Clarke v Behrad
[2008] SAEOT 15
•23 December 2008
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
CLARKE v BEHRAD
[2008] SAEOT 15
Judgment of Her Honour Judge Trenorden, Member Mr H Yapp and Member Mr R Altman
23 December 2008
DISCRIMINATION LAW
Refusal by a driver of one of the second respondent's taxis to provide the complainant with a taxi service - Complainant was accompanied by his guide dog - Discrimination alleged by the complainant on the ground of impairment - Whether the taxi driver is an employee or agent of the taxi operator - Whether the taxi operator is vicariously liable for the actions of the taxi driver.
HELD: Taxi driver was the agent of the taxi owner for the purposes of the Equal Opportunity Act. Taxi driver was in breach of the Equal Opportunity Act. The second respondent vicariously liable for agent's contravention. Damages $750.00 awarded to complainant.
Equal Opportunity Act 1984; Passenger Transport Act 1994, referred to.
Michael Dawson v Michael Aronis (2005) SADC 165; Deluxe Red and Yellow Cabs Cooperative (Trading) Society Ltd & Anor v Commissioner of Taxation 1997 FCA 840; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Ellson v PB Taxi Co. Pty Ltd (No. 2) [2008] SAEOT 9, considered.
CLARKE v BEHRAD
[2008] SAEOT 15THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT:
The complainant in this matter, Anthony Clarke, is vision impaired and uses a guide dog. The complaint arises out of an incident at about 12.30am on 26 August 2006, when Mr Clarke, accompanied by his guide dog and his partner, Ms Lisa Pearce, endeavoured to engage a taxi standing at the taxi rank on the corner of Rundle Street and Pulteney Street, Adelaide, to take him to his home.
The first respondent, Solomon Kassa, was the driver of taxi numbered 2571, the first taxi in the queue at the taxi rank, that Mr Clarke sought to engage on 26 August 2006. Mr Kassa has not been served with proceedings. It appears that he is no longer living in South Australia. However, it is not in dispute that he was the driver of the taxi at the relevant time.
The second respondent, Mehdi Behrad, owned taxi 2571 and is an accredited taxi operator, pursuant to s 27 of the Passenger Transport Act (SA) 1994.
In accordance with the Equal Opportunity Act 1984, in the first instance the complaint was made to the Commissioner for Equal Opportunity. On 18 March 2008, the Commissioner referred the complaint to this Tribunal pursuant to s 95(8)(b) of the Equal Opportunity Act.
Mr Clarke complains that the taxi driver, Mr Kassa, discriminated against him because of Mr Clarke’s impairment, contrary to s 76(1)(d) of the Equal Opportunity Act and further, that Mr Kassa unlawfully imposed a condition or requirement in the provision of services that would result in Mr Clarke being separated from his guide dog in contravention of s 88(a) of the Equal Opportunity Act.
Further, Mr Clarke alleges that the second respondent, Mr Behrad, having engaged Mr Kassa to drive taxi 2571 and thereby to provide transport services to the public, breached the Equal Opportunity Act, as follows:
…
15 The second respondent caused, instructed, induced or aided the first respondent to act in contravention of the Act and is, pursuant to section 90 of the Act, jointly and severally liable to any criminal or civil liability arising under the Act in respect of the contravention.
16 The first respondent was an agent of the second respondent and was acting in the course of that agency while engaging in the conduct. Therefore, the second respondent is, for the purposes of the Act, vicariously liable for the conduct pursuant to section 91(1) of the Act.
17 In the alternative to paragraph 16 herein, the first respondent was an employee of the second respondent and was acting in the course of that employment while engaging in the conduct. Therefore, the second respondent is, for the purposes of the Act, vicariously liable for the conduct pursuant to section 91(1) of the Act.
18 PARTICULARS OF EMPLOYMENT RELATIONSHIP
18.1The employment relationship is to be inferred from the following:
18.1.1The first respondent was subject to the direction and control of the second respondent;
18.1.2The second respondent provided the relevant equipment and tools of trade namely the taxi;
18.1.3The driving of the cab was for the financial benefit of the second respondent;
18.1.4The first respondent was not conducting a business on his own account and could not generate any goodwill personal to himself.
19 The second respondent failed to provide the first respondent with adequate training, instruction or information about the laws with respect to guide dogs, or failed to provide training, instruction or information in such a manner that would ensue the first respondent understood his legal obligations with respect to guide dogs.
20 As a result of the conduct, the second respondent:
20.1Subjected the complainant to discrimination in the provision of services on the grounds of impairment in contravention of Section 76(1)(d) of the Act.
20.2Unlawfully imposed a condition or requirement in the provision of services that would result in the complainant being separated from his guide dog in contravention of Section 88(a) of the Act.
In Mr Clarke’s Particulars of Complaint lodged in this Tribunal, he sought the following orders:
1 A written apology from the first and second respondents.
2 A public apology from the second respondent to be placed in the Adelaide Advertiser.
3 The second respondent is to ensure that all taxis owned, leased, or controlled by it are fitted with “Guide Dogs Welcome” stickers, provided by the Guide Dogs Association of SA & NT.
4 The second respondent is to provide all drivers engaged by it with written instructions on their obligations and responsibilities under the Passenger Transport Act and the Equal Opportunity Act in relation to the carriage of blind and disabled clients. The second respondent is to require from the first respondent and every other driver written acknowledgement that they have received and understood the notice.
5 That the first and second respondent undertake disability awareness training.
6 Damages for financial loss, embarrassment, denigration, humiliation and stress.
As we have said, Mr Kassa has not been served with notice of the proceedings lodged in this Tribunal. Mr Clarke proceeded with his complaint against Mr Behrad. The following facts are undisputed:
§Mr Kassa was the driver of taxi 2571 at 12.30am on 26 August 2006;
§Mr Behrad was the owner of taxi 2571 at the relevant time and leased the taxi plate for the taxi;
§At about 12.30am on 26 August 2006, Mr Clarke together with his guide dog and his partner, Ms Lisa Pearce, approached the first taxi standing at the taxi rank on the corner of Rundle Street and Pulteney Street, Adelaide, in order to engage the taxi to take them to his home at Windsor Gardens;
§As Mr Clarke approached taxi 2571, there was a verbal exchange between Mr Clarke and Mr Kassa, also involving Ms Pearce;
§Mr Kassa locked the doors of the taxi, refusing to allow Mr Clarke and his guide dog to enter the vehicle, and drove away.
Mr Behrad has always acknowledged that he was the owner of the taxi and that Mr Kassa was driving the taxi at the relevant time. Mr Behrad has not denied that Mr Kassa contravened the Equal Opportunity Act. However, Mr Behrad asserts that Mr Kassa drove the taxi under an oral contract of bailment.
Soon after he was served with the Particulars of Complaint lodged in this Tribunal, Mr Behrad wrote to the Tribunal, by way of a response to the Particulars of Complaint, expressing his wish to apologise on behalf of his taxi driver at the relevant time, Mr Kassa. However, he denied liability for any contravention of the Equal Opportunity Act by Mr Kassa. Subsequently, Mr Kassa also expressed his sincere sympathy towards Mr Clarke, but again denied any responsibility and liability for any damages suffered by Mr Clarke.
The Arrangement between Taxi Owner and Taxi Driver
As we have said, the facts of the incident on 26 August 2006 are not in dispute. It is accepted that Mr Kassa contravened the Equal Opportunity Act. The primary question for the Tribunal is whether Mr Behrad is liable for the actions of the driver of his taxi.
Mr Behrad has a fleet of taxis. He owns three vehicles and leases six, and either owns or leases taxi plates for each of these vehicles. His fleet is part of the fleet of taxi vehicles known as Adelaide Independent Taxis, which offer passenger transport services, including a booking service, to the public. Mr Behrad pays a weekly fee to Adelaide Independent Taxis, that enables his drivers to access the Adelaide Independent Taxis’ call centre and thus access jobs made available through the call centre, by means of a device installed in each taxi by Mr Behrad. However, the drivers are not limited to accepting passengers from this source, and at night most of the fares are from passengers picked up from taxi stands.
In respect of the taxi vehicle, Mr Behrad is responsible for the following:
· the registration and insurance;
· the cost of repairs and servicing;
· the cost of fuel;
· the cost of cleaning;
· supplying and installing the meter;
· installing GPS equipment or placing a street directory in the vehicle;
· having the Adelaide Independent Taxis’ radio and computer equipment installed;
· arranging for his bank to provide EFTPOS and credit card facilities in the taxi;
· payment of weekly fees to Adelaide Independent Taxis.
The driver of the taxi ordinarily is responsible for the following:
· keeping the car clean (but not at his expense);
· purchasing his “uniform” of blue shirt and black trousers, possibly with a badge identifying him as a driver for Adelaide Independent Taxis;
· providing his own cash container.
As the taxi owner, Mr Behrad directed where and when the taxi vehicles are to be serviced. If the driver needed to fuel the vehicle, he did so and charged the cost to Mr Behrad's account.
Mr Behrad engages drivers to drive the taxi vehicles in his fleet. When he needs a new driver, he checks to see whether any names of persons wanting to drive taxis have been left with Adelaide Independent Taxis. Mr Behrad will visit a potential driver and check his or her driver's licence and accreditation. No training of drivers is undertaken by or on behalf of Mr Behrad. Mr Behrad did not provide any training for Mr Kassa. As far as all the drivers were concerned, Mr Behrad relied, and considered he was entitled to rely, upon the fact that Mr Kassa was an accredited taxi driver and therefore must have undergone training and acquired the relevant knowledge to become an accredited taxi driver.
Although it is unclear, presumably the potential driver is told, and in Mr Kassa’s case, was told how to fill in the daily worksheet, and it was agreed whether the driver would drive during the day shift or the night shift (6pm or 6.30pm to 6am or 6.30am). It was arranged that Mr Kassa would drive during night shifts on a regular basis, that being 4 or 5 nights a week. He collected the taxi from the home of the day shift driver and returned it to the same place.
The standard arrangement between the taxi owner and the driver, according to Mr Behrad, is that each receives 50% of the fares taken in the course of the shift. This was the arrangement between Mr Behrad and the driver Mr Kassa. According to Mr Behrad, Mr Kassa had his own ABN number and Mr Behrad assumed that Mr Kassa attended to his obligations in respect of the goods and services tax law.
The taxi drivers fill out a daily worksheet for their shift, on which the driver records the details of each fare, tallies the total value of the takings and records the value of any fuel purchased and any taxi vouchers or EFTPOS or credit card transaction. Having tallied the total value of the takings, the driver writes on the worksheet the amount that is 50% of the takings for the shift. This amount is taken by the driver in cash (from the takings), as his share. The taxi owner receives 50% of the value of the fares on any particular day, being the total of the value of any taxi vouchers, EFTPOS or credit card transactions taken made that day, plus cash from which he pays disbursements (fuel, etc) incurred to keep the taxi operating as a taxi. Mr Kassa periodically took the worksheets to Mr Behrad, together with the cash to which the taxi owner was entitled, having first taken out his own share of cash.
There was no written contract of employment or indeed any document identifying the arrangement or the relationship between Mr Kassa and Mr Behrad. As a result of a conversation between them, Mr Kassa became a night shift driver for Mr Behrad, with an understanding that each would receive 50% of the daily takings from fares.
The arrangement appears to have been relatively loose – Mr Behrad required the taxi driver to drive the taxi on the busy nights (Friday and Saturday), but was apparently unconcerned if Mr Kassa chose not to drive on for example, Monday, Tuesday or Wednesday nights. Whether to work on these nights was within Mr Kassa’s discretion. We were told that Mr Kassa was expected to drive the taxi 4 or 5 nights per week, but the decision whether to drive on the nights that were less busy, appears to have been Mr Kassa’s.
The daily worksheets completed by Mr Kassa and provided to the Tribunal, reveal that while on most of his shifts Mr Kassa drove taxi 2571, he also drove other taxis, namely taxis 2549 and 2231. According to Mr Behrad, each taxi generally had 2 drivers, one for the day shift and the other for the night shift. Generally Mr Kassa was the night driver for taxi number 2571. As Mr Behrad supplied the worksheets filled out by Mr Kassa for these taxis in addition to taxi 2571, we have concluded that these taxis were also owned by Mr Behrad.
The facts suggest that Mr Behrad is engaged in the business of providing taxi services. He owned or leased a number of motor vehicles for which he had acquired or leased taxi plates. He paid fees to Adelaide Independent Taxis for the service they provided including the radio and computer to enable a driver to access requests for taxi services made through Adelaide Independent Taxis. Mr Behrad fitted or arranged to have fitted or placed in the taxi, facilities both to enable a driver to access directions to a destination and accept fares paid by EFTPOS or credit card. He engaged Mr Kassa and others as taxi drivers.
Although to some extent these drivers operated independently, in the sense that they were not directed by Mr Behrad to accept any particular fare or ply any particular route, they were the means by which Mr Behrad obtained an income from his investment in the vehicle, the taxi plate and the services provided by Adelaide Independent Taxis. Without the drivers to operate the taxis, Mr Behrad would have no business. Without Mr Behrad's taxis, the drivers would have to look elsewhere for an income. It was a mutually dependent relationship.
The Passenger Transport Act 1994
In South Australia the provision of passenger transport services is governed by the Passenger Transport Act 1994. It is this legislation that requires taxis to be licensed (see s 45) and for drivers of public passenger vehicles to be accredited (see s 28). A “public passenger vehicle” includes a taxi (see s 4(1)).
It follows that the business operated by Mr Behrad is a passenger transport service as defined in the Passenger Transport Act. Mr Behrad operates that service by means of the persons who operate as taxi drivers. It would appear that the drivers are the agents by which the taxi service is provided and therefore the business is carried on. Indeed, as was recognised by His Honour Judge Muecke in Michael Dawson v Michael Aronis (2005) SADC 165, the Passenger Transport Act does not contemplate that a person who operates a passenger transport service would do so by someone other than an employee or agent: see s 58.
The Nature of the Relationship Between Owner and Driver
We were referred to a number of authorities concerning the appropriate characterisation of the relationship between Mr Kassa and Mr Behrad, as driver and owner respectively. Mr Behrad referred us to Deluxe Red and Yellow Cabs Cooperative (Trading) Society Ltd & Anor v Commissioner of Taxation 1997 FCA 840 as authority for the proposition that a taxi driver is a bailee of the taxi cab he or she drives, plying the taxi in his or her own business. A taxi driver, it is said, is neither an employee nor does he or she receive payment for his or her labour under a contract of labour. However, that decision of the Federal Court of Australia can be distinguished. The case concerned the issue of whether the applicants were employers and the drivers were employees within the meaning of the Superannuation Guarantee (Administration) Act 1992. In order to answer the question, the Federal Court had to consider whether the monies paid to the taxi driver that constituted “salary or wages” as defined in the Income Tax Assessment Act 1936. The purpose of that litigation was quite different from the matter before this Tribunal. The Court held that the drivers were employed in their own business, on their own account. They were not employees, but were bailees of taxicabs which they include to further their own business.
For the purposes of the Income Tax Assessment Act, the taxi drivers in the case concerned, were not employees or contractors. The question as to whether a taxi driver is an agent of the taxi owner was not canvassed. It was not necessary to do so.
Counsel for the complainant canvassed the authorities dealing with both agency and employment, in the interests of assisting the Tribunal to determine whether Mr Behrad is vicariously liable for Mr Kassa’s act contrary to the Equal Opportunity Act.
Employee
Our attention was drawn to the High Court judgment in Hollis v Vabu Pty Ltd (2001) 207 CLR 21. In that matter, the issue was whether the respondent was vicariously liable for injury suffered by the complainant as a result of a bicycle courier’s negligence. At the relevant time the bicycle courier was wearing a uniform including the name “Crisis Couriers” which was the trading name of the respondent.
On the facts, this is a different case from Hollis v Vabu. The facts in this case are also different to the facts in Ellson v PB Taxi Co. Pty Ltd (No. 2) [2008] SAEOT 9, where another division of this Tribunal found that the taxi driver was an employee of the respondent company which operated a passenger transport service. There, applying the test in Hollis v Vabu, the Tribunal found that the driver was an employer of the taxi operator. A written agreement existed between the driver and the taxi operator. The driver did not drive night shifts only.
It must be remembered that Hollis v Vabu was a case concerned with whether the respondent was vicariously liable for the negligent act of one of its bicycle couriers. Here we are concerned with whether Mr Behrad is vicariously liable for the act of Mr Kassa in contravention of the Equal Opportunity Act. However, it may be helpful to analyse the evidence of the relationship between Mr Kassa and Mr Behrad, in light of the factors considered relevant in Hollis v Vabu.
Mr Kassa was providing his skilled labour, as an accredited taxi driver. The understanding between him and Mr Behrad was that he would:
· drive a taxi, generally taxi 2571, 4 or 5 nights per week which definitely included Friday and Saturday nights;
· start his shift at 6-6.30pm on working nights;
· collect the taxi from the home of the day shift driver;
· finish the night shift at 6-6.30am;
· return the taxi at the end of the shift to the home of the day shift driver;
· fill out a daily worksheet in respect of the taxi;
· take his share of the fares out of the cash payments received;
· periodically take the daily worksheets, taxi vouchers, credit card slips and remaining cash from fares, to Mr Behrad;
· clean the taxi as necessary;
· fuel the taxi as necessary;
· telephone Mr Behrad or the day shift driver to advise if he was unable to work on Friday or Saturday nights.
Mr Kassa was not in the position of being directed by Mr Behrad to take the taxi to be serviced, for example because he was a night shift driver only. Indeed, on nights other than Friday and Saturday nights, it seems to have been up to Mr Kassa whether he drove the taxi or not.
Mr Behrad did not direct Mr Kassa to wear a uniform, or to regularly have the taxi cleaned. These were considered by Mr Behrad to be matters for Mr Kassa; that the latter’s training encouraged attention to these things and while they might to some extent have been expected of Mr Kassa by Mr Behrad, he did not direct Mr Kassa.
We have concluded that the relationship between Mr Behrad and Mr Kassa was not that of employer and employee.
Agency
Mr Behrad is and was at the relevant time, a provider of taxi services. Under the Passenger Transport Act, he was the operator of a passenger transport service. He was a member, or used the services of Adelaide Independent Taxis to provide his taxi services. Mr Behrad’s taxicabs carry the branding of Adelaide Independent Taxis and the latter provided, through its booking facility, one means by which drivers of Mr Behrad’s taxis could find passengers for the services offered. Mr Behrad operated a business. However, he needed the drivers to generate income from his investment in the taxi vehicles and plates. Mr Behrad offered to the public a passenger transport service, but through the medium of, in the case of taxi 2571 on the morning of 26 August 2006, the driver of that taxi, Mr Kassa. It follows that Mr Kassa as the driver of taxi 2571, was the agent of Mr Behrad, the owner of the taxi carrying taxi plate 2571.
Thus, Mr Behrad is vicariously liable for the contravention of the Equal Opportunity Act by Mr Kassa.
The Appropriateness of the Orders Sought
Mr Clarke sought a written apology, and a public apology to be placed in the Adelaide Advertiser. In his letter to the Equal Opportunity Tribunal on 3 April 2008, Mr Behrad expressed his regret that the incident on 26 August 2006 had occurred and expressed his wish to apologise on his taxi driver’s behalf. At the hearing, Mr Behrad said that he was “sincerely sympathetic towards the complainant”.
In this case, the contravention of the Equal Opportunity Act was by the driver, Mr Kassa. We have determined that Mr Behrad is vicariously liable for that contravention, in as much as there were consequences for Mr Clarke. Mr Behrad took no responsibility for training Mr Kassa, as a driver of one of Mr Behrad’s taxi vehicles, with respect to his obligations under the Equal Opportunity Act and in particular, in relation to the obligation to carry guide dogs. Given that a taxi owner is vicariously liable for the acts of his driver where they contravene the Equal Opportunity Act, it is clear that it is in the interest of a taxi owner to take positive steps to ensure that the taxi driver of the taxi owner’s vehicle understands and complies with the requirements of the Equal Opportunity Act. It will not be sufficient for a taxi owner to rely on a taxi driver’s training in the course of the accreditation process.
We do not accept that any real purpose will be achieved by the Tribunal directing Mr Behrad to write an apology to Mr Clarke, when he has already publicly expressed his regret and sympathy towards the latter. Neither do we accept that a public apology would serve a useful purpose. Counsel for Mr Clarke suggested that a written apology could be placed in the Public Notices section of the Advertiser. It is our view that there would be limited utility in this course being undertaken. While Mr Behrad was vicariously liable for the contravention, there was no intention on his part to cause the contravention. We accept that in some circumstances a public apology would be appropriate, but in the circumstances of this matter, we do not accept that it is an appropriate course.
The third order sought was that Mr Behrad ensure that all his taxis are fitted with “guide dogs welcome” stickers. We understand from Mr Behrad’s evidence, that this has been attended to. However, we note that an order of this nature would not resolve the problem that must be overcome. That is, it is the drivers who must understand that they must accept a guide dog when it is accompanying a person with an impairment.
The fourth order sought to have the second respondent ordered to provide all drivers with written instructions on their obligations “under the Passenger Transport Act and the Equal Opportunity Act in relation to the carriage of blind and disabled clients”, as well as requiring Mr Behrad to require written acknowledgement from the drivers that they have received and understood the notice.
We do not accept that such an order or orders would resolve the misunderstanding that gave rise to the incident the subject of these proceedings. It is clear that Mr Kassa’s first language is not English. We do not know of the extent of his ability to comprehend written instructions in English. It is our view that the more important need is for a taxi owner such as Mr Behrad, to understand the importance of ensuring that the drivers of his taxi vehicles know, and are prepared to carry out, their obligations under the Equal Opportunity Act. We do not accept that this would necessarily be achieved by the provision of written instructions to drivers together with a requirement that each driver acknowledge in writing that they have received and understood the instructions.
The fifth order sought was that the first and second respondent undertake disability awareness training. We are satisfied that Mr Behrad understands his obligations under the Equal Opportunity Act. However, he did not appreciate that he would be vicariously liable for any failure by one of his taxi drivers to observe the provisions of the Equal Opportunity Act. It follows that he was not aware of the need to ensure that his drivers understood those obligations. We note that one of the functions of the Commissioner for Equal Opportunity is to “foster and encourage amongst members of the public informed and unprejudiced attitudes with a view to eliminating discrimination on the ground of … impairment …”: s 11(1) Equal Opportunity Act. We note that this matter is not the first before the Tribunal with respect to the failure by a taxi driver to observe the requirements of the Equal Opportunity Act with respect to the carriage of a guide dog when accompanying a person with an impairment. In the circumstances, we wonder whether the Commissioner might appropriately take steps to educate and inform a particular group of members of the public, namely the taxi industry including taxi owners and taxi drivers. If we had been made aware that such a program was available, we would have seriously considered directing Mr Behrad to attend.
Finally, Mr Clarke sought damages for financial loss, embarrassment, denigration, humiliation and stress. In this regard, we heard evidence from Mr Clarke that immediately following the incident he was upset with physical and emotional consequences. He was also embarrassed.
Mr Clarke is a professional speaker in the motivational and personal development spheres and has to rely on being driven to the venues of the functions at which he has a speaking engagement. It appears that this is not the only incident he has had with a taxi driver. As a result of the subject incident and other incidents with taxi drivers, he now uses a chauffeur service whenever he can. However, he is entitled to a 50% subsidy from the Taxi Board if he takes a taxi, which subsidy is not available to Mr Clarke if he uses a chauffeur driven vehicle. Accordingly, it costs more for Mr Clarke to use a chauffeur driven vehicle than to use taxis. Mr Clarke estimated his use of cars to be, on average across the year, 1 ½ - 2 times a week. From his home to the city, the average fare with a taxi is about $28.00 while with a chauffeur service it is around $30.00 or $32.00 according to his evidence. With the discount for which he is eligible from the Taxi Board, the cost of the taxi fare on average would be about $14.00. Accordingly home to city trips would cost Mr Clarke an additional $16.00 to $18.00 per trip on average. Thus on an average annual basis, assuming that Mr Clarke averages 2 trips between his home and the city per week, he would pay between $1,664.00 (at $16.00 difference per trip) and $1,872.00 (at $18.00 difference per trip) more to use a chauffeur service than taxis.
The change by Mr Clarke from using taxi services to chauffeur services is not as a result of this single incident involving Mr Kassa but results from the combination of incidents both before and since the subject incident.
We have considered what has been put to us concerning the appropriate amount of damages to be awarded to Mr Clarke. We accept that it is appropriate that there be an award of damages. We consider that the most appropriate comparison in relation to the amount of damages is the case of Ellson v PB Taxi Co. Pty Ltd (No. 2). There, the complainant was awarded the amount of $1,000.00 in damages for injury to feelings; the complainant’s distress being attributable to the whole of the incident precipitated by the taxi driver’s conduct in refusing to take him together with his guide dog into the taxi. Although it is always difficult to compare cases, it does seem to us that the extent of the incident and the complainant’s distress in that matter was greater than was the case in the subject incident. It would be inappropriate to award Mr Clarke more than $1,000.00. It is our concluded view that he is entitled to an award of damages in the amount of $750.00 for embarrassment, humiliation and stress suffered by him directly as a result of the incident.
We have concluded that it would not be appropriate to award damages for financial loss, as Mr Clarke’s decision to use a chauffeur service instead of taxis has been made as a result of a number of incidents and not merely as a result of the subject incident.
Decision
Mr Behrad is vicariously liable for the contravention of the Equal Opportunity Act by his taxi driver Mr Kassa, that occurred when Mr Kassa refused to accept Mr Clarke together with his guide dog and his partner into taxi 2571 on 26 August 2006.
There will be an order by the Tribunal that Mr Behrad pay by way of damages to Mr Clarke, the amount of $750.00.
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