participate in activities of daily living and to improve her social and interpersonal functioning.
Finally, Dr Trott found that Ms Trainor’s condition, is not stable and stationary, as her illness has only been partially treated. He indicates that his assessment would be that her prognosis remains, fair to moderate.

Findings

I have commented already about the evidence given and in particular, the statements by Ms Trainor and Mr Sanders. I would think that both, as I have said, are honest witnesses, with their evidence however, coloured, by the position that each of them now finds themselves in, before the Court. Mr Sanders was not present at all, during the first incident and only peripherally involved, following the complaint, in relation to the second incident. His actions and reactions particularly in relation to the second incident however, are telling.
There are clear indications of the inappropriateness of behaviour by Anderson and of the reaction by all involved, to those behaviours. The two incidents were sexual advances or requests for sexual favours or conduct of a sexual nature. More particularly they were unwelcome. Anderson on each occasion, was in Ms Trainor’s room. His attendance there was not invited or solicited by the applicant. They were unwelcome acts and were clearly conduct of either a sexual nature or a sexual advance.
On the second occasion, Anderson was on Ms Trainor’s bed. He was uninvited and he had been loud and aggressive. It was submitted that there was an inescapable inference, arising from the circumstances, that his presence had a sexual purpose, directed toward the applicant and that it was therefore, conduct of a sexual nature in relation to her. No other inference can properly been drawn in relation to either of the incidents.
There is also a requirement to consider whether a reasonable person, having regard to the circumstances, would have anticipated that the person harassed, would have been offended, humiliated or intimidated, by the actions. The circumstances that are described by Ms Trainor in her affidavit and which, to a very significant degree, are uncontested, could not lead to any other finding than that a reasonable person would have anticipated that the applicant, would have been offended, humiliated or intimidated. The intoxication element is a “red herring”. The fact is, that the actions themselves are inappropriate and unwelcome. Ms Trainor had actively avoided and had, as it was submitted, rebuffed Anderson’s advances, on the occasion of the conversation, during the first incident.
Anderson himself, whilst suggesting that he had no real recollection of the incidents, accepted that his conduct was inappropriate and that a reasonable person would have anticipated, that the applicant, or any other person, would have been offended, humiliated or intimidated by such actions. There can be no other explanation given for the making of the apology by Anderson, directed towards Ms Trainor or Ms Grossley. Quite clearly the elements setting out what is sexual harassment in section 28A of the SDA have been met.

There is no need to address at length or at all, the issue in relation to Ms Trainor and Anderson being employees of South Pacific Resort Hotels Pty Ltd. That was not argued and seems quite clearly, to have been accepted by all.
Insofar as the findings are concerned, the most difficult aspect of the matter, other than of course the question of vicarious liability, relates to the evidence of Dr Trott and how it should be utilised, in the determination of this matter. Clearly, the incidents have effected Ms Trainor, but there is a concern that arises in relation to how her pre-existing circumstances and predisposition, generally effected the way in which she reacted, to the incidents. There is also, of course, the assessment by Dr Trott of, Ms Trainor, displaying mechanisms of “retrospective falsification”, which effect particularly, the weight to be given to evidence in respect of her future development.
There are indications, as Dr Trott noted, of escapist behaviours on behalf of Ms Trainor, which were exhibited well prior to the these incidents on Norfolk Island and, whilst perhaps exacerbating certain behaviours, were not by any means, the root cause of them. What I do accept however, is that the incidents on Norfolk Island effected the applicants employability, immediately thereafter and I further accept, that she will need, in the shorter term, some medical assistance and therapy.

Vicarious Liability

The applicant’s claim against South Pacific Resort Hotels Pty Ltd, relies upon the vicarious liability provision in section 106(1) of the SDA, which provides as follows:
106.(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a)an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of the Part II); or
(b)an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1) (a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
Counsel for Ms Trainor says section 106 applies with respect to both the incidents and that the respondent is vicariously liable for the acts of harassment or discrimination, committed by Anderson. It is submitted that the actions were committed by Anderson, in connection with his employment, for a number of reasons. These are said to include, the fact that they were committed against a fellow employee, who Anderson had met and had contact with solely, as a result of his employment. It is contended that, because the incidents occurred in a staff accommodation area, it formed part of the Hotel complex and that, even if that were not the case that the connection between the employment and the residential area “staffies” was so great, that even if it were outside the work place, it was still sufficiently connected to include responsibility for the employee, Anderson.
It was also submitted, that the employee handbook showed a direct connection, between “staffies” and the workplace. The handbook it was argued, particularly emphasised the control which the respondent exercised over its employees, whilst on the property of the respondent. This included a provision for instant dismissal if a circumstance of use or possession of illegal drugs on Hotel property occurred and also was evidenced in dress standards, which were required whilst off duty, but clearly on Hotel property.
On the part of the respondent however, it was argued that for the Hotel to be liable for the conduct of Anderson, the conduct had to carried out in connection with the employment, of the employee. It was submitted and strongly argued, that such a finding could not be made in these circumstances because of the hour at which each of the incidents was alleged to have occurred and the fact, that neither Ms Trainor or Anderson were on duty at the time. It is significant, it was argued, that it occurred entirely in the domestic quarters for staff, at a place where work was not performed.
It was also argued, by Counsel for the respondent, that there needed to be a clear nexus between the conduct and employment, before the employer could be held liable and further, that the fact that the respondent provided staff accommodation, did not give rise to any duty on the part of the respondent. Actually taking up the accommodation, was an option open to Ms Trainor. It was submitted, that there were other places that she could have lived and in fact, many of the staff employed by the Hotel, did not live in the staff quarters. It is argued therefore, that the location of the incidents, is not determinative of the connection to employment.
To some extent, I must say that there is strength in the argument put by the respondent, however, there are factors which in the end, lead me to the view that the respondent is vicariously liable, in this situation. The first of those, simply relates to the control that is referred to, as arising from the requirements in the employee handbook. It is obvious from the evidence, that staff behaviour on the respondents property, was a key part of the employment relationship and more particularly, that the failure to comply with those requirements, led to the instant dismissal of Anderson.
I am satisfied, that in all the circumstances, the two incidents complained of, were acts of sexual harassment and that they were committed by Anderson, in connection with his employment, such that section 106(1) of the SDA applies, to the respondent.
I am comforted in this finding, particularly when consideration is given to the comments made by members of the High Court, in the interpretation of Human Rights legislation in Waters v Public Transport Corporation (1991) 173 CLR 349 where Justice’s Dawson and Toohey said
“given that the legislation should receive a generous construction”
and by Justice Brennan where his Honour said
“antidiscrimination legislation should be liberally construed”.
There clearly should be an expansive rather than a narrow interpretation taken in relation to Human Rights legislation.
Section 106 however provides in subsection (2) that “subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent to prevent the employee or agent from doing acts of a kind referred to in that paragraph”.
Counsel for the respondent argues, that in this particular circumstance, it is a practical impossibility, for an employer to comply with subsection (2) and to have taken any steps, which may have prevented harassment. In particular, counsel for the respondent submits, on a rhetorical basis, that an employer could not have been expected to deal with a heavily intoxicated man after midnight, on a Saturday evening.
What is clear, is that significant control was sought to be exercised by respondent over its employees, but what is not so clear, is whether in the fact, the references in the employee handbook, to sexual harassment of guests or other staff members, was included in the handbook at the time of these incidents.
I am satisfied, on all the information that is available, that the respondent cannot properly deny that it had control, or should have had control over Anderson, whilst he resided in their accommodation premises and under their rules. More particularly, there was an obligation to provide safe and secure accommodation, if they undertook to do so, as they did with “staffies” and the lack of an ability to lock the room occupied by Ms Trainor, gave rise to some responsibility in respect of the incidents which came about, as a result of Anderson entering into the room of the applicant.
In the circumstances I find that there was a direct connection between the actions of Anderson and with his employment and more particularly, that all reasonable steps had not been taken, to prevent Anderson from doing the acts of sexual harassment.

Relief

Having found that the applicant has substantiated her claim and that the respondent should be ordered to pay her compensatory damages pursuant to section 46PO(4)(d) Human Rights and Equal Opportunity Commission Act 1986 (“ the HREOC Act”), consideration needs to be given as to what damages should be made by way of compensation for any loss or damage, suffered by reason of the conduct of Anderson. As I have already indicated, I have found pursuant to section 106 of the SDA that the respondent is responsible for the acts of Anderson and that therefore authorises an order being made, against the respondent.
The applicant claims damages made up as follows:
1.General damages $30,000.00
2.Medical treatment $1,907.50, being on going monthly sessions for a minimum of six months at a rate of $136.25
3.Past loss of income $16,565.40
4.Past economic loss $13,000.00
5.Future loss of income $20,000.00
6.Interest-unspecified total of $81,472.90
It is submitted on the part of the applicant, that section 46 PO(4)(d) of the HREOC Act, includes injury to the applicant’s feelings and the pain, suffering , hurt and humiliation that she has endured. It is further contended, that any damages awarded should reflect loss of the benefits of quiet employment, including the right to employment conditions which are free from physical intrusion, harassment and unwelcomed approaches.
Argument arose in relation to this point, as to the proper basis for damages, if any, to be assessed. It was argued for Ms Trainor that the Court must have regard to the reaction of the applicant, before the Court and not the reaction of the “ordinary person”, or the majority of women. It was submitted, that the perpetrator, or of course the respondent in this case, being vicariously liable for the actions of the perpetrator, must take his victim, as he finds her. It is argued for the applicant that there should be accord therefore with the “eggshell skull rule”.
For the respondent however it was argued that if this principle is to be applied, the problem to be considered, is that the rule referred to, is only applicable to the assessment of physical injury and consequential conditions. It is argued that it does not apply to mental distress, psychiatric injury and nervous shock, all of which are significant in relation to the determination of this matter.
In that regard, the respondent argued that in cases of psychiatric injury the principles to be applied include, as a minimum that the events must be such as would have effected a person of “normal fortitude”. In particular, I was referred to the decisions of the High Court in Tame v New South Wales (2002) 76 ALJR 1348 and Annetts v Australian Stations Pty Ltd (2002) 76 ALJR 1348.
It was contended for the respondent, that the “normal fortitude” threshold means that damages are not available, unless the incident would have had a like effect upon a person of that kind. I must say that it is not clear to me exactly what that submission might mean. In the head note to Tame v New South Wales (Supra) and Annetts v Australian Stations Pty Ltd (Supra) it is noted as follows:
“(By majority) “normal fortitude” of a plaintiff is not a precondition to liability. A plaintiff whose personal idiosincrites suggest they deviate from the nominal “normal fortitude” is not precluded from bringing an action in nervous shock. The notional standard of normal fortitude is the application of a hypothetical standard that assists the assessment of reasonable forseeability of harm, not an independent precondition or bar to recovery. The statement that a plaintiff “cannot recover for “pure” psychiatric damage unless a person of “normal fortitude” would suffer psychiatric damage by the negligent act or omission” should not be accepted.
That statement of the view of the majority, includes the views of Gleeson CJ, Gaudron, Gummow and Kirby J J. It is clear from the statements of the judges of the Court, that there are disperate views as to the position to be taken, in respect of psychiatric harm, but what is obvious, is that the High Court has not adopted the forseeability of harm to a person of “normal fortitude” as the operative test in Australian Law.
In any event, there is no need or requirement to consider issues in relation to “normal fortitude” or, as was submitted, even “reasonableness” of the person harassed. The SDA imposes an objective test, from the viewpoint of “a reasonable person”, looking at all the circumstances, as to whether they would anticipate that the person harassed, would be offended, humiliated or intimidated. It is the case, that simply one of the circumstances to be considered, is the applicants state of health be it physical or psychiatric and their susceptibility or vulnerability, to offence, humiliation or intimidation. It is a question that needs to be considered, in light of the applicant’s own state of mind and the effect had upon the applicant, by the actions of Anderson.
In relation to that effect, Counsel for Ms Trainor submits, that the evidence establishes that Anderson engaged, in a prolonged course of unwanted sexual conduct toward the applicant, that left her feeling extremely upset, anxious and distraught and ultimately caused the development, of a serious psychiatric condition. I cannot agree that that is the case. There was, according to the unchallenged evidence of Dr Trott, a pre-existing condition, albeit one that was exacerbated by the actions of Anderson. It is submitted for the respondent however, that it is not possible to attribute the present condition, of the applicant, to the incidents on Norfolk Island, even though Ms Trainor might assert that, this is the case.
I would find it impossible on the evidence before me to consider that the actions of Anderson, thought unwanted and unwelcome, were prolonged. In fact the two incidents fell within six days of each other and in fact it would appear, on the clear evidence, that the applicant was only on Norfolk Island for a total of about ten days. There was not therefore, a prolonged course of unwanted sexual conduct by Anderson, toward the applicant. It may be that the two incidents themselves, plus of course the surrounding distress that Ms Trainor experienced, has had a significant or serious impact on her, but it clearly was not of a nature that one could consider as, prolonged harassment.
Ms Trainor gives evidence that on the morning following the first incident she:
“avoided looking at him whilst speaking to him because his mere presence made me nervous”
and she says that she thereafter made sure that was never alone with Anderson. Those reactions were, I would think, understandable in any women but perhaps in Ms Trainor’s case were of greater significance than might be the case with others. The fact is however, that even if the first incident lead to a continuing feeling of distress, it was not as a result of a period of lengthy harassment or actions by Anderson.
Insofar as general damages are concerned, Counsel for the applicant submits that an appropriate amount for compensation for general damages, would fall in the high end of the range, given the applicants acute psychiatric condition. What is clear however is that the applicant has gotten on with her life. It is submitted for the respondent, that within a short period of time, about one month or so, the applicant had recommenced employment and that her work history had continued to be similar to that which existed, prior to her time on Norfolk Island. It was in fact clear from Ms Trainor’s own evidence that she returned to some casual employment in September of 2000 in Adelaide and continued in casual employment thereafter. More particularly, she returned to full time study in July 2002 and has received various government allowances including Ausstudy since that time, as well as working part time in various capacities, earning up to the amount that she was allowed to earn, before there would be reductions in the various benefits, to which she was entitled.
Ms Trainor certainly experienced distress and difficulties as a result of sexual harassment. It could not however in my view be suggested that the appropriate amount for compensation for general damages would fall within the high end of the range, particularly in light of the fact that the incidents ocurred within a short period of time and thereafter ceased, upon the dismissal of Anderson and secondly, in light of her return within a short period of time to employment, of a similar nature. The appropriate amount for compensation is one which should reflect the seriousness of the incidents and also the effect upon the applicant. Consideration must however be given to the medical evidence including pre-existing conditions and subsequent effects upon the applicant. In all the circumstances I am of the view that the appropriate figure for general damages would be, $5,000.00.
I accept the evidence in relation to medical treatment, though I am mindful of the fact, that the applicant does not appear to have availed herself generally, of treatment. The fact is however, that she may simply have not had the funds available, to avail herself of necessary treatment. I intend to fix a sum in relation to medical treatment in the amount of $1,907.50.
Past loss of income is claimed, from the date of resignation until hearing, a period of approximately 3 years. What is clear from the evidence however, is that employment on Norfolk Island had a maximum period of 12 months, because of the limitations relating to employment and residence on Norfolk Island and one must also be appreciative of the fact, that the applicants own work history was such, that she had not worked for lenghty periods, with any one particular employer. Her own explanation to that was that she travelled a lot and obtained temporary work, such as grape picking, or fruit picking as and when available to her.
Clearly an assessment of past loss of income, needs to be considered in light of the applicants own circumstances. Whilst the applicant says that it was her intention to work the whole of the contract period, because she needed to save some money, there is a real expectation that that would have been cut short. To suggest that it would be six months is realistic, which would have generated tax-free income of approximately $10,000.00. However, within four to six weeks of her return to Adelaide, the applicant did have some employment, though she says that it was of a menial nature and in some instances, included only commission payments. I am satisfied that there is some loss of income, but as best one can quantify, the appropriate sum would be $5,000.00.
Past economic loss is also claimed, but it is indicated that consideration needs to be given to the applicant’s university commitments and to take into consideration the applicant’s free accommodation. I am not satisfied that there is a proper basis upon which past economic loss can be calculated, particularly in light of the nature of the applicant’s employment history. The assumption of increases in salary is one that is falsely based, in light of the restrictions that fall upon the applicant’s employment on Norfolk Island. I am satisfied that there is no proper basis which there could or should be an inclusion for past economic loss.
Interest is claimed in relation to loss, up to the date of judgement, being compensation for the fact, that the applicant would be without money due to her. Interest should be paid in relation to general damages and also in relation to loss of income, prior to hearing. It would not in my view be appropriate for there to be any award of interest in relation to medical expenses, those expenses not having been incurred. The interest on general damages calculated at 9.5% would be $1,564.65 and on loss of income again calculated at 9.5% would be $1,564.65.

The final head of damages, is future loss of income. Dr Trott indicates, in his oral evidence, that there is an increased risk to the applicant’s employability. He indicates in his evidence that Ms Trainor, would possibly be inclined to distrust co-workers and employers and as he said in his oral evidence, may simply remain in her own comfort zone. Dr Trott indicated, that it was his opinion that Ms Trainor would,
“more than likely have difficulties with relationships with employers and employees and it may be the case that she would just disengage”.
What is clear however, is that Ms Trainor has gone on with study and employment. There may be some limited effect in relation to future loss of income, but it would seem that with the treatment that has been recommended by Dr Trott and accounted for in the claim, that future income will not be significantly effected by the events on Norfolk Island in 2000. Future economic loss however must be considered as a whole and I would fix a sum in relation to that head of claim of $2,500.00.
Having made these calculations. The total of damages and interest would be $17,536.80 and I will Order that that sum be paid by the respondent.

Apology

The applicant seeks an apology, in relation to the incidents on Norfolk Island. The Court has power to Order the respondent to extend an apology, pursuant to section 46PO(4)(b) of the HREOC Act. It is contended on the part of the applicant, that as the applicant was entitled to feel safe in the accommodation provided by the respondent and was entitled to expect that the respondent would have policies, procedures and training and other measures in place to protect her from sexual harassment by fellow employees and to address incidents of sexual harassment once they have occurred, that an apology should be forthcoming, notwithstanding that the perpetrator of the sexual harassment was not directly the respondent, but rather the employee of the respondent.
I am not convinced that this is required in relation to this particular matter. It is suggested that the applicant may be aided in her rehabilitation with the redress of an apology being made on behalf the respondent company. The incident however is old in time and it would in my view be a token and one that is unnecessary, in all the circumstances.
The applicant seeks an Order for costs in respect of the proceedings. Costs should be paid in relation to the matter and I intend to make an Order with regard to same. I certify this as a case suitable for an advocacy loading.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate:

Date: