Spence v Roberts (No 2)

[2006] NSWADT 361

CITATION:	Spence v Roberts (No 2) [2006] NSWADT 361
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Allan Spence RESPONDENT Wendy Roberts
FILE NUMBER:	051110
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	08/28/2006
DATE OF DECISION:	12/22/2006
BEFORE:	Britton A - (Deputy President); O'Sullivan M - Non Judicial Member; Quayle C - Non Judicial Member
CATCHWORDS:	Disability Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Martin v McKensey (No. 2) [2003] NSWADT 126 Spence v Roberts [2006] NSWADT 105 Turner v State Transit Authority & anor [2004] NSWADT 89
REPRESENTATION:	APPLICANT In person RESPONDENT D Mockler, solicitor
ORDERS:	The complaint of disability discrimination is dismissed.

REASONS FOR DECISION

1 Alan Spence claims that in the course of a psychological assessment he was assaulted and mistreated by psychologist, Dr Wendy Roberts and, that that conduct, constitutes discrimination on the grounds of disability. Dr Roberts strenuously denies these allegations and asserts that the examination was conducted in a professional and courteous manner.

2 Before proceeding to consider Mr Spence’s complaint, it is useful to set out the background to these proceedings.

Background

3 In April 2005 Mr Spence lodged a complaint about Dr Roberts with the President of the Anti-Discrimination Board (respectively ‘the President’ and ‘the Board’) alleging discrimination on the grounds of disability in the area of services. By letter dated 30 August 2005, the President referred that complaint to the Tribunal.

4 Since then five case conferences have been listed in this matter. Mr Spence attended none in person and four by phone. Many were listed to deal with applications made by Mr Spence requesting the Registrar to issue summonses in this matter against Dr Roberts and various third parties.

5 In the early part of these proceedings, Mr Spence applied to join Allianz Australia and, the solicitor who represented Allianz in District Court proceedings that involved a personal injury claim brought by Mr Spence. That application was refused. (Spence v Roberts [2006] NSWADT 105.)

6 The matter was listed for a two-day hearing to commence on 19 June 2006. Shortly before the hearing was to commence, Mr Spence applied for an adjournment. That application was refused. At that hearing, the Tribunal received a further adjournment application from Mr Spence, who was not in attendance. Attached to that application was a letter from Mr Spence’s treating doctor who stated that Mr Spence suffered from a ‘potentially life threatening medical condition’ which could be made worse by any stressful situation. He certified that Mr Spence was unfit for any court hearing or meeting. At Mr Spence’s invitation, the Tribunal contacted the doctor and requested further details about Mr Spence’s state of health. The doctor confirmed that Mr Spence was unwell and advised that he would be unable to participate in any hearing before the Tribunal in the foreseeable future.

7 Counsel for Dr Roberts opposed the application for an adjournment. He argued that it was telling that Mr Spence had not applied to the District Court to vacate the five-day hearing listed for later that month which related to Mr Spence’s personal injury claim. [Dr Roberts’ legal representatives subsequently advised the Tribunal that Mr Spence attended those proceedings and at no stage suggested to the Court that he was unfit to give evidence or proceed.] He went on to argue that given Mr Spence’s conduct in these proceedings, which included the alleged publication of scurrilous and defamatory material about Dr Roberts, that it would be a great injustice if the matter were not brought to finality. It was argued for Dr Roberts that, in the circumstances, the matter ought proceed in the absence of Mr Spence.

8 We decided to vacate the hearing dates and determine the matter on the basis of the evidence that had been filed by both parties in compliance with earlier directions. Oral reasons were given for that decision. Both parties were invited to and did provide written submissions. Mr Spence’s submissions were filed on 4 August 2006 and Dr Roberts’ were filed on 16 August 2006.

9 Throughout the course of these proceedings, the Tribunal has received voluminous correspondence from Mr Spence. These documents contain a mix of submissions and evidence, requests for summonses, commentary on the Tribunal’s procedures and practices and an assortment of complaints about Dr Roberts, her legal representatives and various third parties. Where relevant this material has been taken into account in our decision.

Mr Spence’s account of the assessment

10 The complaint referred to the Tribunal by the President concerned Dr Roberts’ alleged mistreatment of Mr Spence in the course of a psychological assessment conducted in her rooms on 19 July 2004. Dr Roberts had been requested by Allianz Australia to assess Mr Spence and report on that assessment. Allianz intended to use that report for the District Court proceedings referred to at paragraph [5] of these reasons.

11 Mr Spence’s account of what happened in the course of the offending assessment is set out in various documents that have been filed in these proceedings. These include the initiating complaint to the Board; further correspondence received by the Board from Mr Spence (s 94A(1)(c) of the Anti-Discrimination Act 1977 (‘the Act’)), statements / documents provided by Mr Spence to the Tribunal, including letters/submissions to the Tribunal dated 26 September 2005, 4 October 2005, 7 November 2005, 29 November 2005, 21 December 2005, 1 February 2006, 19 February 2006, 20 February 2006, 13 March 2006, 10 May 2006, 17 May 2006, 18 May 2006, 21 May 2006, 22 May 2006, 25 May 2006, 26 May 2006, 27 May 2006, 5 June 2006, 12 June 2006, 3 July 2006 and 3 August 2006.

12 Also before the Tribunal was a copy of the complaint made by Mr Spence to the Health Care Complaints Commission dated 21 July 2004. Mr Spence also lodged complaints about Dr Roberts with the Psychologists Registration Board, the NSW Medical Board, the Independent Commission Against Corruption and the NSW Ombudsman. Copies of these complaints were not provided to the Tribunal, but were referred to by both parties. We understand that these bodies either dismissed or refused to deal with Mr Spence’s complaints.

13 In his initiating complaint to the Board, made on 11 April 2005, Mr Spence alleged that:

The assessment started at 8.30 am and ‘[l]asted seven and a half hours before collapsing’;

Dr Roberts ‘physically assaulted’ him several times and the assessment ended with him collapsing in the ‘toilet, on the street and in a garden’;

The assessment brought on a ‘heart attack’ and ‘diabetic episode’;

Dr Roberts refused his request for water to take diabetes/heart pills;

Dr Roberts refused him liquids for four hours;

Dr Roberts pushed him back into a chair when he attempted to stand to relieve his back pain and hit him across the wrist when he attempted to drink his coffee;

Dr Roberts told that he must continue with the tests or there would be ‘no court date’;

Dr Roberts refused him medical attention and water after being told that he could not see and was dizzy and that he had neck and head pain;

Dr Roberts told him that he could not go home and see his doctor when he said he felt he was going to faint;

Dr Roberts intimidated him by speaking to two lawyers on the phone ‘seven times’;

Refused to call an ambulance after he became sick/dizzy and lost control;

Told him to ‘watch the carpet’ when he vomited in her rooms;

Carried and pushed him out of her rooms through a security door.

14 In an undated facsimile received by the Board on 25 May 2005, Mr Spence made further allegations about Dr Roberts. The central allegation was that she had fraudulently held herself out to be a ‘medical doctor’. He alleged that in the course of the assessment Dr Roberts: commented on his x-rays and injuries; prescribed medication; assured him that the symptoms he was experiencing (head and neck pain, a dry mouth, sweating and dizziness) would pass. It was also alleged that Dr Roberts ‘tossed him out’ of her rooms and locked the door behind him.

15 Mr Spence went on to assert that ‘OLSC confirmed that the two lawyers had been phoned in the medical examination by Dr Roberts and that she had subpoenaed [apparently through the NSW District Court], the medical records of the emergency treatment given by his treating doctor, Dr C Papacosta’. He claimed that his treatment ‘amounted to torture’.

16 In response to Dr Robert’s reply to those allegations (TAB 5 of the President’s report), Mr Spence repeated many of the allegations previously made to the Board. These included that Dr Roberts:

Refused his request for water, so that he could not take his medication;

Pushed him back into a chair to prevent him from standing up;

Hit his right hand/wrist when he attempted to drink from a cup of coffee;

Told him that he could not leave to seek medical attention when he complained of head and neck pain and dizziness;

Carried him to the security door, pushed him out, and pointed to the toilet.

17 In that letter he also alleged that Dr Roberts:
Told him that the reasons he could not have water was because the medication he was planning to take would interfere with the testing;

Continued with the assessment for one and a half hours after he first displayed signs of being in medical difficulty;

Advised him that his vomiting was caused by something he ate, that his other symptoms would pass and that the testing should continue.

18 He asserted that the tests conducted by Dr Roberts should have taken 14 hours to complete.

19 In submissions, dated 2 August 2006, Mr Spence alleged for the first time that Dr Roberts intimidated him by:

Remarking that if he broke the appointment, he would be unable to be tested for another six months;

Taking up to 20 phone calls during the course of the appointment, several of which were to lawyers.

20 He also amended earlier allegations and claimed that Dr Roberts:
Pushed him back down into a chair, so that he could not relieve his back pain; directed him to sit by slapping him on the shoulder;

Whacked his wrist away from a cup of coffee, claiming that he was not to drink anything while tests were being conducted;

Conducted testing that should have taken 16.5 hours over an eight-hour period;

Continued with the examination and testing for another two hours after he first complained of not feeling well.

What Mr Spence’s doctors say

21 In a statement dated 1 November 2005, Dr Costakis Papacosta, Mr Spence’s general practitioner since 1993, stated that Mr Spence attended his practice on 21 July and reported on the consultation with Dr Roberts. Dr Papacosta wrote that, at that consultation, Mr Spence informed him that in the course of a prolonged psychological examination he had made it clear to Dr Roberts that he was unwell, was experiencing blurred vision, headaches, and neck pain and requested that he be allowed to go home. Dr Papacosta wrote that Spence told him he was ‘refused water, medications for his pain and exercise for back pain’.

22 According to Dr Papacosta, since that consultation, his patient’s health had deteriorated. Specifically his diabetes and blood pressure became uncontrolled. In Dr Papacosta’s opinion, his patient was ‘continually distressed psychologically’ and constantly recounted ‘events of that day [19 July 2004]’.

23 In Dr Papacosta’s opinion this ‘undue stress on [Mr Spence’s] physical and psychological wellbeing was a major contribution to him developing Atrial Fibrillation, which required hospitalisation and anti-coagulation’.

24 In a letter dated 11 August 2004 to Mr Spence’s (then) solicitors, Dr Papacosta wrote that the assessment had led to a deterioration in his patient’s sugar levels as confirmed by blood tests. Also, according to Dr Papacosta, it caused a rise in Mr Spence’s blood pressure and significant psychological distress He went on to recommend that his patient not attend any further assessment by Dr Roberts.

25 Dr Papacosta wrote, in a letter dated 3 November 2004 to Professor Yue, a specialist treating Mr Spence for diabetes, ‘Mr Spence was required to undergo a medico legal neuropsychological test for a total of seven hours. Had bad experience most probably a hypo episode, collapsing in the toilets. Has had a dramatic effect psychologically and since then Hba1C [Diabetic control index] has deteriorated’.

26 Mr Spence also tendered in these proceedings a statement from clinical psychologist, Dr S Anthony, dated 1 November 2005. Mr Spence had been a patient of Mr Anthony since April 2004. Mr Anthony wrote that when he saw Mr Spence the day after the offending assessment he ‘was considerably distressed by the experience’. He wrote that Mr Spence was disturbed by ‘the length of the assessment session, the manner of Dr Roberts and the pressure he was put under to complete assessment tasks, despite complaints that he was not well’.

27 In Mr Anthony’s opinion as a result of the assessment, Mr Spence had become more anxious, agitated and depressed in mood.

Dr Robert’s account of the assessment

28 Dr Roberts gave a very different account of the offending assessment. The evidence she relies upon includes her reply to the Board dated 28 June 2005 (Tab 4 of the President’s report), and her statement provided to the Tribunal dated 16 May 2006. In addition, she provided statements prepared by the cleaner of her rooms and solicitor, Mr Tony Dyer. She also makes reference to the statement filed by Mr David Cooper, dated 20 February 2006.

29 Dr Roberts claimed that at the commencement of the assessment she explained to Mr Spence that she was a clinical psychologist and outlined what the assessment would involve. She claimed that she made clear to Mr Spence that if, at any time, he found the assessment to be ‘too much’ that arrangements could by made to ‘break it up’ and the testing would be rescheduled. She denied mistreating Mr Spence or at any time acting in an unprofessional manner.

30 Dr Roberts denied:

Not providing refreshments. She contends that he was offered refreshments at regular interval throughout the course of the assessment;

Having any physical contact with Mr Spence, specifically hitting/slapping a coffee cup out of him hand; dragging/pushing him out of her rooms;

Not providing him with regular breaks. On her account the testing started sometime after 8.30 am, there was short break at 11 am and a one hour lunch break at 12.30.

31 On Dr Roberts’ account the first indication that Mr Spence might have been unwell was some time after lunch when, in the course of administering a test, she observed him rubbing his neck. He complained that he felt dizzy and said that he did not have his pills. Dr Roberts claimed that she then offered to break the session up but Mr Spence elected to continue. She also claimed that shortly after this Mr Spence said he did not want to continue and she immediately agreed to reschedule the remainder of the session to another day.

32 On Dr Roberts estimate Mr Spence left at about 2.30 pm and, as he did so commented that he ‘felt sick’. She said she directed him to the male toilet outside her rooms. She said she did not see him vomit.

33 Dr Roberts tendered in these proceedings a copy of the information sheet that had been provided to Mr Spence before the assessment which stated that the assessment would run for approximately four hours. According to Dr Roberts, the assessment ran longer than this because it was not until she met Mr Spence on the day of the assessment that she became aware that additional tests to those planned were neccesary. She said she had not been aware when the appointment was made that cognitive testing would be required. On her account such testing is generally not undertaken unless a head injury or the like is involved.

34 Dr Roberts challenged Mr Spence’s claim that the testing undertaken should have taken at least 14 hours to complete. She said for example that the Wechsler Adult Intelligence Scale and the Wechsler Memory Scale normally take just under 80 minutes to administer. She claimed that she did not administer the ‘New Verbal Learning test’ cited by Mr Spence and knows of no such test.

35 Dr Roberts denied contacting ‘two lawyers numerous times’ while Mr Spence was present. She claimed that on 19 July 2004 she spoke with Mr Cooper, the solicitor acting for Allianz, three, possibly four times, but denied speaking to him while Mr Spence was present.

36 Mr Cooper, in a statement dated 20 February 2006, stated that Dr Roberts contacted him on 19 July 2004 to tell him that Mr Spence had refused to complete a questionnaire ‘on legal advice’. Mr Cooper said he then contacted Mr Spence’s solicitor, Mr Dyer, who said he had not spoken to his client on that day. Mr Cooper then relayed that advice to Dr Roberts. On his account sometime after this Dr Roberts rang him to advise that Mr Spence told her he had spoken to Mr Dyer’s secretary, not Mr Dyer himself. Mr Cooper said that later that day he received a call from Dr Roberts in which she advised that at Mr Spence’s request she had agreed that a further examination would need to be organised.

37 Mr Dyer stated that he did not speak to Dr Roberts on the day of the assessment or at any time after the assessment. He confirmed that he had received a call from Mr Cooper who told him that there was a problem with the examination. He claimed he then tried unsuccessfully to contact Mr Spence.

38 In a statement dated 25 November 2005, Kyung Sik Noh, stated that she had been cleaning Dr Roberts’ rooms on a regular basis since January 2002. She stated that she had never been required to clean up signs of vomit in the rooms or seen any sign of the same.

Our findings about what happened at the assessment

39 The following is not in issue: Dr Roberts had been requested by Allianz to assess Mr Spence and prepare a medico legal report for the purpose of a personal injury claim made by Mr Spence that was before the District Court; the assessment started at about 8.30 AM and finished some time after lunch (Dr Roberts estimated that it ended at about 2.30 pm, Mr Spence claimed that it ran for a further one and half hours); before the assessment, both parties thought the assessment would not go beyond lunch; sometime after lunch Mr Spence told Dr Roberts that he felt unwell and did want the assessment to continue; Mr Spence left Dr Roberts’ rooms unaided.

40 From this point on, the accounts given by each party diverge. Mr Spence claims that the testing was arduous, he was not permitted to take a break, denied refreshments and was not allowed to take his medication. To add insult to injury, he claims he was physically assaulted by Dr Roberts and denied medical assistance after telling her he was too ill to continue. From day one, Dr Roberts has strenuously denied these allegations.

41 Mr Spence also asserts that Dr Roberts’ testing regime was overly ambitious and could not be achieved in less than 14/16.5 hours without injury to health. Dr Roberts gave detailed estimates of the length of each test and claimed that the time she had allowed for each was reasonable and in line with the practice throughout the profession. On the evidence presented we could not be satisfied that the time allocated for testing was, as asserted by Mr Spence, inadequate.

42 As is self-evident, this is largely a case of word against word. There is, however, some evidence to support some parts of the accounts given by each party.

43 The evidence of Messrs Dyer and Cooper supports Dr Roberts claim that she was not ‘constantly on the phone’ to lawyers throughout the consultation. While Mr Cooper cannot confirm Dr Roberts’ claim that she was not on the phone while Mr Spence was present in the room, his evidence of four brief conversations together with that given by Mr Dyer contradicts Mr Spence’s account. The evidence given by the cleaner also supports Dr Roberts’ claim that Mr Spence did not vomit in her rooms.

44 The evidence given by Mr Spence’s treating doctor and psychologist supports his claim that following the assessment he was very distressed. Their evidence, however, warrants careful attention. As recorded above, Dr Papacosta, in his statement provided to the Tribunal, wrote that Mr Spence told him that he had been ‘refused water, medications for his pain and exercise for back pain’. What is difficult to discern is when Dr Papacosta was told these things. His clinical notes, produced under summons, record that two days after the assessment he recorded, ‘On 19 July 2004 during a prolonged i.e. six to seven hours neuro-psych assessment ended up with headache, neck pain, vomited outside of room, hit head on toilet’. The only other mention of the assessment in Dr Papacosta’s notes is the entry for 2 November 2005, which refers to ‘counselling re Dr Roberts letter’.

45 We accept Dr Papacosta’s claim that Mr Spence told him the things he recorded in his statement to the Tribunal. We cannot be satisfied however that at the first consultation following the offending assessment Mr Spence told him all of the allegations set out in that statement. While possible that a busy general practitioner, such as Dr Papacosta might simply have failed to make an accurate contemporaneous record, it seems somewhat improbable to us that a report by a patient with Mr Spence’s conditions, of being refused water and medication, in the course of a psychological assessment would not have rated a mention in the clinical notes. While possible we could not be satisfied that this occurred.

46 It is to be observed that Mr Anthony’s account of what he was told by Mr Spence differs in a number of material respects to that provided by Dr Papacosta. Mr Anthony does not claim that Mr Spence reported being refused water or the opportunity to take his medication or, perform his back exercises. He merely says that Mr Spence told him he was disturbed by ‘the length of the assessment session, the manner of Dr Roberts and the pressure he was put under to complete assessment tasks, despite complaints that he was not well’.

47 Complaint evidence is potentially relevant and, depending upon the circumstances, can be received as evidence of the truth of what is asserted by a complainant. As such, it is an exception to the rule against hearsay. One of the factors to be taken into account in determining what weight, if any, is given to such evidence is the passage of time between the conduct complained of and the making of the complaint. As a general rule, the more contemporaneous the complaint the more reliable the evidence. The accounts given by Dr Papacosta and Mr Anthony indicate that at their first (respective) consultations with Mr Spence after the meeting with Dr Roberts, he reported that he had been very distressed by the experience and felt under pressure to continue. It is noteworthy that neither Dr Papacosta or Mr Anthony have ever claimed that Mr Spence told them he had been hit/slapped /pushed by Dr Roberts or, that he had vomited on the floor of her room/toilet/garden.

48 While the evidence given by Dr Papacosta and Mr Anthony does not support all of the allegations made by Mr Spence it does support his claim that he was very distressed following the assessment and felt under pressure to complete it.

49 Dr Roberts points out that Mr Spence’s account has changed over time. She points to the significant discrepancies between the original account he gave to the Board and the more recent one given to the Tribunal. It is argued that the allegations have become wilder and more colourful over time.

50 Mr Spence argues that it is telling that numerous doctors have assessed him but that he has lodged complaints against only one, Dr Roberts. He also contends that if the Tribunal had acceded to his request for summonses to be issued in respect of various complaint handling organisations and the like, evidence would have been available to support his claim that his treatment was not a one-off but indicative of a pattern of behaviour on the part of Dr Roberts.

51 Of the many factual matters in dispute, what is clear is that Mr Spence became distressed after seeing Dr Roberts, so much so that he reported this to his doctors. While as Dr Roberts pointed out Mr Spence had not been a well man before the assessment, the evidence as a whole supports Mr Spence’s contention that his health, both physical and mental, declined after the assessment. Of itself this does not establish that he was mistreated in the manner as alleged. There are any number of reasons that might explain why Mr Spence reacted as he did to the treatment he received from Dr Roberts. One possibility is that he was treated in the manner as alleged. Another is that the assessment was conducted in the innocent and professional manner described by Dr Roberts but Mr Spence found that confronting knowing that her report would be used by the opposing side in pending legal proceedings. A further possibility is that the medical conditions he was suffering from at the time meant that his perception of reality was somewhat unreliable.

52 The Briginshaw standard sets a relatively high evidentiary hurdle, requiring us to be comfortably satisfied that the alleged incidents about which Mr Spence complained occurred. We have two conflicting accounts of what happened in Dr Roberts’ rooms. While there are some significant inconsistencies in the various accounts given by Mr Spence, there is an underlying thread that is not contradicted by Dr Roberts - that is, that before arriving at Dr Roberts’ rooms he had been told that the assessment would be over by lunch and it was not and after lunch he felt ill and eventually unable to continue. While Dr Roberts cannot give evidence about how Mr Spence might have felt, her account of the assessment does not contradict this. However apart from that description, on the evidence before us, we could not be satisfied that Dr Roberts treated Mr Spence in the manner he alleged. In reaching that conclusion we note that from day one Dr Roberts has vehemently denied the allegations made by Mr Spence and that her account of the assessment has been consistent throughout.

53 We proceed on the basis that we will not have regard to any part of the account given by either party of the offending assessment, where it differs from that given by the other unless supported by reliable independent evidence.

Elements of Disability Discrimination

54 The test of what constitutes discrimination on the grounds of disability is set out in s 49B of the Act. Mr Spence’s claim is cast as one of ‘direct discrimination’ as defined in s 49B(1)(a). To succeed in his complaint of disability discrimination Mr Spence must establish on balance the following elements:

First, that he had a disability or was thought to have a disability (ss 4 and 49 A of the Act);

Second, that the conduct complained of falls within a substantive provision of the Act (s 49M);

Third, if so, that in the same or similar circumstances Dr Roberts would have afforded a person without Mr Spence's disability more favourable treatment.

Fourth, if so, that one of the reasons for any less favourable treatment was Mr Spence’s disability.

A disability?

55 In submissions Mr Spence described himself as ‘legally disabled’. He has not told the Tribunal which of his disabilities he relies upon for the purpose of his complaint of disability discrimination.

56 The evidence makes it clear that at the time of the assessment Mr Spence suffered from a number of conditions, which satisfy the statutory definition of disability. These include diabetes and a heart condition, to name but two. We proceed on the basis that these are the disabilities on which Mr Spence relies.

Substantive provision of the Act?

57 Section 49M(1) makes it 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.

58 While raised by neither party it would seem to us arguable that the complaint made by Mr Spence, or more correctly that part of the complaint found proven by us, might not fall within the scope of s 48M. That provision makes it unlawful for a person who provides goods or services to discriminate against another person on the grounds of disability. In this case, there was no refusal to provide the service (namely a psychological assessment). Therefore Mr Spence must establish that the conduct about which he complained fell within the scope of paragraph (b) - that is, it related to the terms on which Dr Roberts provided him with those services.

59 In Turner v State Transit Authority & anor [2004] NSWADT 89 the Tribunal (differently constituted) considered the meaning of s 38M(b). That provision makes it unlawful for a person to discriminate against a person on transgender grounds in the area of goods and services. That case concerned the treatment of a passenger by a bus driver. The Tribunal examined whether such conduct constituted a complaint about the terms in which services were provided. The Tribunal concluded that such conduct was not caught by the provision and commented:

71 In our opinion, there is a gap or loophole in s 38M … Parliament may have intended to cover both the terms on which services were provided and the manner in which such contracts were performed. However, because s 38M(b) refers ambiguously to the “terms on which the other person is provided with those goods and services”, this seems to us to be a very strained interpretation of the section. The acuteness of the strain placed on the interpretation is made plain by the fact that counsel for the Respondents has referred us to legislation in other jurisdictions which shows that other Parliaments have been aware of the material distinction to be drawn between the terms on which a service is agreed to be provided and the actual performance of the service.

72 Section 38M(b) prohibits service providers from placing special, discriminatory conditions on their provision of services to transgender persons. In short, it seems to us that the prohibition relates to the terms and conditions on which services are offered to transgender persons. They must be no less favourable than the terms and conditions offered to other persons, in this case potential users of public bus services. Critically, the terms on which a service is provided are, unless later varied by agreement, settled before the service is provided. What happens after that is a matter of performance of the contract. In other words, it relates to the manner in which the service is actually provided.

60 That reasoning is not binding on us. However, if that analysis is correct, it would seem that the conduct about which Mr Spence complains does not fall within the scope of s 49 M(b) as it relates to the manner in which Dr Roberts provided him with services rather than the terms on which they were provided.

61 As this point was not raised by either party and the issue of the terms/manner dichotomy is yet to be determined by a binding authority, we proceed on the basis that the conduct complained of is capable of falling within the scope of s 49M(b).

Elements of Direct Discrimination

62 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5, an Appeal Panel of the Tribunal formulated a question which it said should be determined in all cases of direct discrimination. In the circumstances of this case that question is: Did Dr Roberts, on the ground of Mr Spence’s disability/ies treat him less favourably than she treated, or would have treated, a person without that disability/those disabilities, in the same circumstances or circumstances that were not materially different? As the Appeal Panel pointed out this test involves two elements, which it labelled ‘different treatment’ and ‘causation’.

63 In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65] and Martin v McKensey (No. 2) [2003] NSWADT 126 at [46] the practical difficulties of adopting the approach advocated by the Appeal Panel of determining less favourable treatment in advance of causation where that assessment relies on a hypothetical comparator, as opposed to an actual comparator was discussed. The conclusion reached was that in such cases it was more appropriate to first determine causation. Likewise, in this case as we have no evidence of an actual comparator we believe it is appropriate to first consider causation.

Causation

64 To succeed in his claim Mr Spence must establish that one of the reasons Dr Roberts treated him as she did was because he suffered from a disability.

65 On the basis of the facts we have accepted, it is difficult to see on what basis it could be maintained that one of the reasons Dr Roberts treated Mr Spence as she did, was ‘on the ground of’ his disability/ies. While presumably Mr Spence would not have been referred to Dr Roberts in the first place had he not suffered from some disability or claimed that he did, there is no evidence to suggest that one of the reasons Dr Roberts treated him as she did was because of his disability/ies. Mr Spence might not have felt ill and unable to continue after lunch had it not been for his various medical conditions, but it does not follow that one of the reasons Dr Roberts decided to extend the assessment beyond lunch or conduct the assessment in the way she did, as accepted by us, because he suffered from those disabilities.

66 Even if Mr Spence’s account of the assessment is taken at its highest, it is difficult to see how it could be maintained that one of the reasons he was allegedly hit/punched/refused refreshments/ thrown out without medical treatment, was because he had, or was thought to have, a disability/ies. It would appear from his submissions that Mr Spence believed that Dr Roberts was acting as a ‘mercenary for the insurance company’. By this we understand him to contend that she was acting as a ‘hired gun’ for Allianz and manipulated the assessment for the purpose of preparing a report favourable to Allianz. If accepted, (and we note that the factual matrix on which this hypothesis rests is not made out), it would not in our view assist Mr Spence. It might establish that Dr Roberts had acted unethically and unprofessionally and ground a claim of professional misconduct, but, of itself it does not establish that one of the reasons for that alleged treatment was because Mr Spence suffered from a disability/ies or was thought to have.

Less favourable treatment

67 Given our finding on causation, it follows that Mr Spence’s complaint must fail. In the interest of completeness however we will examine whether ‘less favourable treatment’ has been made out.

68 As we have no evidence of an actual comparator, a hypothetical construct must be employed, i.e. an able bodied person or a person without Mr Spence’s particular disabilities. That ‘person’ must be placed in comparable circumstances to those faced by Mr Spence, that is, having being referred to Dr Roberts by an insurer for the purpose of obtaining a medico legal report.

69 For the purpose of this exercise, we proceed on the basis that requesting a person who had been referred for a half-day medical assessment, to stay longer, constitutes a detriment or ‘less favourable treatment’. Dr Roberts’ evidence is to the effect that she usually knows in advance if testing in excess of four hours will be required and notifies the person to be assessed of this before the assessment. It is unclear from her evidence whether in the past she had found herself in the situation she confronted with Mr Spence, of having to advise a person referred to her for assessment on their arrival that their assessment would extend beyond four hours because of the need to conduct further tests.

70 We could not be satisfied on the limited evidence before us that in comparable circumstances Dr Roberts would have treated an able bodied person or a person without Mr Spence’s particular disabilities ‘more favourably’. We think it more likely than not that she would have asked our hypothetical construct to stay on beyond four hours if, on their arrival at the appointment she discovered that the time allocated for testing had been underestimated.

71 We also think it more probable than not that her conduct of the assessment overall would have been broadly consistent to that she described in relation to Mr Spence and accepted by us at paragraph [52] and [53] of these reasons.

72 In the interest of completeness we note that Mr Spence contends that he was not alone in being treated in an unprofessional and callous way by Dr Roberts. He asserts that had he been permitted by the Tribunal, to issue summonses on various complaint handling organisations and, had the resources to do so, it would have been revealed that Dr Roberts commonly conducted herself in the manner he alleged. Even if such evidence was available, and we note there is not a scintilla of evidence to support these allegations, it would not necessarily support Mr Spence’s claim of disability discrimination. Mr Spence needs to be able to establish that he was treated less favourably than a person/s in comparable circumstances who did not suffer from his disability/ies. Evidence of mistreatment by Dr Roberts of persons referred to her for assessment would not assist Mr Spence’s claim of less favourable treatment.

73 For these reasons we are not persuaded that the treatment afforded Mr Spence was ‘less favourable’.

Orders

Mr Spence’s complaint of discrimination on the ground of disability is not substantiated. Accordingly we must dismiss his complaint.