Fetherston v Peninsula Health

[2004] FCA 485

FEDERAL COURT OF AUSTRALIA

Fetherston v Peninsula Health [2004] FCA 485

DISCRIMINATION – disability discrimination – medical practitioner employed by public hospital – vision impairment due to diabetes – failure to provide aids – termination of employment – whether applicant discriminated against on ground of disability – whether requirement of independent assessment of visual disability reasonable – refusal to allow independent eye specialist to provide report to employer – whether termination “because of” disability – whether treatment less favourable than treatment that would be given to a person without the disability in "circumstances that are the same or are not materially different" – assessment of damages – interest

Disability Discrimination Act 1992 (Cth), ss 3, 4, 5, 6, 10, 15
Human Rights and Equal opportunity Commission Act 1986 (Cth) s 46PO(4)(d)
Federal Court of Australia Act 1976 (Cth) s 51A

Purvis v New South Wales (Department of Education and Training) (2004) 78 ALJR 1 applied
Addis v Gramophone Company [1909] AC 488 cited
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 256 cited
Stephenson v Human Rights and Equal Opportunity Commission (1995) 61 FCR 134 at 142-143 cited
Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26 at [44] referred to
Spencer v Dowling [1997] 2 VR 127 at 144-145 followed
EMCL Pty Ltd v ESANDA Finance Corporation Pty Ltd [1999] FCA 978 at [62] applied

GRAHAM JOHN FETHERSTON v PENINSULA HEALTH & ORS
NO. V 391 OF 2002

HEEREY J
23 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V391 OF 2002

BETWEEN:

DR GRAHAM JOHN FETHERSTON
APPLICANT

AND:

PENINSULA HEALTH
FIRST RESPONDENT

DR JOHN BOTHA
SECOND RESPONDENT

ASSOCIATE PROFESSOR DAVID LANGTON
THIRD RESPONDENT

DR PETER BRADFORD
FOURTH RESPONDENT

MR MICHAEL DAWSON-SMITH
FIFTH RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

23 APRIL 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   The application is dismissed

2.   The applicant pay the respondents’ costs, including reserved costs

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V391 OF 2002

BETWEEN:

DR GRAHAM JOHN FETHERSTON
APPLICANT

AND:

PENINSULA HEALTH
FIRST RESPONDENT

DR JOHN BOTHA
SECOND RESPONDENT

ASSOCIATE PROFESSOR DAVID LANGTON
THIRD RESPONDENT

DR PETER BRADFORD
FOURTH RESPONDENT

MR MICHAEL DAWSON-SMITH
FIFTH RESPONDENT

JUDGE:	HEEREY J
DATE:	23 APRIL 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant Dr Graham John Fetherston is a medical practitioner.  Since childhood he has suffered from diabetes-related visual impairment.  In early 2001 he was working for the first respondent Peninsula Health as Deputy Director of the Intensive Care Unit (ICU) at the Frankston Hospital.  At the end of 2000 his driver licence had been suspended as a consequence of what appeared to the relevant authority to be evidence of further deterioration in his eyesight.  Around this time there were concerns expressed by medical and nursing staff at the hospital about the performance of his duties. 

2. The hospital authorities requested Dr Fetherston…