Haar v Maldon Nominees
[2000] FMCA 5
•23 October 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
Kerryn Haar v Maldon Nominees Pty Ltd (t/as McDonalds) and Ors
[2000] FMC MZ071
UNLAWFUL DISCRIMINATION – DISABILITY – whether term and condition imposed on re-entry constitutes unlawful discrimination - Disability Discrimination Act 1992 (Cth) s 5 s 9 s23 and s 24 – Human Rights and Equal Opportunity Act 1986 (Cth) s 3 s 46 PO
Applicant:Kerryn Haar
First Respondent: Maldon Nominees Pty Ltd (trading as McDonalds)
Second Respondent: Christalla Demetrios
Third Respondent Elizabeth Burnell
File No:MZ071/2000
Delivered on: 23rd October 2000
Delivered at: Melbourne
Hearing Dates: 26 and 27 September 2000
Judgment of: McInnis FM
REPRESENTATION
Counsel for the Applicant: Mr G Burns
Solicitors for the Applicant: Simon Parsons & Co.
Counsel for the Respondent: Mr A Clements
Solicitors for the Respondent: Ligeti Partners
IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
MELBOURNE REGISTRY
No MZ071 of 2000
BETWEEN:
KERRYN HAAR
Applicant
And
MALDON NOMINEES PTY LTD (T/AS McDONALDS)
First Respondent
And
CHRISTALLA DEMETRIOS
Second Respondent
And
ELIZABETH BURNELL
Third Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Kerryn Haar (the Applicant) pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) alleging unlawful discrimination.
The Applicant claims that the Third Respondent as agent and/or servant of the First Respondent unlawfully discriminated against the Applicant on 17 August 1997 in breach of the provisions of the Disability Discrimination Act 1992 (Cth) (DDA). The unlawful discrimination allegedly arose at a McDonalds restaurant at Leongatha in the State of Victoria (the McDonalds restaurant) then owned and/or operated by the First Respondent which was the employer of the Third Respondent. It is not alleged that the Applicant was refused entry to the McDonalds restaurant but rather that she was discriminated against on the ground that terms and conditions were imposed by the Respondents whereby the Applicant would be allowed access or use of the premises upon her return.
It is not in dispute that at all material times the Applicant was a person with a visual disability accompanied by a guide dog. In brief terms the Applicant’s allegation is that she was told by the Third Respondent that she should sit in a designated part of the McDonalds restaurant on her next visit.
As a consequence of the alleged unlawful discrimination the Applicant claims to have become upset and humiliated and further has suggested that she has been unable to return to the McDonalds restaurant as a customer since the date of the incident.
The original complaint by the Applicant had alleged that the incident occurred on Sunday 10 August 1997. This date was altered at the hearing to 17 August 1997 and no issue was taken by the Respondents in relation to the change of date.
The Evidence
The Applicant
The Applicant gave evidence that she was a 38 year old single woman living at home with her parents. She has had a visual impairment since birth and although she can see up close she cannot see far off distances. She believes that she has approximately 1 per cent sight.
On 17 August 1997 after attending church at Leongatha the Applicant attended the McDonalds restaurant. At the time she was accompanied by her guide dog “Kiev” who was in full harness. She had been taken to the McDonalds restaurant by her carer, Ms Melville and a friend, Wendy Chesterfield. At the McDonalds restaurant the Applicant and her friends met up with another friend namely Ms. Lynette Tapscott.
The Applicant upon arriving at the McDonalds restaurant ordered her food and then proceeded to sit at a table in an area described as the “party area”.
The Applicant told the Court that the McDonalds restaurant had been recently opened in Leongatha and that she had visited the restaurant on a regular basis over a number of weeks. She indicated that other eating venues were not really cheap meals and in particular an apparent competitor of McDonalds was “a bit dearer”. There is only one McDonalds restaurant at Leongatha.
Under cross examination by Mr Clements she agreed that she may well have attended the McDonalds restaurant up to 20 times prior to the date of the incident. She had never been refused entry. On each previous occasion she had her guide dog with her and sat in the restaurant. On previous occasions however she had not sat in the party area. The party area had seating adjacent to the playground equipment and is an area which is enclosed by partitions designed to prevent outside access to that area. The only access to the area is from inside the restaurant via a single doorway. The Applicant sat at a corner table with her friends away from the playground equipment and the doorway. The party area is under cover and protected from the wind by partitions.
Photographs provided by the Respondents (Exhibit R1) were tendered by agreement between the parties marked with an arrow indicating the table and chairs occupied by the Applicant and her friends. Photograph numbered 10 clearly shows that the table is in a position where it is not close to the playground equipment but indeed one of the tables furtherest away from that equipment. The Court was also assisted by a diagram tendered in evidence (Exhibit A2) which was a rough sketch prepared by the witness Ms. Melville. The Applicant in her evidence was able to provide some indication of where she sat at the McDonalds restaurant.
The Applicant gave evidence that a conversation occurred between the Applicant in the presence of her friends and the Third Respondent after the Applicant had concluded lunch and was about to leave the McDonalds restaurant.
According to the Applicant the Third Respondent said something like, “It would be better if the guide dog was outside, if he sat outside or just inside the doorway”. According to the Applicant this conversation occurred a short distance from the table which they had just left. The Applicant said that her carer, Ms. Melville appeared upset and said something like, “This could be a legal matter”. The Applicant said, “I was keeping my cool but Nicky was upset more than me at the time”.
The Applicant said she attempted to show the Third Respondent her guide dog card. The guide dog card (Exhibit A1) refers to the guide dog “Keiv” (sic) and on the obverse side reads,
“The Dog Act 1970 permits a blind or vision impaired person to be accompanied by their guide dog at all times when the guide dog is being used `bona fide’ by him or her. This applies even when and where a sighted person may be prohibited from taking a dog into that place.
It is generally unlawful to refuse access to a place to a blind or vision impaired person on the grounds that he or she is accompanied by a guide dog”.
The guide dog card is signed by the Attorney General of the State of Victoria.
The Applicant said that when she attempted to show the guide dog card to the Third Respondent that the Third Respondent did not appear to read the card but said something like “you’d be better if you sat outside or just near the doorway”. The Applicant said that the Third Respondent said something like “Kids drop their food and the kids will pick it up and eat it and it would not be good if they picked it up after the dog.” The Applicant said she told the Third Respondent “It was a guide dog”. The Applicant states the Third Respondent then said something like, “Guide dog or not no dogs are allowed in this place”. The Applicant confirmed that the dog was in full harness which includes a leash and a choker chain. It is not suggested by the Applicant in her evidence that she was refused entry to the restaurant but rather that the conversation which occurred at the end of her meal when she was about to leave made her feel that she wasn’t ever wanted in the restaurant.
During the course of her evidence the Applicant at one point became upset and continued to state that she felt like she wasn’t wanted in the restaurant and as a result of the conversation felt that if she returned to the restaurant she would have to sit in another area or not at all.
After leaving the McDonalds restaurant the Applicant indicated that she dropped a friend off at Korumburra and then returned home. After returning home she telephoned a person she believed to be a manager at the McDonalds restaurant and explained what had happened. The Applicant gave evidence that she had not received an apology from this person and indeed has not received an apology at all from any person for or on behalf of the Respondents.
The Applicant gave evidence that later in the evening she went for a walk and during the course of that fell over and hurt her arm. She consulted Dr. Linton her general practitioner as a consequence of that incident.
The Applicant through her Counsel however does not claim as part of any damages the injuries sustained in the fall even though the Applicant gave evidence that she was then still upset and this may have had some influence over her fall.
In cross-examination the Applicant confirmed that the guide dog had a bowl which was placed under the table. She was not directed by the Third Respondent or anyone representing McDonalds restaurant as to where she should sit when she entered the restaurant. She denied that the Third Respondent asked whether she had enjoyed her meal or had attempted to clear up the table which the Applicant had just left.
When asked in cross examination to recall whether the Third Respondent picked up the bowl and emptied water, the Applicant indicated she couldn’t remember though conceded that might have occurred.
In relation to the conversation the Applicant denied the Third Respondent had said something like, “You might want to sit on the other side of the fence and you would not have to worry about children upsetting your dog or the dog’s bowl”. She reiterated that the Third Respondent had said “No dogs allowed”. She denied that she may have misunderstood the conversation. She denied that the Third Respondent had said that she was aware of the Applicant’s rights during the course of the conversation.
Under cross-examination the Applicant stated she was “absolutely staggered” by the conversation. She had not met the Third Respondent on previous visits to the McDonalds restaurant.
In answer to a question from the Court the Applicant said she had not been back to the restaurant since the incident and indeed suggested she cannot listen to advertisements on the television for the restaurant and has to leave the room when those advertisements are broadcast. She has not sought or received medical treatment apart from a consultation for her arm as a consequence of the fall. She does not take medication for anxiety and/or depression associated with the incident.
Nicolette Mary Melville
Ms Melville gave evidence that she was the carer of the Applicant and accompanied the Applicant to the McDonalds restaurant on 17 August 1997. She gave evidence concerning the visit to the restaurant and identified the seating arrangements from the photographs, which became Exhibit R1.
At the time of the visit to the McDonalds restaurant Ms Melville indicated that it was not particularly crowded although there were children around. The area in which the Applicant and her friends sat was not in the way of the children and there was no reason for anyone to go past.
In relation to the conversation which occurred when the Applicant and her friends were about to leave she states that the Third Respondent said words to the effect, “I am afraid you will have to move because you can’t have the dog inside, you’ll have to sit outside”. Ms Melville could not remember the exact words though indicated she had prepared a report about the matter that evening though has since lost and/or misplaced the original of that report. She forwarded the report to the Gippsland Southern Health Service.
She recalls during the conversation the Applicant saying something like, “It’s a guide dog and its entitled to go anywhere” and that an attempt was made to show the Third Respondent the guide dog card. Ms Melville said she told the Third Respondent something like, “Well look I understand how you feel it’s a legal issue, guide dogs can go here”. In response to that she indicated that the Third Respondent said something like, “I will call head office”. Upon leaving the restaurant Ms Melville gave evidence that she had the understanding that there was no way the Applicant could ever return inside the building, with the guide dog, it would have to be outside. She gave evidence that although she has not returned to the McDonalds restaurant for a meal with the Applicant she recalls the Applicant was a passenger with another person when food was collected from the McDonalds restaurant on two occasions since the incident.
Under cross examination Ms Melville indicated that the Applicant was very upset on each occasion when she was in a vehicle that returned to the McDonalds restaurant and no food was ordered by the Applicant on those subsequent visits.
She agreed under cross-examination that her recollection was patchy and did not remember the exact words which were uttered by the parties at the time. She did not remember the Third Respondent saying something like, “When the Applicant returns she may wish to sit on the other side of the fence as there is more room and would not have to worry about the children”. Ms Melville in cross examination denied misconstruing what had been said by the Third Respondent and was quite adamant that the Third Respondent had indicated that the dog must not be in the area but must sit outside. She indicated that upon hearing those words she was “taken aback, absolutely astounded”.
Lynette Joy Tapscott
In evidence Ms Tapscott confirmed that she had been present in the McDonalds restaurant on 17 August 1997 and confirmed that the area where the Applicant had sat was not particularly crowded on the day. The guide dog had sat under the table and in fact close to Ms Tapscott’s legs. Ms Tapscott was not aware of any bowl of water.
In relation to the crucial conversation she recalls being told by the Third Respondent that on the next occasion they should sit at a different table. She recalls the Third Respondent after a short discussion suggesting she might contact her boss.
Under cross-examination Ms Tapscott indicated she could remember the conversation but doesn’t recall the Third Respondent saying something like, “You might be more comfortable sitting outside on the next visit.”
Wendy Chesterfield
Ms Chesterfield was of limited assistance in her evidence and did her best to recollect the conversation which occurred some three years earlier. She recalls the Applicant being upset and that the Applicant had not been back for a meal at the McDonalds restaurant since the incident. She recalls a conversation where Ms Melville suggested to the Third Respondent that this could be a legal matter but she did not really remember the gist of the conversation prior to that comment. In general terms under cross examination she indicated that she had remembered the Third Respondent asking them to sit out the front of the McDonalds restaurant with the dog.
Medical Report Dr Tim Linton
By agreement a copy of a medical report dated 7 August 2000 was tendered for and on behalf of the Applicant. There is a degree of confusion about the dates in that report though it seems that the doctor saw the Applicant on 22 August 1997 for three problems. One related to a fall which had occurred five days prior to that time although the doctor notes that subsequently on 19 September 1997 the Applicant reported “that the fall was on 10.8.97”. He does note however that there was “no reference to undue mental distress”. In the report reference is made to the Applicant presenting again on four other occasions complaining of wrist pain. The physical injury in relation to the fall has not been pursued by the Applicant as part of any claim in the present matter and accordingly the most relevant passage from the medical report of Dr Linton is the following:
“In addition to the above I believe that Kerryn has been significantly upset by the reported events, and that her feelings of discrimination and unfair action have caused her to have diminished self worth. She has discussed this event with me at various times, and has struggled with the implications of not being allowed to do something because of her disability. It appears to me that this issue has been of such significance to Kerryn to mean that she continues to think about it”.
The Respondent’s Evidence
Elizabeth Burnell-Latham
Ms Burnell-Latham is the Third Respondent. She gave evidence that she had started work at the McDonalds restaurant in about March 1996 as an Assistant Manager. She had worked in the hospitality industry between 1986 and 1996 and was aware of laws in relation to disability discrimination.
In her evidence the Third Respondent indicated that she was new to the restaurant at Leongatha and had received some training both in the restaurant and by way of a manual.. She identified two manuals namely Exhibit R2 “Operations and Training – People” and Exhibit R3 entitled “Operations and Training – Personnel”. She agreed that the manuals had more to do with discrimination in employment and was unable to locate any item in either manual which related to disability discrimination concerning customers. She could not remember any specific training at all in relation to disability discrimination during her one week course at head office. Visual impairment was not specified during the training course at head office.
She indicated that she did not recall any particular policy at the McDonalds restaurant in relation to disability discrimination and nor did she recall ever being given specific instruction.
Ms Burnell-Latham stated that she believed that guide dogs were to be treated “like people” and this was something she was taught prior to her employment with the McDonalds restaurant. She indicated that she was aware that guide dogs were not allowed into the kitchen but otherwise there would be no restriction on the presence of guide dogs in other parts of the restaurant.
In relation to the crucial conversation she agreed that a conversation did take place as the Applicant and her friends were about to leave the McDonalds restaurant. She identified the party area from Exhibit R1. She gave evidence that after helping to clear the table and then asking the Applicant and her friends about the meal, she remembered saying that the Applicant may wish to sit on the other side of the partition as there is a tap and may be more space. She said, “I would have explained and wouldn’t have just said it may be better sitting on that side and why”.
She recalled being shown the card (Exhibit A1) but at the time was talking to the friend of the Applicant. She didn’t remember what the card said but recalls saying something like “I am not trying to discriminate I am thinking of your comfort. Just that there was a tap”.
The reference to the tap was not put to the Applicant or her witnesses during cross-examination though it appears in photographs 5 and 7 of Exhibit R1. Photograph 7 depicts a partition adjacent to the tap which separates the seating area from the carpark. It is common evidence that the partition was not present on 17 August 1997 and hence if the suggestion of sitting close to the tap had been accepted it would mean at that time sitting in an area exposed to wind albeit under shelter of the roof
Ms Burnell-Latham recalls the Applicant trying to find her guide card at one stage and saying to her that she understood her rights. Ms Burnell Latham said “I felt that they were getting upset out of my concern and I didn’t stay with them that long”. She indicated, “I felt they had taken what I said the wrong way”. When asked did you say the guide dog was not allowed in the restaurant she answered, “I don’t remember that at all”.
In cross-examination she agreed that the two manuals (Exhibit R2 and R3) make no reference to dealing with customers who may have a disability. She further agreed that the McDonalds restaurant to her knowledge had no affirmative action to assist persons with a disability. On 17 August 1997 there were no complaints received by her in relation to the presence of the guide dog with the Applicant. She agreed that all customers have a choice of where they sit at any time but indicated that she was thinking that if children are in the area they may slip on water spilt by the dog and there might be more space outside. She gave evidence that there may be a safety issue in terms of water spilt by the dog. She stated that the only thing she said was that may be on the next visit “You may wish to sit on the other side”. She could not recall raising anything about food being dropped or children picking up the food after it had been near the dog. She doubted that she would have said anything of that kind.
Further in cross-examination she expressed concern about the safety and comfort of the Applicant. She indicated that the Applicant and her friends seemed to imply that they and the dog would not be welcome next time.
The Third Respondent also gave evidence that there was a procedure in place for incidents to be reported but not incidents of this kind. If a customer was not supplied with a correct order then a letter would be sent together with a complimentary card. There was no system in place to record an incident of this kind and to the best of the Third Respondent’s knowledge no follow up in this case.
Christalla Demetrios
Christalla Demetrios is the Second Respondent. She gave evidence for and on behalf of the First Respondent. It is not clear as to why she was named separately as the Second Respondent and no issue was taken at the hearing in relation to that matter.
Ms Demetrios gave evidence that the restaurant opened in June 1996 although training had started in March 1996.
She was in the restaurant five days a week. She had no direct knowledge of the incident though gave evidence that there is some training that she was aware of in the sense that there was a poster in the training office of McDonalds restaurant about guide dogs. Exhibit R4 purported to be a copy of the poster which reads,
“GUIDE-DOGS IN RESTAURANTS
· GUIDE DOGS ARE ALLOWED IN THE PUBLIC AREAS OF THE RESTAURANT WHEN ACCOMPANIED BY THE PERSON THEY ARE ASSISTING.
· UNDER NO CIRCUMSTANCES IS THE DOG ALLOWED IN THE KITCHEN OR FOOD PREPARATION AREA
· IT IS ILLEGAL TO DISCRIMINATE AGAINST IMPAIRED PERSON BY ASKING THEM TO SEPARATE FROM THEIR GUIDE-DOG OR ALLOW THEM AND THEIR GUIDE-DOG ACCESS TO THE PREMISES”.
Under cross-examination she agreed that she would expect the manager on duty to try to diffuse a situation that had arisen as described in the present case. She was aware that an assistant manager had received a telephone call. She identified the assistant manager as Rod Kamphuis.
Ms Demetrios gave evidence that if the Applicant had left the restaurant and felt discriminated then she would not be happy about that.
Submissions on behalf of the Applicant
Mr Burns on behalf of the Applicant argued that the Applicant should succeed in this matter if it could be demonstrated there was a breach of s 5(1) s 9 (1) s 10 s23(1) and/or s 24(1) of the DDA.
He relied heavily on s 9 and s 10 of the DDA and seemed to suggest that a breach of either of those sections would be sufficient to constitute discrimination and lead to the appropriate finding of unlawful discrimination in this matter. He recited the evidence of the Applicant and her witnesses in support of the conclusion that in effect the Applicant had been told that on future occasions she should sit in the outside area rather than in the party area.
It was submitted that if the Court were to find that a conversation occurred whereby it could properly be found that an instruction had been given to the Applicant by the Third Respondent for and on behalf of the First Respondent then that would amount to unlawful discrimination at least in the sense of imposing a term or condition on which McDonalds restaurant was prepared to allow the Applicant access to or use of the premises.
Mr Burns submitted for the Applicant that the comments made by the Third Respondent would not have been made to an able bodied person and that it was the presence of the guide dog that had prompted her to make the approach and the comment.
Mr Burns did not seek any apology though did submit that it was appropriate to award damages and referred the Court to the following Decisions, Jennings v Lee (1996) HREOCA 29 (1 October 1996); Brown v Birss Nominees (1997) HREOCA 54 (1 September 1997); Laurie Grovenor v Eldridge t/a Young Furniture Trading (1999) HREOCA 3 (3 February 1999).
Respondent’s Submissions
Mr Clements on behalf of the Respondents made a preliminary submission that s 46 PO provides for an application to the Federal Magistrates Court alleging, unlawful discrimination, Mr Clements referred to the definition of unlawful discrimination in s 3 of the HREOC Act and notes that it means any acts, omissions or practices that are unlawful under Part 2 of the Disability Discrimination Act 1992. Hence it was submitted by Mr Clements that it is wrong in law for the Respondent to rely upon s 9 of the DDA as that section is found in Part 1 of the DDA and is therefore not part of the definition of unlawful discrimination by virtue of the definition of s 3 of the HREOC Act.
59,Mr Clements referred to s 23 of the DDA and in particular indicated that the Applicant would have to fit under the wording of s 23(1)(a) or (b) or (f). Mr Clements indicated that in the present case the only practical provision was s 23(1)(b) which relates to the terms and conditions on which the Respondent is prepared to allow the Applicant access to or use of the premises.
Mr Clements was critical of the Applicant’s evidence and that of her witnesses. He pointed put that the evidence was vague and at best was misinterpreted. He submitted that it was not a contravention of s 23 (1)(b) to merely make a suggestion as to where the Applicant may sit on her next visit. To constitute the imposition of a term and condition more is needed than a mere suggestion.
Mr Clements referred to the past history where the Applicant had attended the McDonalds restaurant without any obstruction or difficulty at all and noted the Third Respondent’s evidence that she aware of the rights of people with guide dogs and was aware of her obligations which makes it more likely she would only make a suggestion rather than impose a term and condition.
62,In relation to compensation Mr Clements referred to the same authorities which had been relied upon by Mr Burns though indicated that those cases were far more dramatic in terms of refusal to allow the Applicants to remain in the premises. Mr Clements notes that in assessing damages it is relevant to take into account that there has been no referral for any specialist treatment and/or continuing medication as a consequence of the incident he submitted a more appropriate range of damages was $1000 to $2000.
The Law
Relevant Legislation
Human Rights and Equal Opportunity Act
S 3unlawful discrimination means any acts, omissions or practices that are unlawful under
(a)Part 2 of the Disability Discrimination Act 1992.
S 46PO Application to court if complaint is terminated
(1)If:
(a)a complaint has been terminated by the President under section 46PE or 46PH; and
(b)the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(2)…..
(3)….
(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re‑employ an applicant;
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter.
Disability Discrimination Act
S 4 Discriminate has the meaning given by s 5 to s 9 (inclusive)
S 5Disability discrimination
(1)For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2)For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
S 9Disability discrimination—guide dogs, hearing assistance dogs and trained animals
(1)For the purposes of this Act, a person (discriminator) discriminates against a person with:
(a)a visual disability; or
(b)a hearing disability; or
(c)any other disability;
(aggrieved person) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses, or is accompanied by:
(d)a guide dog; or
(e)a dog trained to assist the aggrieved person in activities where hearing is required, or because of any matter related to that fact; or
(f)any other animal trained to assist the aggrieved person to alleviate the effect of the disability, or because of any matter related to that fact;
whether or not it is the discriminator’s practice to treat less favourably any person who possesses, or is accompanied by, a dog or any other animal.
(2)Subsection (1) does not affect the liability of a person with a disability for damage to property caused by a dog or other animal trained to assist the person to alleviate the effect of the disability or because of any matter related to that fact.
S 23Access to premises
(1)It is unlawful for a person to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a)by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b)in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
(c)in relation to the provision of means of access to such premises; or
(d)by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e)in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or
(f)by requiring the other person to leave such premises or cease to use such facilities.
(2)This section does not render it unlawful to discriminate against a person on the ground of the person’s disability in relation to the provision of access to premises if:
(a)the premises are so designed or constructed as to be inaccessible to a person with a disability; and
(b)any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.
S 24 Goods, services and facilities
(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability or a disability or that other person’s associates:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2)This section does not render it unlawful to discriminate against a person on the ground of the person’s disability, if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.
Although I accept that this Court as a consequence of the definition of “unlawful discrimination” in s 3 of HREOC Act is required to consider acts, omissions or practices that are unlawful under Part 2 of the DDA, it is also appropriate to note that the definition of `discriminate’ in s 4 of the DDA Act has the meaning given by s 5 to s 9 of that Act.
Hence the gateway to s 5 to s 9 of the DDA Act is provided by the definition of `discriminate’ under that Act and it is appropriate to consider in particular s 9 in order to understand what is meant by discriminate pursuant to s 23 of the DDA Act.
In the present case I am satisfied that the relevant statutory provisions under the DDA Act apart from the definitions to which I have referred are s 9 and s23 (1)(b), s 23 (1)(e) and possibly s 24(1).
Essentially this application relates to an allegation that the Third Respondent for and on behalf of the First Respondent had discriminated against the Applicant on the grounds of the Applicant’s disability in the terms and conditions on which the Third Respondent for and on behalf of the First Respondent was prepared to allow the Applicant access to or use of the McDonalds restaurant. It may be arguable that the alleged restriction sought to be imposed upon the Applicant in relation to the party area constitutes a breach of s 23 (1)(e) in the sense that it could be established that the Third Respondent for and on behalf of the First Respondent imposed terms and conditions on which the Applicant was allowed to use the facilities namely the party area.
This is not a case where the Respondents have refused to allow the Applicant access to or use of the premises or indeed required her to leave the premises as the agreed evidence is that the Applicant had already completed her meal and was about to leave. The real issue is whether the words uttered can be interpreted as imposing terms and conditions which would constitute unlawful discrimination.
In my opinion the imposition of terms and conditions for the purpose of s 23 of the DDA does not have to be in writing or in precise language. So long as the words uttered are capable of meaning and were understood to mean that the Applicant would only be allowed access to the premises in a restricted manner and/or use of the facilities in a restricted manner then in my view that is sufficient to constitute a breach of the legislation.
Findings of Fact
Having observed the witnesses give evidence I am satisfied that on the balance of probabilities a conversation took place between the Third Respondent, the Applicant and her friends.
I am satisfied that the conversation essentially occurred in the manner described by the Applicant and to some extent corroborated by her witnesses namely that she was advised that on her next visit she should sit outside near the tap with the dog just inside the doorway. I am further satisfied that the Third Respondent said something to the Applicant in relation to children dropping food and problems which may be associated with that and the presence of the dog.
In one sense there is not a great deal of difference between the competing versions of the conversation to the extent that at the very least a suggestion was made that the Applicant should sit in another area of the premises.
It is noted that such a suggestion would not have been made to a person without a disability or a guide dog.
It is difficult to assess the accuracy of evidence of all witnesses in this matter having regard to the fact that the conversation occurred some three years ago. To some extent I am comforted by the fact that the Applicant’s evidence was corroborated, in part, by at least two of three lay witnesses called for and on her behalf namely Ms Melville and Ms Tapscott.
It is also clear to me that in the circumstances there has been little or no appropriate training given to the Third Respondent by her employer in relation to the rights of disabled persons. Had the Third Respondent been aware of the legislation and the fact that it is unlawful to impose terms and conditions on which the Applicant is required to allow persons with a disability access to or use of the premises then I have little doubt that this unfortunate incident would not have occurred.
I am satisfied however that the incident occurred in the manner described by the Applicant and her witnesses and that as a consequence she has been greatly affected at least to the extent that she has not revisited as a customer a McDonalds restaurant since the date of the incident.
I find as a matter of fact that at all material times the Third Respondent was acting for and on behalf of the First Respondent.
I find that prior to August 1997 the McDonalds restaurant did not have any or any adequate training for staff required to deal with persons under a disability. I have little doubt that proper training and instruction in the circumstances would have avoided what became an unpleasant incident compounded by the fact that there was no apology at any time.
Whilst I prefer the evidence of the Applicant and her witnesses in relation to the conversation and have found that the Applicant was told something like, “It would be better if the guide dog was outside, if he sat outside or just in the doorway” it does not mean that I rejected the Third Respondent’s evidence entirely. I found the Third Respondent to be a truthful witness who was doing the best to recollect events of many years ago in circumstances where there was no formal reporting system in place which would have enabled her to make an accurate contemporaneous notes of the events. It would have been helpful if a contemporaneous record was kept of an incident of this kind and it is somewhat surprising that at the same time records are kept concerning complaints about the delivery of food but no system was in place to record serious incidents of the type which has formed the basis of this application.
In my view it is not necessary to establish that the words uttered by the Third Respondent were intended to be discriminatory to constitute unlawful discrimination. It is sufficient that the words uttered were understood to mean and were capable of meaning that a term and condition had been imposed by the Third Respondent for and on behalf of the First Respondent as to the access to or use of the premises by the Applicant in future. I find that those words constitute unlawful discrimination and treat the Applicant less favourably because she was accompanied by a guide dog.
I am strengthened by my finding of fact by the further evidence of the degree and level of upset experienced by the Applicant since the incident.
The Applicant further denied and I accept her evidence in this regard that she was simply told that you might want to sit on the other side of the fence and you will not have to worry about children upsetting your dog or the dog’s bowl. Not surprisingly it was difficult for both Counsel to put to witnesses the gist of the conversation in this matter and as noted earlier no reference was made to the issue of the tap during the course of cross examination of the Applicant and her witnesses. Nevertheless I find that even if reference had been made to the tap then that reference would further support the conclusion I have reached that a firm indication was given to the Applicant that next time she should sit outside in an area which I find at the time was exposed to the wind elements. This restriction would not have been placed on a person without a disability unaccompanied by a guide dog.
Accordingly I find that there has been unlawful discrimination pursuant to s 23 and/or s 24 of the DDA and in particular the Third Respondent for and on behalf of the First Respondent has breached s 23 (1)(b).
Relief
The only relief sought in this matter is damages. On the available evidence it is appropriate to award compensation by way of damages in this case.
The cases to which I have been referred provide limited guidance as to the range of damages which may be awarded. I do not regard those cases as providing a range of damages in all the circumstances as there appear to be inconsistencies in the outcomes in those cases having regard to the impact of the unlawful discrimination upon the Applicants. I note for example in the Jennings Decision $3000 compensation was awarded where there had been an unqualified and unreserved apology at hearing and the conduct of the Respondent had left the Applicant devastated and reluctant to go out socially. The incident was a significant factor in the Applicant’s decision in that case to return her guide dog. In the matter of Grovenor the amount of $1000 was awarded by way of compensation for injured feelings, distress and embarrassment in circumstances where the Applicant had not set foot in the township of Young since the unlawful discrimination incident and had required some informal counselling.
In the Brown case an amount of $1000 damages was awarded to Mr Brown who had been denied access to a caravan park and gave evidence that he was apprehensive about further travel as a result of the events.
Each of the cases to which I have referred provide some guidance but in my view do not in any way constitute a range of damages which are appropriate in cases of this kind.
In the present case I am satisfied that for the past three years the Applicant has avoided attending McDonalds restaurant. She had previously attended the only McDonalds restaurant in Leongatha on approximately 20 occasions which would mean that she was regular visitor almost from the time the restaurant opened in that township.
During her evidence the Applicant became visibly upset when referring to McDonalds restaurant and I accept her evidence that it is difficult for her to attend McDonalds restaurant again in the future and that she has difficulty even staying in a room where advertisements appear for McDonalds restaurant on television.
I accept that she has not required specific medical treatment and/or referral for anxiety or depression though note that her medical practitioner has indicated that the Applicant continues to think about the incident and that the action has “caused her to have diminished self worth”. In the circumstances where unlawful discrimination has led to denial to a disabled person of a simple pleasure of attending a restaurant with a group of friends after church on Sunday and where the effect of that unlawful discrimination has continued for three years after the incident then despite the absence of medical treatment it is a significant matter. In my view it is important to make due allowance in damages where a disabled person has suffered “diminished self worth” as confirmed in this application by Dr Linton’s report.
Conclusion
Doing the best I can on the material available to me it is my view that the Applicant should be awarded compensation in the sum of $3000 by way of damages for injured feelings, the distress and embarrassment caused by the Third Respondent’s conduct for and on behalf of the First Respondent.
At the end of the hearing I stated that I would hear submissions in relation to the question of costs.
Both Counsel indicated a preference to consider the Reasons for Decision before making final submissions on the costs question and accordingly that issue will be decided after the parties have been given an appropriate opportunity to make submissions.
Formal orders will be made after submissions have been received and the issue of costs determined.
I certify that the preceding ninety-three (93) paragraphs constitute a true copy of the Reasons for Judgment of McInnis FM.
Associate:
Dated: 23rd October 2000
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