Hobart law shop issued disgraceful defamation letter to young victim of sexual harassment … Defamation bluster … Abuse of power imbalance … Effect on emotional wellbeing … Aggravated damages … Max Shanahan reporting
The original complaint of sexual harassment, upheld by the tribunal, was made by Lucy Orchard, an employee of a Sanity retail store, against Toll delivery driver Frayne Higgins.
In total, the tribunal awarded compensation of $45,000, including $20,000 of aggravated damages. The Toll courier objected to the aggravated damages, claiming they were manifestly excessive.
Higgins was found to have sexually harassed Orchard in the course of his job making deliveries to the Sanity store. On several occasions, Higgins referred to Orchard as “Juicy Lucy,” jumped out from behind racks to surprise her, “generally engaged in sleazy, intimidating and favouring behaviour towards her” and, on one occasion, slapped Orchard on her bottom without consent.
These incidents prompted a Sanity manager to complain to Toll, without Orchard’s knowledge, about the behaviour of its employee.
Higgins was “stood down from all deliveries for a period of time.” However, after learning that a complaint had been made, Orchard asked for it to be withdrawn because she “did not want to cause trouble”.
Higgins was reinstated on the condition that he no longer ply the Sanity delivery route and the issue appeared to have been resolved.
However, incensed by what had happened, Higgins instructed his solicitor to threaten Higgins with a defamation action over the complaint which she (a) never made herself and (b) withdrew when made aware of its existence.
It went on to demand that Orchard pay $30,000 to Higgins as compensation for lost income incurred by his removal from the Sanity route.
If these demands were not met, then “Mr Higgins reserves his right to issue legal proceedings for defamation without further notice”.
After receiving the letter, Orchard took stress leave, was prescribed anti-depressants and eventually left her employment at Sanity.
The tribunal found that Higgins’ conduct “caused distress and humiliation” and that “the impact on [Orchard] was profound”.
Tribunal member Kate Cuthbertson tellingly accepted Orchard’s submission that it was necessary and in the public interest to “send a strong and clear message that perpetrators of sexual harassment … will be heavily sanctioned if they attempt to intimidate and bully victims into silence by threatening them with an action in defamation”.
Higgins’ Supreme Court appeal was dismissed on all grounds, with Blow CJ finding that the the defamation letter “had an enormous impact on [Orchard’s] ability to enjoy life” and that the tribunal’s award of aggravated damages, “was clearly proportionate to the suffering contributed to by the various aggravating circumstances”.