Loveday v Blacktown City Council
[2004] NSWADT 60
•03/26/2004
CITATION: Loveday -v- Blacktown City Council & ors [2004] NSWADT 60 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Sam Loveday
RESPONDENTS
1. Blactown City Council
2. Harness Racing New South Wales
3. Riverstone District Trotting Track CommitteeFILE NUMBER: 021085 HEARING DATES: 14 & 15/08/2003; 17/11/2003 SUBMISSIONS CLOSED: 11/17/2003 DATE OF DECISION:
03/26/2004BEFORE: Needham J - Judicial Member; McDonald O - Member; Nemeth de Bikal L - Member APPLICATION: Disability Discrimination - Goods and Services MATTER FOR DECISION: Principal matter LEGISLATION CITED: Anti-Discrimination Act 1977
Harness Racing New South Wales Act 1977CASES CITED: Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5
Walker -v- State of NSW, [2003] NSWADT 13REPRESENTATION: APPLICANT
In person
RESPONDENTS
1. & 3. - M Bonanno, solicitor
2. - D English, solicitorORDERS: 1. The applicant's complaint is dismissed; 2. Pursuant to s114 (1) Anti-Discrimination Act 1977, no order as to costs.
REASONS FOR DECISION
Introduction
1 Mr Sam Loveday, the applicant in these proceedings, complained to the Anti-Discrimination Board on 5 April 2001 alleging discrimination on the grounds of his disability. Mr Loveday suffers from retinitis pigmentosa, a condition which causes him “intense glare from daylight due to an abnormal interaction between the photoreceptors and the retina … His eye protection requires a broad brimmed hat … as he is unable to wear dark glasses because of his condition” (Ex G, letter 18 December 2002 from Professor Billson, Professor of Ophthalmology, to solicitors for Harness Racing New South Wales). He has had part of his iris removed for melanoma, and has “symptoms of intractable glare” (Ex B, letter Dr Max Conway, Department of Clinical Ophthalmology and Eye Health, University of Sydney, 7 November 2000).
2 The respondents to the complaint are:
3 The Acting President of the Anti-Discrimination Board was unable to resolve the complaint and referred the matter to the Administrative Decisions Tribunal on 19 July 2002. The matter was heard over three days on 14 and 15 August 2003 and on 17 November 2003.
a) Blacktown City Council (“the Council”) and the Riverstone District Trotting Track Committee (“the Committee”). The Committee is a Committee of the Council pursuant to s 355 of the Local Government Act , 1993, and the two parties were represented at the hearing by Mr Bonanno.
b) Harness Racing New South Wales, the governing body for pacing and trotting in New South Wales. Harness Racing New South Wales is a body corporate constituted by s 5(1) of the Harness Racing New South Wales Act 1977 and it was represented at the hearing by Mr English. Harness Racing New South Wales was referred to during the hearing, and will be referred to in this decision, as “the Authority”.
4 Mr Loveday’s complaint seeks to achieve his goal of being able to train horses as a stablehand. A stablehand needs to be licensed, and has been so required to be licensed since 1986/7. The Authority puts the need for a licence as being:
5 Mrs Loveday is a licensed trainer, and Mr Loveday wishes to be able to be her stablehand. He is unable to obtain a licence as things currently stand as he does not comply with the requirement to wear an approved safety helmet when driving horses. He says he cannot do so, since his eye condition requires he wears a broad-brimmed hat, and that the insistence on his wearing such a helmet amounts to unlawful discrimination.
“to ensure appropriate (insurance) cover for compensation in the event of injury or accident and to ensure compliance with the Rules of Harness Racing.”
Legislation
6 Mr Loveday has a disability within the meaning of s 4 of the Anti-Discrimination Act, 1977 (“the Act”). He alleges that he has been discriminated against within the meaning of sub-s 49B(1)(a) of the Act in that he was treated:
7 The Council and the Committee, in providing the track for the use of those involved in the harness racing industry, provide “goods and services” within the meaning of s 49M of the Act. Sub-s 49M(1) provides:
This has been referred to in the cases as “direct discrimination”. He also alleges that he has been subject to “indirect discrimination, in that, pursuant to sub-s 49B(1)(b) of the Act, he is required to:
“less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability”.
“comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability … 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” (“indirect discrimination”).
8 Subsection (2) of s 49M provides an exception, to the effect that:
“It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:
(a) by refusing to provide the person with those goods or services; or
(b) in the terms on which he or she provides the person with those goods or services”.
9 The Authority, in licensing persons to carry out functions within the harness racing industry, is a “qualifying body” within the meaning of s 49J of the Act. Sub-s 49J(1) provides:
“Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services”.
10 Sub-section 49J(2) provides an exception, to the effect that:
“It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of disability:
(a) by refusing or failing to confer, renew or extend the authorisation or qualification …”.
Facts
“Nothing in subsection(1)(a) or (c) renders unlawful discrimination by an authority or body against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular profession, trade or occupation and, if the person is already a member of the particular profession, carrying on the trade or engaged in the occupation, the person’s performance in the profession trade or occupation, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability would be unable to carry out the inherent requirements of the profession, trade or occupation”.
11 Mr Loveday has been involved with horses and more particularly with the harness racing industry all his life. He gave evidence of his long involvement with training of standard bred horses (the breed used in harness racing) and the Riverstone District trotting track since he was at least seven years of age. His wife, Maree Loveday, obtained a trainer’s licence in 1980 and raced horses with some success. Mr Loveday’s involvement in his wife’s training was significant and he used the Riverstone track as the venue for the horses he assisted in training for his wife.
12 Mr Loveday has never held a licence, either to train or to be a stablehand. Until recently and except as detailed below, he has never applied for a licence, since he says he was told on a number of occasions that he would not be granted such a licence if he did not wear an approved helmet. A “Stablehands Licence” is provided for by rule 90A(3) of the Rules of Harness Racing and licenses a holder:
13 Despite being unlicensed, Mr Loveday has for a long period of time worked and exercised horses at the track. Indeed, Mr Burgan, the President of the Committee, thought, up to making enquiries of the Authority in about late 1999 or early 2000, that Mr Loveday was licensed. After Mr Burgan’s election as President, what was referred to in the evidence as a “crackdown” was undertaken in enforcing the requirements of the Rules of Harness Racing that persons using the track be licensed, and that helmets and vests be worn. Mr Loveday says that he does not wear a helmet because of his eyesight, and that many other persons before the crackdown did not wear helmets. He says that he never “refused” to wear a helmet, but concedes that he has not complied with requests to do so, because of his eyesight.
“(3.4) … under the supervision or instructions of a licensed trainer, to:-
(a) carry out trackwork;
(b) assist with the training, management, care and control of horses;
(c) assist with pre-race preparation of, and post-race procedures affecting, a horse”.
14 Mr Burgan attempted to persuade Mr Loveday to wear a helmet. He then discovered that Mr Loveday was unlicensed, and invoked the assistance of the Authority in enforcing the Rules of Harness Racing in relation to Mr Loveday. He gave evidence that he met with Mr Nebauer, the Chairman of Stewards of the Authority, and was directed not to let anyone who was not licensed, or who was not wearing a helmet, use the track.
15 Mr Burgan gave evidence of his repeated conversations with Mr Loveday in relation to his helmet and his licence. On 5 November 2000 the Committee resolved, at its Annual General Meeting, to bar Mr Loveday from training horses at the track. By letter of 9 November 2000, the Committee informed Mr Loveday:
16 Mr Nebauer, Chairman of Stewards of the Authority, wrote to Mr Loveday on 15 November 2000 as follows:
“… the bar applied forthwith from Sunday 5 November and will remain until such time as you become properly licensed and give an undertaking in writing that you are prepared to abide by Harness Racing Authority rules and those of the Blacktown Council and the Committee. This includes the wearing of an approved helmet whilst training horses”. (emphasis in original)
17 It appears to the Tribunal that the intention of rule 159A is to apply to the attire of drivers in races, as can be seen by the requirements of colour of dress (including coloured jackets and white trousers) and that it be “clean and tidy” – neither requirements which are likely to apply to training or exercising horses on a registered track. However, the Rules of Harness Racing include rules 223-4, which provide:
Rule 159A reads, relevantly, as follows:
“It has come to my attention that you may be carrying out track work while not licensed to do so pursuant to the Rules of Harness Racing. I remind you that it is an offence to do so and hereby formally direct you to cease any such activity forthwith.
It has also been drawn to my attention that you may be conducting track work while not wearing a helmet as prescribed by rule 159A of the Rules of Harness Racing. I remind you that this is also an offence.
Should you wish to make application for the appropriate licence, any application for exemption from the wearing of a helmet will need to accompany that application and be supported by medical evidence. You should not take this advice as an indication that any application for an exemption can or will be considered”.
“(1) A driver shall wear a helmet which meets Australian Standards Association Standard 1698 or 2063.3 or is approved by the Snell Foundation (1984 Snell “H” Standard”) or the US Department of Transportation Standard 21 and the brand name of which has been approved and entered in the Register of Approved Helmets kept by the Australian Harness Racing Council.
(2) A driver shall at all times when driving a horse keep his or her helmet correctly fastened”.
18 Although it does not matter for the purposes of these proceedings, it does appear to the Tribunal that the more appropriate section to be cited in relation to Mr Loveday’s conduct would have been rule 224.
“Horse” is defined in the Dictionary of the Rules of Harness Racing as:
“223. A person when engaged in any activity relating to the care, control, training or management of a horse shall wear adequate footwear, clothing and other protective bodily coverings.
224. A person when engaged in driving or riding a horse shall wear, correctly fastened, a helmet approved under these rules”.
““ Horse” means a horse bred, cared for, managed, trained, raced or otherwise dealt with for purposes connected with the harness racing industry”.
19 On 22 November 2000, Mr Loveday, in breach of the bar notified to him on 9 November 2000, entered the Riverstone Track and exercised a horse. He was not wearing a helmet while he did so. The police were called, and Mr Burgan’s evidence to the police was that Mr Loveday had been exercising or training his horses there on a number of occasions before the 22nd in breach of the bar (see statement of Daniel Burgan, 22 November 2000, Ex B). Mr Loveday was charged with trespass.
20 The Authority notified Mr Loveday on 12 December 2000 that “an official Inquiry into your activities at the Riverstone Track” would be conducted on 8 January 2001.
21 The Stewards Report was issued on 8 January 2001. It reads as follows:
22 The disqualification had the effect of removing Mr Loveday’s right to be a licensed owner (p 2, decision of Perrignon DCJ, Harness Racing Appeals Tribunal, Ex B).
“The Stewards interviewed registered owner Mr Sam Loveday regarding his activities at the Riverstone Training Track. The evidence revealed that Mr Loveday has regularly over an extended period of time conducted training activities with horses owned by himself whilst being unlicensed. He explained that he had previously verbally sought a licence but due to a disability he had not officially applied, as he believed an application would have been unsuccessful.
Also, evidence was taken from Steward Mr Darren Miller who had attended the Riverstone Track on 23rd November 2000 and his subsequent report was placed in evidence, which confirmed Mr Loveday working a horse and also failing to obey an instruction to leave the track.
Subsequently the Stewards issued a charge under rule 91(a) (sic – 91(1)(a)) which relates to carrying on an activity without a current licence to which he entered no plea however a not guilty plea was entered on his behalf. Mr Loveday was found to be in breach of the Rule and the Steward subsequently disqualified him for a period of 12 months”.
23 Mr Loveday appealed to the Harness Racing Appeals Tribunal, constituted by Judge Perrignon and Assessors Mr Garvey and Mr Russell. The appeal was held on 21 February 2001. The decision is dated 7 March 2001.
24 Judge Perrignon dealt with what became an issue in these proceedings – whether the Authority had any jurisdiction over the track at Riverstone. In essence, Mr Loveday says that because the track was not registered with Harness Racing NSW in November 2000, the Authority had no authority to send in its stewards and to charge him and eventually disqualify him. More will be said on this below. For the purpose of the narrative of facts, it is sufficient to note that Judge Perrignon held that:
25 Judge Perrignon considered the evidence and found that:
“there is no doubt that in actual fact Harness Racing New South Wales has had the authority to supervise activities on the Riverstone harness racing and training track and would enforce its rules – in regard, for example, to the wearing of safety helmets by persons when training horses on the track”.
26 It is clear that Judge Perrignon was sympathetic to Mr Loveday in that he said, at page 4 of the judgment:
“it has been established that the Appellant, by refusing to wear a safety helmet, has placed himself in a position of having no licence to train. This is an activity regulated by licence. Consequently, the breach alleged is established”.
27 His Honour took the view, at p 5, that:
“… the Tribunal proposes to take some steps which are designed to assist in resolving the Appellant’s difficulties.
… it is proposed to give the Appellant an opportunity to make a proper application to Harness Racing NSW for a driver’s and trainer’s licence or a stablehand’s licence. He would be required, and expected, to make an honest and proper endeavour to present a fully informed application for any of such licences.
… To achieve these purposes, which are in effect to give recognition to the limitations which the Appellant has, the Tribunal proposes to vary the disqualification imposed upon him by the stewards at their inquiry, on condition that, on the lifting of the disqualification which will occur after two months from this date, the Appellant makes an application for a licence as a driver or trainer of stablehand. If he refuses, the disqualification will be resumed and the Appellant will be left in the position in which he now stands”.
28 Mr and Mrs Loveday each gave evidence that they took some steps to source helmets that could be modified to suit Mr Loveday. They went to two branches of Horselands, in East and in North Richmond, and made enquiries of the sales personnel. They telephoned Westmead Hospital. They emerged from those enquiries convinced that the modification could not be achieved.
“the wearing of a helmet is not inconsistent with the wearing of a normal hat, and it seems that a normal hat can be modified in order to accommodate the wearing of a safety helmet”.
29 On 30 April 2001 Mr Loveday applied for a licence in accordance with Judge Perrignon’s recommendation. The Authority wrote to him on 8 May 2001 requiring him to appear at a licensing interview on 15 May 2001. The interview was actually conducted on 22 May 2001, before Mr Bottle (Deputy Chairman of Stewards, and Chairman of the interview), Mr Collins (Registrar) and Mr Flower (Stipendiary Steward). Mr Loveday was told that he was to make further enquiries about finding a solution to a helmet that dealt with his eye problem. At page 17 of the transcript of the Interview, Mr Bottle said to him:
30 It is unclear on the evidence what happened to that application for a licence, but it appears that the situation may have been left in abeyance, with the disqualification having been lifted, in order to allow Mr Loveday to take up some of the suggestions of the stewards in relation to finding a solution for modifying a helmet to suit his needs.
“You could have a helmet of some kind that you are happy with and we are happy with. Once that happens, we are only too willing to sign the approval for your licence.”
31 On 19 March 2001, Mr Nebauer wrote to the Police at Riverstone, attention Constable Soames, confirming that “Mr Sam Loveday does not hold a licence with Harness Racing NSW and is therefore in breach of [rule 91(1)]”. Rule 91(1) provides:
32 In his evidence, Mr Nebauer said that he did so on the request of the police, confirming the breach of the Rules of Harness Racing.
“A person shall not carry on an activity regulated by licence -
(a) if that person is not the holder of a current licence;
(b) if the person’s licence is suspended; or
(c) except in accordance with the terms and conditions of the licence”.
33 On 10 September 2001, the police matter was heard, and Mr Loveday was convicted of an offence of Enter Inclosed Lands without Lawful Excuse, Not Prescribed Premises (ie, trespass on the Riverstone Track). He was placed on a bond for six months and required to comply “strictly with the resolution posed (sic) by the Committee and embodied in the letter dated 9/11/00”.
34 On 5 October 2001 Mr Loveday again applied for a stablehand’s licence, listing his wife as his employer. Mr Collins, the Registrar of the Authority, wrote to Mr Loveday referring to the interview and the discussions of safety helmet modifications, and saying “we would be pleased if you would advise of what steps you have now taken to enable you to comply with the wearing of a safety helmet at all times, while working horses”. The letter went on to request a report from Mr Loveday’s optometrist, with a recommendation as to “your suitability to undergo stablehand duties, as a result of those restrictions”. The reference to an optometrist was corrected, by letter of 22 October 2001 from Mr Collins, to an ophthalmologist. Mr Collins noted in this letter that “I have since referred your medical report to HRNSW’s official Medical Officer, Dr Ed Price”. There is no evidence that Mr Loveday provided a report as requested.
35 On 17 October 2001 Mr Collins wrote once more to Mr Loveday asking for a cheque for $38.00 for a criminal records check to be conducted with the Police. Mr Loveday said in evidence that he did not comply with this request, as he was offended by the requirement that he pay for a criminal records check, given that the only criminal record he had “the Authority knew about”.
36 It must be said that the position regarding the two applications for a licence is far from clear, as the copies of applications tendered to the Tribunal appeared either to be dated 31 October 2000 or 29 August 2001. The above chronology comes from correspondence from the Authority to the President of the Anti-Discrimination Board on 4 December 2001 that formed part of exhibit B, and from Mr Mullins’ statement (exhibit A-1). What is clear is that the licence was not granted.
37 The Authority later sought to review the case “with a view to endeavouring to arrive at some satisfactory arrangement in respect of your future participation in the harness racing industry in this State” (Letter 16 August 2002, annexure G, Ex A-1). That letter, dated 16 August 2002, again sought that Mr Loveday attempt to find some modification solution to the helmet issue, and that when he did so, the Licensing Review Committee “may also require a report from an ophthalmologist in respect of the current state of your eyesight”.
The Council’s Evidence
38 Mr Burne gave evidence for the Council. He is the Director of Governance and Human Services for Blacktown Council. He says that the terms of the Council’s public liability insurance require that “all necessary safety guidelines are in place in respect of the Riverstone Trotting Track. This requires the need for all track users to wear the required safety equipment”.
39 Mr Burgan also gave evidence for the Council. He says that he was appointed President of the Committee in November 1999. He tells of his efforts to get all drivers to wear helmets. He had particular difficulties not only with Mr Loveday but with three other trainers. One of them said to him, “Sam Loveday does not wear a helmet, why should I?”. He said he spoke to Mr Loveday about wearing a helmet, but that Mr Loveday said that he had applied to the Authority for an exemption. Mr Burgan made enquiries and found that Mr Loveday was not, in fact, licensed, and had not applied for an exemption. The course of events is detailed above.
40 The Council had Mr Loveday attend an Ophthalmic Surgeon, Dr Delaney. Dr Delaney gave a report (exhibit C-3). which found that Mr Loveday was blind in his left eye and had 6/18 in his right eye (6/9 with spectacles). He said that there is no improvement or treatment possible. Dr Delaney accepted that Mr Loveday had a need to shade his eyes from glare and that, if he were, as he stated, unable to wear a protective safety helmet, he would not be able to see well enough to carry out all the duties of a stablehand (specifically, those which entailed the working of horses at speed).
The Authority’s Evidence
41 Mr Mullins, the Chief Executive Officer of the Authority, sets out in his statement (Ex A-1, 9 October 2002) the statutory position of the Authority and the relevant rules. He also annexes some of the correspondence relating to Mr Loveday’s applications for a Stablehands licence. The effect of his evidence is given above.
42 Mr Thomas Gibson gave evidence on behalf of the Authority. Mr Gibson is an engineer and a director of Human Impact Engineering. He prepared a report which became exhibit A3 in the proceedings in which he set out his qualifications and experience. He was asked to outline the “need for the wearing of safety helmets in harness racing”. He reviewed a 1987 study in the US, Harness Racing Injuries and Deaths, The American Journal of Forensic Medicine and Pathology, 8(3): 185-207 by Bilgola et al in which it was found that after introduction into the harness racing industry of compulsory helmets conforming to the SNELL H87 standard, no cases of fatal head injury were reported. Prior to that time, head injuries were the most common cause of death (64%) in harness racing.
43 Mr Loveday cross-examined Mr Gibson on the point that the study referred to harness racing, rather than the activities that were undertaken by Mr Loveday (ie, exercising horses in training on a track). Although the figures in the US study were not tested by any studies undertaken in Australia, we accept that the scientific evidence shows that the wearing of helmets significantly reduced the risk of death or serious injury in harness racing. Although obviously there are different, and possibly graver, risks in racing harness horses than in training or working them on a training track, the beneficial effects of helmets are confirmed by the study and by Mr Gibson’s evidence.
44 In his report, Mr Gibson gave evidence that “it should be possible to adapt one of [the approved helmets] for use by Mr Loveday”. He cited hard hats with a floppy brim as used by construction workers. He expanded upon this evidence in the witness box, and gave evidence that a modified helmet, complying both with Mr Loveday’s medical needs and with the helmets approved by the Authority, would cost about $300.00. He was cross-examined by Mr Loveday as to whether the hat would stay in the correct position on the head if, say, knocked by the nose of another horse from behind. Mr Loveday’s cross-examination, however, centred on the tendency of all helmets to tip down rather than an altered helmet as proposed by Mr Gibson (T 25ff).
Mr Loveday’s Case
45 Mr Loveday says that only he has been “targeted” is for not wearing a helmet. In support of this contention he provides photographs of a number of horses being driven by drivers not wearing helmets. Many of these are not particularly relevant, being obviously photographs which were posed for the Harness Racing Gazette, or photographs from other states or from a long time ago (for example, the photographs included a photograph of a horse named “Ribands” training for the 1953 Intercommunion). Exhibits I, J and K show meetings from 2 July 2001, 3 July 2001 and 13 July 2001 respectively where horses are being driven while the driver does not wear a helmet. Mr Nebauer, the Chairman of Stewards, gave evidence that while the rule relating to helmets was enforced generally, it was not enforced in relation to the “birdcage” area (or “parade ring”) on racetracks, and that the photographs taken were of trainers or handlers driving into or in the parade ring. He says that the state of the enforcement of the rule is unsatisfactory and that other states enforce the wearing of helmets in the birdcage.
46 Mr Loveday also tendered a page from the September 2002 NSW Harness Racing Gazette which indicated that:
47 A similar notice appeared in the NSW Harness Racing Gazette for January 2003.
“Stewards have been carrying out trackwork inspections in recent months to ensure that only licensed persons are working horses on registered tracks. Stewards are also concerned with the number of persons not wearing vests during trackwork and have been instructed to take actions against persons who fail to wear approved protective vests and helmets.”
48 Mr Loveday says that the change in policy from an acceptance of unhelmeted and unlicensed drivers on tracks to a “crackdown” on those issues dates from the appointment of Mr Bergen as President of the Committee. He considers that Mr Bergen, together with a Mr Merchant, the Vice-President, commenced a campaign to “stop me from training horses” (statement of Mr Loveday, 7 October 2002, Ex C). Mrs Loveday said that “my husband … was singled out and discriminated against for being unlicensed and not wearing a helmet, whilst other persons were in the same category and no action was being taken against them” (Statement of Mr Loveday, 7 October 2002, Ex D). Mr Breaden, a former President of the Committee, said in his Statement of 7 October 2002 (Ex E) that:
49 However, Mr Breaden, in his oral evidence that he gave in support of Mr Loveday, agreed with the Council that “by the end of the crackdown, everyone, absent Mr Loveday, was wearing a helmet”.
“Mr Loveday was …targeted by Mr Burgan and Mr Merchant. During the conduct of the helmet wearing campaign neither Mr Burgan or Mr Merchant wore protective vests which became just as mandatory as helmets and they both became hated hypocrites and remain so to this day”.
50 There was also significant evidence as to whether or not a trainer’s licence had been granted to a person at Bankstown who was a paraplegic. In a letter to Mr Loveday of 16 August 2002 (part of Ex B) Mr Mullins, Chief Executive Officer of the Authority, confirmed that this was so and that Mr Gorrell, the trainer in question, was medically reviewed annually for renewal of his licence.
51 Mr Loveday has sought a “practical test” from the Authority as to his fitness to exercise or work horses under his wife’s supervision as trainer – that is, to act as a Stablehand. Mr Nebauer gave evidence that such a test was in fact used when new stablehand licences were being issued. It involved the applicant for a licence undertaking all the duties of a stablehand under the eye of a Steward. Mr Loveday suggested he be given such a test, but the solicitor for the Authority, Mr English, who represented the Authority at the hearing, replied by letter dated 11 March 2003 and said:
52 The explanation for the refusal of a practical test was that such a test involved demonstrating control of a horse during trackwork, and as Mr Loveday did not wear a helmet, he would be unable to take the test.
“We advise that our client does not believe that any purpose would be achieved by you partaking in a practical test”.
53 Mr Loveday relied heavily on the fact that the Riverstone Track was not registered at the time he was charged under rule 91. He says that because the track was not registered, the Authority had no jurisdiction over it. The respondents concede that the track was not registered until 26 March 2002 (a fact which Mr Loveday is not prepared to concede), but they say that the late registration is immaterial. The Tribunal was pointed to rule 90, which states:
54 The registration/jurisdiction point is unfortunately muddied by a number of statements by the Authority and by the Council that misstate the position. For example, a letter from Mr Nebauer to the President of the Anti-Discrimination Board dated 4 December 2001 (part of Ex B) states that the Riverstone Track was registered, when it was not, and Mr Nebauer’s fax to Constable Soames dated 19 March 2002 (part of Ex B) states that the track was registered to conduct official qualifying trials – a position which is not the case even under the current registration. However, the Tribunal is satisfied that the Authority may, by reason of s 9 of the Harness Racing New South Wales Act and by the rule-making power in s 10A under which the Rules were made, regulate the sport of harness racing, within New South Wales. “Harness racing” is defined in the Harness Racing New South Wales Act to mean “pacing or trotting” and is not confined to racing, or conduct of the sport only at a registered track.
“(1) The [Authority] may by licence regulate any activity connected with the harness racing industry”.
55 The Tribunal finds, therefore, that the Authority’s jurisdiction extends to the Riverstone Track even if the track is not, or was not, registered at the time the Authority’s Stewards took their action against Mr Loveday and at the time the Council took steps to exclude Mr Loveday from the Riverstone Track.
56 Mr Loveday made the point, strongly, that he had never “refused” to wear a helmet. Although very little turns on this point, it should be dealt with as it was a recurrent theme of the evidence given to the Tribunal. There is no evidence that Mr Loveday “refused” in the sense of saying “No, I won’t wear a helmet”. He consistently said to those who enquired, “I cannot wear a helmet”. Although this is not a “refusal” to wear a helmet in the context of ordinary speech, it is a failure to wear a helmet that would amount to the same thing in most contexts.
Consideration
57 The conduct of each of the Council and the Applicant needs to be examined in relation to the sections of the Anti-Discrimination Act under which the complaint by Mr Loveday is made.
58 It is not in dispute that:
59 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5, the Appeal Panel of the Tribunal examined the question which the Tribunal should pose for itself in direct discrimination cases. That question is: did the respondent on the ground of the applicant's disability treat the applicant less favourably than it treated or would have treated a person without that disability in the same circumstances, or in circumstances which were not materially different? There are two components to this question that were labelled by the Appeal Panel as differential treatment and causation.
for the purposes of the Anti-Discrimination Act . The questions to be answered are whether Mr Loveday has been discriminated against, and if so, whether that discrimination was unlawful.
a) Mr Loveday has a disability;
b) the Council and the Committee provide goods and services to Mr Loveday; and
c) the Authority is a qualifying body
60 In submissions, Mr Loveday put his case as follows:
61 In other words, Mr Loveday says he was discriminated against by all respondents because he is required to wear an approved safety helmet, and by the Authority for refusing to licence him while he does not wear an approved safety helmet.
“ I’ve been treated different to other people. Well, first off, the obvious one: the rule is “no hat” – that’s their rule. It’s not in the legislation. That’s their rule. … At Riverstone there, we’ve got four or five people there and they were questioned for not wearing a hat. They weren’t barred. … They weren’t prosecuted – me, because I stand up, because I said “you’re not registered with us. You haven’t got any right”. (T 104, 17 November 2003)
62 Mr Breaden gave evidence on Mr Loveday’s behalf as to the treatment of other drivers on the Riverstone track who did not suffer from a disability in eyesight. Mr Breaden conceded that, while prior to the “crackdown” there were other drivers who were not wearing helmets, Mr Loveday was the only one who continued not to wear a helmet. The evidence was that the Council and the Committee were concerned as to their insurance liability if drivers did not wear appropriate safety gear, and Mr Burgan (of the Committee), after discussions with Mr Nebauer (of the Authority) was charged with ensuring that the Rules of Harness Racing were complied with. The photographs relied on as evidence by Mr Loveday that other people were allowed to drive horses at tracks without wearing a helmet were explained, in our view, by the evidence referred to above that the rules were not policed during race meetings while horses were being paraded. That is a long way from a blanket exception to the rule that all drivers must wear a helmet at all times, as contended by Mr Loveday.
63 Mr Loveday brought no evidence to show that the Rules of Harness Racing did not apply to the situation, apart from the controversy about the registration of the Riverstone Track. As we have said, we are satisfied that the rules apply to activities within harness racing, and not only on tracks registered with the Authority. Accordingly, the question is not whether Mr Loveday was discriminated against in his failure to comply with the Rules – as the rules were applied across the board – but whether the Rules were effectively indirect discrimination against those who could not wear helmets because of some eye complaint.
64 To be successful on a claim for indirect discrimination, the applicant must establish the following factors:
65 In our view, this does not satisfy the second and third factors. The Tribunal accepts Mr Gibson’s evidence that a helmet could easily be designed, for a minimal or at least reasonable cost, which helmet would both comply with the requirements of the Authority and with the health aspects of Mr Loveday’s condition. The applicant is not, therefore, “unable to comply” with the requirement that he wear a helmet. It appears that the better way of looking at the matter is that the proper helmet has not yet been found. Mr Loveday did not call any other evidence, apart from relying on the fact that he had been working on the problem for his lifetime and had made unsuccessful enquiries as detailed above, to show that such a helmet could not be designed or that Mr Gibson’s theories as to the helmet’s design were wrong. He did not contact manufacturers of approved helmets, but instead made enquiries of sales personnel in saddleries. Those enquiries cannot be regarded as exhaustive. The Tribunal accepts that, while Mr Loveday is genuine in his belief that no helmet can be made which would solve his problem, that belief is not necessarily correct.
(see Walker v. State of NSW , [2003] NSWADT 13)
(i) the respondent required the applicant to comply with a condition or requirement in order to be provided with the services or be granted the qualification;
(ii) a substantially higher proportion of people who do not have the same disability as the applicant comply, or are able to comply, with that condition or requirement than do people who have the same disability as the applicant;
(iii) the requirement or condition is not reasonable having regard to the circumstances of the case;
(iv) the applicant does not comply, or is not able to comply, with the condition or requirement.
66 The Tribunal also accepts the submissions of the two respondents that the requirement of a helmet was, in all the circumstances, a reasonable one. The study in the US shows that wearing a helmet has a dramatic effect on serious injury and fatalities. Further, the question of the Council’s insurance is one that would make it reasonable to require persons using the Council’s property to protect themselves.
Conclusion
67 The Tribunal is not satisfied that either the Council or the Authority has breached the provisions of the Anti-Discrimination Act.
68 The complaint is dismissed.
69 No submissions as to costs were made by any party. Accordingly, pursuant to s 114(1) of the Anti-Discrimination Act, there is no order as to the costs of any party.
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