Livermore v The New Children's Hospital Westmead

[2002] NSWADT 111

CITATION:	Livermore & Anor -v- The New Children's Hospital Westmead [2002] NSWADT 111
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Duane Livermore Sharon Livermore
FILE NUMBER:	001082
HEARING DATES:	23/04/2002, 24/04/2002
SUBMISSIONS CLOSED:	04/24/2002
DATE OF DECISION:	06/28/2002
BEFORE:	Gormly P - Judicial Member; Antonios Z - Member; Mooney L - Member
APPLICATION:	Race Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANTS In person RESPONDENTS C Ronalds, barrister
ORDERS:	No breach of s7 or s19 of the Anti-Discrimination Act was established.

Introduction
1 This is an application for a declaration that the Respondent breached s7 and s19 of the Anti-Discrimination Act 1977.

2 Relief sought:

(i) A formal apology from the Respondent for the manner in which the Applicants were treated;

(ii) An assurance from the Respondent that guidelines have been put in place to ensure that no other Aboriginal people can be treated as they were;

(iii) Damages;

(iv) Such other relief as the Tribunal sees fit.

Legislative provisions
3 S7 of the Anti-Discrimination Act 1977 (‘the Act’) provides:
7(1) “A person (“the perpetrator”) discriminates against another person (‘the aggrieved person’) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has a relative or associate of a different race; or

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race comply or are able to comply, being a requirement which is not reasonable, having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

7(2) For the purposes of subsection (1)(a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

S19 It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms of which the other person is provided with those goods or services

Evidence
4 The documentary evidence in this matter included:
Applicants: Exhibit 1 Statement of Duane Livermore (undated)
Exhibit 2 President of Anti-Discrimination Board’s Report dated 28 November 2000

Exhibit 3 Statement of Sharon Livermore (undated) reviewed 23 April 2002

The Points of Claim and letter from Kevin Byrnes dated 8 November 2001 which clarifies and adds to the points of claim. These two documents should be read together.

Respondents: Exhibit A Letter from GIO to Kevin Byrnes dated 18 October 2001 and response dated 8 November 2001
Exhibit B Bundle of documents relating to educational/work background of Mr Duane Livermore

Exhibit C Statement of Dr Julian Wotjulenicz filed 25 March 2002

Exhibit D Statement of Ms Lynne Waterworth 4 April 2002

Exhibit E Statement of Ms Katie Elder 21 March 2002

Exhibit F Medical records of Gabriella Livermore

History
5 Sharon and Duane Livermore are the parents of Gabriella Livermore born 2 November 1995 and sadly died 26 November 1995. It is the circumstances during the baby’s care prior to her death which give rise to this complaint of racial discrimination. It was the Applicants’ submission that on the basis of difference of appearance between Mrs Livermore and Mr Livermore, Mr Livermore was treated differently and less favourably. Mrs Livermore’s appearance is Caucasian and Mr Livermore is Aboriginal.

6 According to the medical notes Gabrielle was born on 2 November 1995 at Port Macquarie Base Hospital. She was diagnosed with Downs Syndrome both clinically and with a blood test. The condition was complicated by several associated problems. She was discharged aged 5 days.

7 When Gabriella was 2.5 weeks old she was readmitted to this hospital with unwellness, reluctance to feed and abdominal extension. On 22 November 1995 at 1730 hours she was transferred to New Children’s Hospital for further management. Her condition was critical and her prognosis was poor on arrival at the New Children’s Hospital Westmead, the Respondent.

8 Dr Wojtulewicz was involved in treating Gabriella during her period at the New Children’s Hospital between 22 November 1995 and 26 November 1995. It was his evidence that he had a good recollection of Gabriella and the events surrounding her care and treatment because her condition was so critical. When cross examined by Mr Livermore the doctor explained that the problems Gabriella suffered from can occur very quickly and cause a baby’s condition to deteriorate very rapidly. He compared the rapidity of the deterioration to “ being hit by a truck” and that in this case delay was not a relevant factor.

9 When Gabriella was transferred to Sydney Mr and Mrs Livermore came down to Sydney with three of their other children. They were provided with accommodation by the New Children’s Hospital. Mr Livermore is dark skinned and an Aboriginal. He is well spoken and articulate. Mrs Livermore is white skinned and Caucasian by appearance. She adopts Aboriginal culture and considers herself Aboriginal but concedes that people without prior knowledge of this would assume she is Caucasian. There is no need to consider the question of her Aboriginality because her claim for discrimination can be made from her association with Mr Livermore.

10 There is no dispute that Gabriella was in a critical condition on her arrival. The treating doctors decided that she was not well enough to cope with an operative procedure immediately. However they decided a window of opportunity arose and she was operated on at 1430 hours on 23.11.95. Mrs Livermore gave evidence that it was through her insistence that the operation was performed. Dr Wojtulewicz gave definitive evidence that without the procedure Gabriella would not have survived but there was no assurance that the surgery would save her. Gabriella remained on life support after the operation.

11 The treating staff had numerous discussions with Mr and Mrs Livermore over the four day period concerning Gabriella’s treatment. It was not in issue that during these conversations both parents were present.

12 When it became clear that Gabriella would not survive Dr Wojtulewicz gave the parents the option of turning off the machine. Mr and Mrs Livermore refused this option. It was Mrs Livermores’ evidence that they were pressured into turning off the life support by numerous members of staff. Mr Livermore said that the doctors made a number of requests for the removal of life support. He added that these requests were directed to Sharon rather than himself. Dr Wojtulewicz evidence was that it is necessary to give parents this option because failure to do so would deprive some parents of their rights to turn off the machines.

13 When they first arrived at the Hospital Mr and Mrs Livermore had dealings with the Aboriginal Liaison Officer Ms Rita Williams. Ms Williams was available to the Livermores for the beginning and the end of Gabriella’s time in hospital. However she went on leave during the middle critical period when decisions had to be made regarding Gabriella’s care. No alternate ALO was made available and it was the Applicant’s claim that this failure to provide an ALO for the entire period was an act of racial discrimination.

14 The Livermore’s evidence was that they unsuccessfully attempted to contact a priest at the Hospital Chapel. They then contacted a priest known to them who was independent of the hospital. The Hospital’s evidence was that the Hospital has numerous priests available 24 hours a day.

15 With regard the evidence of Katie Elder and Lynne Waterworth the Tribunal found their evidence was of limited use with regard the issues before it because their responsibility was in caring for Gabriella and neither person had any contact of significance with the parents.

Findings
16 The standing of the Applicants It was submitted by the Respondent that the true complainant was Mr Livermore and that Mrs Livermore was a secondary complainant by association. It was submitted that on those grounds the success of the associated claim is dependent on the primary claim succeeding. This submission is rejected. For the purposes of s7(1) of the Act an aggrieved person is one who is discriminated against on the grounds of the race of the aggrieved person or on the grounds of the race of an associate of the aggrieved person. Mrs Livermore can be directly discriminated against by her association with Mr Livermore. There is no requirement that Mr Livermore be discriminated against as well. The section makes the focus of the discrimination the critical issue.

17 Diagnosis of Gabriella’s Downs Syndrome Mrs Livermore gave evidence that she doubted a diagnostic blood test had been done properly on Gabriella, and whether it had been done at all. She came to this conclusion using her past experience in dealing with Downs Syndrome people from many years ago and that the results to the blood test came back very quickly. Dr Wojtulewicz gave evidence that the test for Down Syndrome could be performed very quickly. The Tribunal finds that the child was correctly diagnosed with Downs Syndrome using clinical methods and a blood test.

18 Failure to provide a priest The Tribunal finds that Mr and Mrs Livermore may well have gone to the Chapel at the Hospital to find a priest and were unsuccessful and they may well have told someone on staff that they wanted a priest. It was the Respondent’s evidence that there were numerous priests on call 24 hours per day. The Tribunal finds that had the Livermores really wanted a priest from the Hospital that they would have done more than attend a hospital chapel which is likely to be unattended for much of each day. In any event there is no obligation on the Hospital to provide a priest and the issue had no relevance to the race of the Applicants.

19 Failure to provide an Aboriginal Liaison Officer for the entire period It was agreed by both parties that no liaison officer was provided during the middle period of Gabriella’s illness which was the period of greatest strain for the parents. It is clear to the Tribunal that provision of this service may well have been of great assistance to the family during this difficult period. However the question before this Tribunal is whether failure to provide that service during that middle period constitutes discrimination based on race under the Anti-Discrimination Act 1977.

20 It is the Tribunal’s finding that the service was not provided to the Livermore’s because the Hospital did not have a replacement while the Liaison Officer was on leave. This does not constitute discrimination for the purposes of the Act. There is no compulsion under the Act for the Hospital to provide the ALO at all. The fact that it did and subsequently failed to provide a replacement is not discriminatory behaviour on the grounds of race. This part of the application fails.

21 Language barrier. It was alleged in the Application that both Mr and Mrs Livermore were discriminated against because the Hospital failed to take into consideration the language barrier between the Applicants and the Hospital. Mr Livermore gave evidence that his only language was English. Clearly no barrier existed with him. With regard Mrs Livermore, it is the Tribunal’s finding that Mrs Livermore is fluent in English and regardless of her capacity to speak any of the Aboriginal dialects, she clearly had a sound knowledge of English regardless of the pressures placed on her.

22 It was asserted that the Hospital should have been alerted to the alleged language difficulty. This is also rejected by the Tribunal. In the event that there is a language problem that is not apparent, by necessity the onus must be on the people with the difficulty to alert the Hospital of the barrier. No evidence was provided to the tribunal that the staff of the hospital were made aware of a language barrier. The Hospital witnesses gave evidence that there was no warning given within their knowledge and none of the witnesses recognised a language problem. This part of the application fails.

23 The assertions made by Mrs Livermore with regard both her and Mr Livermore’s language difficulties caused the Tribunal to have doubts about Mrs Livermore’s credibility. Her evidence with regard Mr Livermore’s language problems and his own evidence which was that English was his only language was in direct conflict. The Tribunal accepted the evidence of Mr Livermore in that regard.The Tribunal also found that Mrs Livermore had a tendency to exaggerate her own language difficulties and found that she was able to give evidence quite fluently in English.

24 Failure/reluctance of the Hospital to address Mr Livermore It was alleged by Mr and Mrs Livermore that the Hospital staff were reluctant to address Mr Livermore because of his Aboriginality. Mr and Mrs Livermore gave evidence that the staff would address Mrs Livermore in preference to Mr Livermore and that the Aboriginal culture required the man of the family to deal with major questions relating to the family. This would then be related back to the family so that each member can have some input in the decision making process.

25 The claim was that by the Hospital showing preference to Mrs Livermore, Mr Livermore was humiliated and shamed within his cultural frame work. Mrs Livermore claimed she also suffered from the effects on herself, her family and Mr Livermore.

26 Dr Wojlewicz gave evidence that he had numerous conversations with both parents present and that he was prepared to answer any questions raised by either parent. Mr Livermore’s oral evidence was that he felt he could ask any question he wanted regarding Gabriella but he chose not to ask questions.

27 Mrs Livermore who was clearly the more vocal of the partners gave evidence that this was not so during the period in hospital. The Tribunal prefers the evidence of both Mr Livermore and Dr Wojtulewicz who said that Mrs Livermore was the more assertive of the two at the relevant times.

28 To show discrimination on the grounds of race the onus is on the Applicants to show that the aggrieved person has been treated ‘less favourably‘. It is not less favourable treatment to speak to the more assertive person and/or the mother of a new born. The treatment must be looked at from an objective view rather than how the Applicants would like to have been treated. What constitutes discrimination is where the treatment received by the aggrieved person is different or less favourable than treatment given to others. In this case the treatment received by the Livermores is treatment that would be given to all couples that come in with a critically ill baby.

29 There was no evidence to support a finding that there was a breach of the Anti-Discrimination legislation on the grounds of race.

30 That the three children were accommodated separately to their parent caused some serious distress and was one of the complaints before this Tribunal. This point was not pursued at the hearing. While recognising the added stress this would have placed on the family on the evidence before the Tribunal it is difficult to see how discrimination could be made out within the meaning of the Act.

31 The Tribunal makes the following orders:

No discrimination on the grounds of race was made out pursuant to the Anti-Discrimination Act 1977 s7 or s19.