Skinner v Sully
[2011] QCAT 589
•23 November 2011
| CITATION: | Skinner v Sully [2011] QCAT 589 |
| PARTIES: | Mr Geoffrey Skinner (Applicant) |
| v | |
| Mr Matt Sully (Respondent) |
| APPLICATION NUMBER: | ADL128-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 4 August 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen, Member |
| DELIVERED ON: | 23 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Respondent, Matt Sully, to pay the sum of $13,000.00 damages, inclusive of interest, to the Applicant, Geoffrey Skinner, no later than 31 December 2011. |
| CATCHWORDS: | ANTI-DISCRIMINATION MATTERS – visual impairment –guide dog – accommodation Anti-Discrimination Act 1991 McNamara v Golonaise Pty Ltd & Janes [2006] QADT 7 |
APPEARANCES and REPRESENTATION (if any):
The parties were self-represented.
REASONS FOR DECISION
Summary of Facts
This is a complaint arising out of Mr Geoffrey and Mrs Janet Skinner’s efforts to book a relaxing holiday, using on on-line website, which links owners of holiday units with prospective renters. The Respondent in this matter, Mr Matt Sully, had listed his holiday unit in a luxury complex located at Broadbeach on the Gold Coast with Stayz.
[1]Stayz.com.au is not a Respondent in this matter, and no allegations have been made against “Stayz”.
As explained by Mr Sully, in listing his holiday unit with Stayz, he was able to advertise to a much larger group of prospective holiday renters searching online for places to stay. Enquiries about the unit were directed by Stayz to Mr Sully, who then responded to the persons enquiring himself. It was in this manner that Mr Sully found himself engaging in discussions about the unit with Mr and Mrs Skinner.
Late in the evening on 14 January 2010, Mr and Mrs Skinner were huddled around their computer, trying to plan a holiday during the winter months on the Gold Coast. They were enthusiastic about a deal for a “four week stay at a luxury apartment at Ultra, Broadbeach[2],” and they submitted a booking request. Shortly thereafter, they received a response from Mr Sully that the apartment was available for the 4 week period, at a cost of $2,772.00, with the deposit to be paid within 7 days of making the official booking.
[2] Applicant’s Contentions, filed in QCAT on 28 February 2011.
Mr Skinner then endeavoured to book the apartment and obtain details to transfer the deposit to Mr Sully. At this juncture, Mr Skinner advised Mr Sully that his guide dog would be travelling with him and staying in the unit. The ensuing correspondence between the parties led Mr Sully to decline Mr Skinner accommodation, for the reason that he says Mr Skinner was “blunt” and displayed a “demeanour of aggression, intolerance, impatience and basically [was] quite rude.”[3] Mr Skinner made a complaint to the Anti-Discrimination Commission Queensland on 26 July 2010 which was accepted on 10 August 2010, alleging that he was quite simply refused accommodation on the basis of his possessing a guide dog.
[3] Respondent’s Contentions, filed in QCAT on 19 April 2011.
The email trail between the parties is not in contention. However, to use the expression adopted by Mr Sully in his Contentions, I must determine whether the basis for Mr Sully’s refusal to let his rental unit to the Skinners was “the human, not the dog”.
The email exchange
In order to make a booking, the Skinners needed to pay a deposit. They advised at the hearing that they needed to secure accommodation in order to take advantage of competitive airfares that were advertised simultaneously. As such, Mr Skinner sent the following email, with Mrs Skinner’s typing assistance:
“Dear Matt,
Yes, this is fine. We will confirm our airline seats and transfer deposit tomorrow to your account. Can you please supply bank details.
As a matter of courtesy I am informing you that I will be accompanied by my accredited Guide Dog.
Regards,
Geoff Skinner”
In response, Mr Sully indicated that he had not been asked about guide dogs before, and needed to check with the building body corporate. Whilst this response demonstrates ignorance of the special status enjoyed by guide dogs (that is, to go where the persons they are assisting go), it is somewhat understandable given the range of disputes that arise in body corporate settings involving dogs that are merely pets. However, Mr Sully’s response did not stop there – he further indicated that, “I also need to think about how I feel about having the dog in the apartment for one month.” In my mind, this is strong evidence that Mr Sully had already considered that he did not want any dogs, guide dogs or mere pets, in his apartment regardless of the body corporate’s response.
From here, the email exchange became increasingly terse. Mr Skinner, needing to know if he could book his airfare, then sent an email to Mr Sully asking, “Are you accepting this booking?”
The forthcoming response was not a simple “yes” or “no”, but was instead an exercise in condescension:
“Hi Geoff,
Thank you for your email. I have heard back from the body corporate and as I suspected there is no problem at all allowing guide dogs onto the premises. I just wanted to check as I had not been asked before, and now in the future I can respond with knowledge to any future similar enquiries.
My apartment is available to those I choose to let it to. From time to time enquiries come in from people and the nature of the communication is not all that friendly and I choose to not let it to them. Sometimes they ask for a discount or free nights or whatever, and my terms are fair and they get upset. They then expect me to desire their business, which is questionable. Other enquiries might come in for 4 adults, so I check with them access, the same goes for anybody I suspect might be on schoolies or visiting the Indy race. As I only have one room I have the power of discretion.
I put time into my guests developing a spirit of good will. I put wine in the fridge and order in a pizza for them for the first night. That investment in “good will” gives me confidence that they will take care of my belongings and should an accident occur they will remedy it or let me know. One guest after spilling a cup of tea hired a carpet cleaning machine and steam cleaned the entire lounge room. My view is that by taking care of my guest it can help cement a bond and the guest will take care of my beautiful apartment. It’s an investment I cherish, and I manage it personally so that I can best protect it.
I am sure you would agree the flavour of your communication with me has been rather combative and unprovoked hostility is apparent in your dialogue. My answer to your enquiry was I was going to check, to which you immediately reacted in a negative tone. Your emails even dispensed with the usual opening or closing salutations. You would not talk to me like that, so please be careful with your written dialogue.
In this instance I hope you would agree we do not appear to be bonding and getting on all that well. So as is my right I am choosing to not let the unit to you.
Best regards,
Matt Sully”
I find that Mr Sully’s response, above, demonstrates an extraordinary lack of understanding about the frustration that persons with impairments face in everyday life. The insinuation by Mr Sully that the Skinners might be unsavoury sorts who would trash his apartment is offensive. The entire tone of Mr Sully’s email is self-focussed, and ignores the fact that he previously told Mr Skinner that he needed to consider how he felt about his guide dog. One might expect that, once the body corporate confirmed that guide dogs are welcome, Mr Sully might have apologised to the Skinners for his own lack of understanding about the applicable laws.
In his contentions, Mr Sully complains, in part, that Mr Skinner's emails were "written without greeting, salutation or manners." Yet, it is my assessment that Mr Sully's expectations as to etiquette are overly high, given the circumstances. This was an everyday business transaction, between two individuals who did not know each other, and not any response to a social invitation, of the type that might warrant any greater degree of formality.
As sad as it is, “old-fashioned letter writing” has been on the wane now, for many years. Arguably that decline has more recently gone into hyper-drive since the ascendancy of e-mail as the new dominant form of everyday business communication. It is now quite common to receive what might be construed as quite terse e-mail (often also bereft of most forms of proper punctuation) from even decent, well-meaning communicants. Their intent is neither to offend nor to insult. Rather, modern business e-mail communications (in particular) are just a sign of our busy times, and these have been distilled down to an irreducible minimum, devoid of greetings and old-school salutations. These things are just seen as surplusage for many people who just do not have the luxury of sufficient time to craft a proper letter.
I might add here that as patient and supportive as Mrs Skinner appeared in the hearing of this matter, she was assisting her husband (in consideration of his vision impairment) with the typing of all of his communications. Presumably, she also has her own email to respond to. Considering that Mrs Skinner is typing for two, I consider the adoption of a briefer approach to communication to be perfectly sensible. Moreover, in his Contentions, Mr Skinner indicated that he finds it difficult to type and communicate via email and so he dispenses with formalities often.
The burden of educating society
Persons such as Mr Skinner carry an additional burden with them in life – the burden of constantly being put in a position, due to the ignorance of others, of having to play the role of educator. Here, Mr Skinner had to put his vacation plans on hold while Mr Sully investigated what Mr Skinner already knew to be the case – that guide dogs are welcome in most places that people are. Because they are dogs, and most people like dogs, guide dogs and the persons they are with attract a fair amount of attention. Guide dog owners have to deal with persons (and in particular, children) who do not understand that when the guide dog is out and about, they are working. They are not meant to stop to be patted, yet routinely are asked to do so. Not infrequently, guide dogs and their owners are stopped when trying to enter stores, or restaurants, and again, the visually impaired owner is put in a position of having to explain the role of the guide dog, and that the guide dog is lawfully permitted to travel with them. Having to navigate this complex social maze of not wanting to seem impolite, yet having to continually respond to the ignorance of society must be emotionally draining.
Yet, here, not only was Mr Skinner put in this uncomfortable position as educator, he was then insulted besides. Mr Skinner alleges that he was discriminated against on the basis of his visual impairment, in being denied accommodation by Mr Sully.
Relevant Anti-Discrimination Legislation
The Anti-Discrimination Act 1991 makes it unlawful to refuse to rent accommodation to a person with an impairment who relies upon a guide dog. Relevantly, s 85(1) of the Act provides:
(1) A person must not discriminate by doing any of the following--
(a)refusing to rent accommodation to another person because the other person has an impairment and relies on a guide, hearing or assistance dog;
(b)requiring the other person to keep the dog elsewhere;
(c)requesting or requiring the other person to pay an extra charge because the dog lives at the accommodation.
(2) This section does not affect the liability of the person with the dog for any damage caused by the dog.
In enacting this law, the Queensland Government obviously considered the concerns that property owners such as Mr Sully would have vis-à-vis dogs, and specifically addressed the issue about liability for property damage.
The human, or the dog?
It is my view that s 85(1) of the Act applies in a straightforward way here:
§ Mr Skinner is visually impaired and relies upon a guide dog; and
§ Mr Sully refused to rent accommodation to Mr Skinner once he discovered he relied on a guide dog.
On the best view of Mr Sully’s case, I might find that he inadvertently prioritised his need to be communicated with in an excessively polite fashion, over and above Mr Skinner’s fundamental human right to not be discriminated against. However, I don’t think this to be the case for the reasons that (1) Mr Sully told Mr Skinner he needed to himself consider how he felt about a dog in the unit, regardless of the body corporate’s response; and (2) Mr Sully’s interpretation of the level of “etiquette” he was entitled to expect in a routine commercial transaction was excessive; and (3) his response to Mr Skinner was demeaning and indicated that Mr Sully did not appreciate that Mr Skinner was entitled to be irked at having to tell Mr Sully what his legislative obligations were with respect to the guide dog.
I don’t consider that there was any sufficient justification to warrant denying Mr Skinner accommodation on the basis of his being a “human” with questionable manners; rather, I have found that he was denied accommodation on the basis of the “dog”.
Having found that Mr Sully contravened s 85(1) of the Act, I must consider what orders to now make. Mr Skinner seeks the following orders:
§ An apology from Mr Sully for the hurt and injury he has suffered as a consequence of the discrimination;
§ Damages to compensation for injury to feelings; and that
§ Mr Sully undergoes training about rights and responsibilities under anti-discrimination law.
These are all orders that can be made pursuant to s 209 of the Act, in circumstances where a complaint has been proven.
The circumstances presented in this matter are quite similar to those in McNamara v Golonaise Pty Ltd & Janes [2006] QADT 7, where the complainant was also found to have been discriminated against for the reason that he relied upon a guide dog, as he was visually impaired. Mr McNamara was awarded $10,000.00 (inclusive of interest) for his hurt, humiliation, embarrassment and distress, after being refused accommodation at a motel. As a consequence of the refusal, Mr McNamara missed out on several long-anticipated social events.
Here, Mr and Mrs Skinner ultimately went on to have a holiday, elsewhere. However, it was apparent that this episode caused Mr Skinner much distress. Both Mr and Mrs Skinner gave evidence that Mr Skinner had become depressed, was taking sleeping pills for the first time ever, and is questioning his decision to have a guide dog in view of the conflict caused. The treatment of Mr Skinner by Mr Sully has been demeaning, and would have contributed to his feelings of distress, and embarrassment.
In the circumstances, I don’t consider that it will be helpful to order Mr Sully to apologise or attend training. An apology is useful when genuinely made, or when it carries with it some broader political or social meaning. Similarly, if having now gone through this hearing process, Mr Sully does not understand where he erred, it is my view that training will not assist. I would accept that training can be terribly helpful in a workplace context, or when an individual expresses a desire to improve their understanding of diversity, but here, the tenor of Mr Sully’s Contentions is such that I am not confident training will assist.
By way of example, Mr Sully alleged that Mr Skinner was a person who “embraced conflict” on the basis that whilst on vacation, Mr Skinner also ran into conflict with a local restaurateur after having been refused entry to a restaurant with his guide dog. Of course, this is not of any legal relevance to the decision that I have made. However, it is demonstrative of the very essence of the problem here, which is that instead of seeing Mr Skinner as a person who is struggling to exercise his rights as a visually impaired person with a guide dog, he is instead seen as a serial complainer. This is most unfortunate.
For the reasons that I have canvassed, and guided by the award in McNamara (made more than 5 years ago) I consider an appropriate award to be $13,000.00, inclusive of interest, to be paid by Mr Sully to Mr Skinner as compensation for his emotional distress.
Order
The Respondent, Matt Sully, to pay the sum of $13,000.00 damages, inclusive of interest, to the Applicant, Geoffrey Skinner, no later than 31 December 2011.
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