Commentary
- This decision was based on the preceding legislation to the Privacy and Data Protection Act 2014 (Vic.) (PDP Act), the Information Privacy Act 2000 (Vic.) (IP Act). However, the decision still provides useful guidance on the interpretation of the PDP Act, particularly where VCAT may be inclined to find a breach of privacy proven but decline to take any further action or award a remedy.
Compensation for non-economic loss
- This decision asserts that where an individual is seeking a large amount of financial compensation for non-economic loss, VCAT expects their claim to be supported by some form of medical evidence.
- This stance aligns with other decisions such as Duggan v Moria Shire Council (VCAT Unreported Orders) G394/2004 where the medical evidence was scrutinised to determine if the injury did directly relate to the incident, or SD and SE and Northside Clinic (Vic) Pty Ltd [2020] AICmr 21, where significant weight was given to the evidence as it showed treatment before and after the privacy incident.
Facts and decision
- Mr Whitfield and Ms Waltham (the Complainants) found a lost dog, took it in, and telephoned the Greater Bendigo City Council (Council) to inform them they found the dog and request that a ranger come and collect it from their property.
- The phone call was made to Council on a Saturday, during which time Council outsourced its service to a subsidiary of Chubbs Security who took the Complainants’ call.
- The operator who took the Complainants’ call then gave the telephone number and address of the Complainants to a subsequent caller who was looking for their lost dog.
- The Complainants alleged that they went on to receive multiple phone calls from people looking for lost dogs, including an abusive and aggressive caller as well as an unknown vehicle approaching their property.
- At trial, VCAT accepted that there had been a breach of the IP Act and therefore the majority of the decision dealt with whether the Complainants were entitled to some form of compensation.
Compensation
Submissions
- The Complainants sought an order for compensation in the amount of $50,000 for non-economic harm:
- Mr Whitfield alleged that he suffered from stress, anxiety and worry as a result of the breach. This included: his nervous condition deteriorating, suffering shock, not being able to sleep at night, and worrying when animals on his property made undue noises which caused him to get up and investigate.
- Ms Whitfield alleged that she also suffered from stress and worry as a result of the breach. In particular, she was worried about who might appear at her property, owing to a previous assault she had suffered, which had resulted in her taking steps such as delisting her phone number.
- Council contended that under s 43(1)(a)(iii) of the IP Act (substantially similar to s 77(1)(b)) VCAT should find the complaint proven but decline to take any further action.
Decision
- VCAT held that the complaint was proven but declined to take any further action in the matter. Some of the factors VCAT took into account when coming to this decision included:
- No medical evidence had been provided by either Complainant to support their injuries. Whilst VCAT noted that medical evidence is not always required, it expected some sort of medical evidence for a claim as large as the Complainants were seeking.
- Whilst the Complainants desired privacy and clearly took steps to secure it (such as by delisting their phone number), VCAT felt that having telephone calls made in relation to a lost dog, even abusive ones, would have been unlikely to have caused the injury that the Complainants were contending.