Bassanelli v QBE Insurance - [2003] FMCA 412

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BASSANELLI v QBE INSURANCE

[2003] FMCA 412

HUMAN RIGHTS – DISABILITY DISCRIMINATION – where the applicant applied for travel insurance – where the applicant claimed that she did not want a policy to cover her pre-exiting medical condition - where the applicant was denied cover because of her pre-existing medical condition – whether this denial was unreasonable.

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s.46PO
Disability Discrimination Act 1992 (Cth) ss.4, 5, 24, 46
Equal Opportunity Act 1994 (Vic) s.17(5)(c)

Disabled Peoples International (Australia) Limited v Telstra Corporation Limited HREOCA Matter H95/51
Xiros v Fortis Life Assurance [2001] FMCA 15
Waters v Public Transport Corporation (1991) 173 CLR 349

Applicant:

DENICE MARALYN BASSANELLI

Respondent:

QBE INSURANCE (AUSTRALIA) LIMITED

File No:

AZ 76 of 2003

Delivered on:

26 September 2003

Delivered at:

Sydney

Hearing dates:

8 & 9 September 2003

Judgment of:

Raphael FM

REPRESENTATION

Solicitor for the Applicant:

Mr S Palyga

Counsel for the Respondent:

Mr S Walsh

Solicitors for the Respondent:

Phillips Fox

ORDERS

The Court declares that the respondent unlawfully discriminated against the applicant in breach of ss.5 and 24 of the Disability Discrimination Act 1992 by declining to issue to her a policy of travel insurance on 19 July 2002.
The Court orders:
(i)That the respondent pay to the applicant damages of $5,000 together with interest at the rate prescribed by the NSW Supreme Court rules from 19 July 2002 to the date of judgment in the sum of $543.70.
(ii)The respondent to pay the applicant’s costs to be calculated in accordance with Part 21 Rule 21.10 and Schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 76 of 2003

DENICE MARALYN BASSANELLI

Applicant

And

QBE INSURANCE (AUSTRALIA) LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction

On 10 April 2003 Ms Bassanelli filed an application in this court pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 seeking a determination as to whether she had been discriminated against by the respondent contrary to ss.5 and 24 of the Disability Discrimination Act 1992 (Cth) following the respondent’s refusal to issue her with a travel insurance policy on or about 19 July 2002. The applicant seeks a declaration, apology and damages.
The respondent submits that it was entitled to decline to issue the policy relying on the exemption contained in s 46 of the DDA which is relevantly in the following form:
“46(1) [Refusal to offer]
This part does not render it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, by refusing to offer the other person:
(a) …
(b) …
(c)a policy of insurance against accident or any other policy of insurance; or
(d) …
(e) …
if:
(f) …
(g) in a case where no such actuarial or statistical data is available and cannot reasonably be obtained – the discrimination is reasonable in regard to any other relevant factors.”
At all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 412
Decision Date: 26 September 2003

CaseChat Overview and Summary

The applicant, Bassanelli, brought an action against the respondent, QBE Insurance, in the Federal Magistrates Court. The case concerned the respondent's refusal to issue the applicant a policy of travel insurance due to her medical condition, which the respondent claimed was a reason for the denial. Bassanelli alleged that this constituted unlawful discrimination under the Disability Discrimination Act 1992. The court was tasked with determining whether the respondent's actions constituted a breach of the Act and, if so, what remedies were appropriate.

The primary legal issue was whether the respondent's refusal to issue a travel insurance policy to the applicant constituted discrimination on the grounds of disability. This involved interpreting sections 5 and 24 of the Disability Discrimination Act 1992 and assessing whether the respondent's actions were discriminatory and unlawful. The court needed to consider the definition of disability under the Act, the nature of the insurance policy, and the respondent's justification for the refusal.

The Federal Magistrates Court found that the respondent's refusal to issue the insurance policy constituted unlawful discrimination against the applicant. The court held that the respondent failed to demonstrate that the refusal was based on a legitimate business reason unrelated to the applicant's disability. Instead, the court found that the refusal was directly related to the applicant's medical condition, which was a protected attribute under the Act. Consequently, the court declared that the respondent had breached sections 5 and 24 of the Disability Discrimination Act 1992. The court also awarded the applicant damages of $5,000 plus interest from the date of the refusal to the date of judgment, and ordered the respondent to pay the applicant's costs as per the Federal Magistrates Court Rules.

The orders included a declaration that the respondent unlawfully discriminated against the applicant by declining to issue a travel insurance policy. Additionally, the court ordered the respondent to pay the applicant $5,000 in damages with interest, and to cover the applicant’s costs as per the specified rules.

Orders

Orders of the court

The Court declares that the respondent unlawfully discriminated against the applicant in breach of ss.5 and 24 of the Disability Discrimination Act 1992 by declining to issue to her a policy of travel insurance on 19 July 2002.

The Court orders:

(i) That the respondent pay to the applicant damages of $5,000 together with interest at the rate prescribed by the NSW Supreme Court rules from 19 July 2002 to the date of judgment in the sum of $543.70.

(ii) The respondent to pay the applicant’s costs to be calculated in accordance with Part 21 Rule 21.10 and Schedule 1 of the Federal Magistrates Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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