Sutherland v Tallong Park Association Incorporated (No.2)

[2006] NSWADT 287

Pending Appeal:

CITATION:	Sutherland v Tallong Park Association Incorporated (No.2) [2006] NSWADT 287
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Douglas Sutherland RESPONDENT Tallong Park Association Incorporated
FILE NUMBER:	051124
HEARING DATES:	22/08/2006
SUBMISSIONS CLOSED:	08/22/2006
DATE OF DECISION:	10/03/2006
BEFORE:	MacDermott T - Judicial Member; O'Sullivan M - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS:	Disability Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Battenberg v The Union Club (No 3) [2005] NSWADT 126 Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 Hall v Sheiban (1985) ALR 503 Mooney v Commissioner of Police (No3) [2003] NSWADT 189 Moxon -v- Westbus Pty Limited (EOD) [2000] NSWADTAP 12 Sebastian v Rail Infrastructure Corporation [2005] NSWADT 281 Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163
REPRESENTATION:	APPLICANT LT Grey, barrister RESPONDENT VRW Gray, barrister
ORDERS:	1. The respondent is enjoined from continuing or repeating the unlawful conduct; that conduct being the imposition of a requirement that in order to use the pool facilities at Tallong Park Estate a person must traverse a pedestrian pathway from the main car parking area a distance of approximately 75 metres to the pool; 2. To give the respondent time to comply, Order 1 does not come into effect for 42 days from the date of this decision; 3. Within 28 days of the date of this decision the respondent is to pay to the applicant the sum of $6000 by way of damages; 4. No order as to costs

1 On 1 June 2006, the Tribunal delivered its decision in Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163. The decision of the Tribunal was that the complaint of disability discrimination in the provision of goods and services was substantiated. In the event that the parties were not able to agree on an appropriate form of relief, the parties were directed to file and serve any evidence and submissions on the issue of appropriate relief. These proceedings are to determine that relief.

2 Damages: The Applicant seeks damages for non-economic loss he claims to have suffered in the following areas (1) deterioration in his health as a result of his inability to swim regularly without travelling considerable distances; (2) stress as a result of having to pursue his case with the Respondent’s management committee and ultimately before the Tribunal; (3) vilification at the hands of the committee and its supporters; and (4) destruction of his ability peacefully to enjoy his property at Tallong Park during his retirement.

3 In relation to the alleged deterioration in health, the applicant relies on his own evidence and that of his partner, to attest to the deterioration in his health as a consequence of the denial of access to the Tallong Park Estate pool (the pool). He states that he has been unable to maintain the same level of physical activity required by his condition by visiting other pools. As a consequence he says he is more tired and less mobile than when he was exercising regularly, he requires increased medication to control his pain and diabetes, and he is no longer able to enjoy the amenities of life he formerly enjoyed with his partner and friends. Under-cross-examination, the applicant stated that he did not use other pools to the same extent as the Tallong Park pool because of inconvenience, entry cost, time required to visit other pools some distance away, and the absence of the peace and privacy he enjoyed at the Tallong Park pool.

4 The applicant seeks damages for the stress he has suffered as a result of dealing with the respondent’s management committee in seeking to have vehicle access reinstated to the pool and in conducting these proceedings. The applicant states that he made a number of unsuccessful attempts to resolve the issue of vehicle access amicably with the respondent during the period of the complaint. The applicant also claims damages for what he described as vilification at the hands of the respondent’s management committee and its supporters. He refers to the manner in which the respondent management committee has portrayed him to members of the Tallong park community, and that it continues to treat him “as deserving anger and opprobrium from all members of the association”.

5 The applicant also claims, as part of the loss or damage he has suffered, a diminution in his peaceful enjoyment of his property. He says this is partly due to the lack of access to the pool, and partly due to the attitudes of other people and their hostility. He identified this hostility as coming from members of the management committee, other members of the estate, and people beyond the estate in other villages in the area.

6 The respondent disputes that there is a causal connection between any alleged deterioration in the applicant’s health and the respondent’s conduct. It also submits that the applicant has acted unreasonably in not seeking access to the respondent’s pool in some other way, or to pools elsewhere. On the issue of stress, the respondent submits that stress is a common experience for people involved in legal proceedings. On the alleged vilification at the hands of the committee members, the respondent disputes this is a result of the denial of access to the pool. The respondent also disputes that there had been any destruction of the applicant’s peaceful enjoyment of his property.

7 The Tribunal may order the respondent to pay damages for any loss or damage suffered by reason of the respondent’s conduct. The applicant bears the onus of proving, on the balance of probabilities, that he has sustained the loss he claims. The loss must be proven with a reasonable degree of certainty (Mooney v Commissioner of Police (No3) [2003] NSWADT 18. In these proceedings, the respondent was found to have indirectly discriminated against the applicant on the grounds of his disability by imposing a requirement that in order to use the Tallong Park Estate pool facilities, a person must traverse a pedestrian pathway from the main car parking area a distance of approximately 75 metres to the pool in breach of sections 49B and 49M of the Anti-Discrimination Act 1977 (NSW). The question is what loss or damage occurred by reason of that unlawful conduct. For such matters as injury to feelings, distress and humiliation, the appropriate level of damages can be difficult to determine (Hall v Sheiban (1985) ALR 503 at 543).

8 The applicant claims damages for deterioration in his health. However, it is difficult to identify whether any deterioration in the applicant’s health is attributable to the unlawful conduct in question. The brief report of Dr Lalak, tendered by the applicant, refers to increased weakness in his legs and impaired balance, as well as increased pain since mid 2004. However, the report does not give any reason for this change, and makes no direct mention of lack of exercise being a contributing factor. We have reviewed a number of medical reports that were filed by the applicant on 14 March 2006. These consistently emphasise the need for the applicant to obtain regular exercise for his polio and diabetes. The applicant submits that we should draw an inference that the deterioration in the applicant’s health is due to his inability to access the pool. This inference is said to arise from the fact that all the medical evidence points to the need for someone in the applicant’s position to exercise regularly, that the applicant attested he was not able to exercise as much as he would otherwise have done, because other pools were not as convenient and accessible, and that there has been a deterioration in his health. The respondent submits that factors such as age and other health issues may have caused the deterioration. The applicant bears the onus of showing on the balance of probabilities that he has suffered the particular loss he claims. In the absence of any clear medical evidence on this point, we are unable to find that any alleged deterioration in the applicant’s health is attributable to the respondent’s unlawful conduct regarding access to the pool.

9 We find that the applicant was upset and distressed as a consequence of the unlawful conduct of the respondent. We accept that the applicant was upset about not being able to access the pool and also as a result of his dealing with the respondent over the issue of access. We also find that the applicant was hurt and humiliated by what he saw as the disregard for his disability. He was distressed that his disability was questioned in these proceedings, despite the fact that the respondent indicated it did not dispute the extent of his disability. We find that any alleged vilification by the respondent’s management committee cannot be regarded as a loss suffered by reason of the unlawful conduct of the respondent, namely, the imposition of an unlawful requirement regarding access to the pool facilities.

10 We find that the applicant should be compensated for the loss of the enjoyment of his property attributable to not being able to access the pool, as this is a loss that arises by reason of the respondent’s unlawful conduct. We accept the applicant’s evidence that at the time of his purchase of a lot at Tallong Park Estate he was attracted to the proposed pool facilities. There are other swimming pool facilities in the surrounding area that were available to the applicant, however we accept that he could not use them as frequently or conveniently. The issue of mitigation is not strictly applicable in such a case (Mooney v Commissioner of Police (No3) [2003] NSWADT 18 at [45]). Even if it were, we find that the applicant has not unreasonably failed to mitigate his loss. We also find that the loss of enjoyment of his property arising from disharmony with others in the Tallong Park community is not a loss suffered by reason of the unlawful conduct of the respondent. We see this alleged loss as a consequence of individual perceptions regarding these proceedings and the respective positions adopted by the applicant and the respondent over the issue of access to the pool.

11 Taking into account all the relevant factors, we find that an award of general damages is justified in the circumstances to compensate the applicant for the distress caused to him, and the loss of the enjoyment of his property that occurred by reason of the respondent’s unlawful conduct. Accordingly, we order that the respondent pay the applicant general damages in the sum of $6000.

12 Access to the Pool. The question of how to deal with the issue of access to the pool raises questions about the scope of s 108(2)(b) and 108(2)(c) of the Act. These provisions enable the Tribunal to:

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) … order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant.

13 Counsel for the applicant noted that the two subsections appeared to address different circumstances, in that section 108(2)(b) refers to prohibiting the repetition of the unlawful conduct, while s 108(2)(c) is directed to redressing the loss or damage suffered. The applicant relies on s 108(2)(b) to prohibit the repetition of the unlawful conduct, and seeks the following orders:

The respondent shall, within 28 days of this order being made, take such action as is necessary to enable persons with a disability to access the swimming pool facilities at Tallong Park Estate without being required to traverse the pedestrian pathway from the main car park (a distance of approximately 75 metres).

The Applicant shall have leave to re-apply to the Tribunal for such additional orders as may be necessary to give effect to order 1 in the event that no action, or insufficient action, is taken by the respondent to comply with order 1 within the period of 28 days from the date of this order.

14 The respondent proposes in its written submissions several alternative avenues by which the applicant could obtain access to the pool. It particularised these as (1) the association providing a means of vehicle access to a poolside location; (2) the association providing a motorised scooter or wheelchair for use by persons such as the applicant between the car park and the pool; and (3) the association providing adequate resting facilities along the existing pathway to enable Mr Sutherland and any others who so desire to rest during the course of their transit from the car park to the swimming pool.

15 The respondent submits that the Tribunal should make orders that would be the minimum reasonably necessary to avoid the respondent contravening the Act, that is, if the respondent had provided these facilities initially then unlawful discrimination would not have been proved. The respondent submits that the minimum action required of it is to provide suitable facilities for resting between the car park and the pool. It relies on a draft report prepared by Professor Brew of the Department of Neurology, St Vincent’s Hospital Sydney, in which he canvasses other “medically acceptable solutions” as an alternative to driving to the pool:

One possibility would be to provide several public seats along the route. Mr Sutherland had already stated [applicant’s Damages Affidavit section D subsection 15 third paragraph; “It is true that over a period of about 90 minutes I traverse about 400 metres, with numerous stops including one stop on a park bench for half an hour”] that he is able to walk at least short distances. The disadvantage inherent in this solution though would be the necessity of ensuring that such seats were free for him to use as needed. However, I cannot say whether this is likely to be a problem, even if such seating were to be provided only for those affected by mobility disability.

The second solution would be to require Mr Sutherland to use a wheelchair or some form of self propulsion device to traverse the distance from his car to the pool. It is acknowledged that this would involve a certain amount of psychological distress at having to use such a device in public. Nonetheless, given Mr Sutherland’s age, it is likely, if not inevitable, that he will require such a device in the next years to come.

16 A determination of liability has been made in these proceedings. We are concerned now with the question of relief, and not the question of whether particular alternatives may or may not affect whether a contravention of the Act would be substantiated. In addition, these proposals for facilitating access to the pool do not prove any details that would enable us to make an order that such a course of action be implemented. The proposal for rest facilities provides little detail on such arrangements. Professor Brew’ s report is not based on any physical assessment of the applicant’s particular disability, and therefore can only be taken into account as a general comment on potential options, rather than commenting on the applicant’s particular situation. It also relies on a statement that the applicant was able to walk a certain distance over a considerable length of time. The agreed statement of facts in these proceedings indicates that the respondent did not disputed that the applicant attempted to walk the required distance to the pool, but found it too difficult and painful, and therefore ceased using the pool. The applicant filed a number of medical reports about his disability, and no contrary medical evidence was presented. A report filed by the applicant from Dr C Yiannikas dated 12 September 2005 states:

He has difficulty walking as a consequence of back and leg pain caused by compression of the nerve in his spine. His baseline strength has been compromised by his polio. I think that walking even short distances would be a strain on him even allowing for the availability to stop and sit.

17 The only other evidence on the point of the applicant’s capacity to walk any distance was the statement filed on behalf of the respondent by Mrs Thatcher, in which she claimed that she had seen him walking up and down the steep driveway on his property. However, at the hearing on the question of liability, Mrs Thatcher revealed that her statement was incorrect, and that she had never personally seen him walking up his driveway. She stated that she realised the statement was incorrect at the time she signed it, but did not think she could correct it. She then produced the handwritten notes she sent to the respondent’s solicitor for the purpose of preparing her statement, which did not include any claim that she had seen the applicant walking up his steep drive. In the circumstances, the Tribunal gave no weight to this statement and proceeded on the basis of the agreed facts that the applicant could not walk the distance to the pool. We do not think it is appropriate to now make an order that is based on the applicant walking to the pool, even with the possibility for resting along the way. Such a proposal appears to be contrary to the medical evidence, which was not disputed by the respondent in these proceedings.

18 The respondent also proposes as an alternative that a motorised scooter be made available to enable the applicant and others to traverse the distance between the car park and the pool. We do not propose to make any order regarding the provision of a motorised scooter, as there is no evidence on how this would be implemented. The respondent also raises the alternative of using a wheelchair. In determining the question of liability, we accepted that the applicant did not require the use of a wheelchair for any other purpose. These proceedings were not about whether it was reasonable or otherwise that the applicant use or not use a wheelchair. The issue was whether the requirement that a person must traverse a pedestrian pathway from the main car parking area a distance of approximately 75 metres to the pool in order to use the pool facilities, was a contravention of the Act.

19 Our conclusion is that, in the circumstances, the appropriate order is an order enjoining the respondent from continuing or repeating the unlawful conduct. In Moxon -v- Westbus Pty Limited (EOD) [2000] NSWADTAP 12 the Appeal Panel observed that it is not within the Tribunal’s power to make orders about how a respondent should conduct its business in the future, except to say that it should not be conducted in a way that is unlawful under the Act. In that case, Mr Moxon sought relief in the form of an order that the respondent ensure certain bus services were accessible to the complainant within 6 months of the Tribunal’s judgment. The Tribunal noted at [94 – 95]:

Incidentally, the relief sought by the complainant is not within the Tribunal’s power to order. In Waters v Public Transport Corporation 1991 EOC 92-390 Brennan J noted that the order of the Anti-Discrimination Board of Victoria to "refrain from implementing the driver-only tram proposal" was open to objection because it did not “restrain specific conduct which might have been found to amount to the refusal of a service or the imposition of a requirement or condition.” Brennan J went on to say that:
... more significantly, it purports to order the Corporation to maintain a level of staffing for its trams as the means of maintaining the services needed by disabled people. I find no basis in the Act for an order compelling the performer of a service to retain or employ staff to maintain the level of service previously provided (at 78,604).
These comments apply equally to the situation under the ADA. Westbus may decide to comply with an order preventing any further unlawful discrimination by not running buses on those particular routes until the impediments to the roadway are addressed or it might decide to develop new, accessible bus routes. In either case it would not be engaging in unlawful conduct.

20 There are a number of reasonable options by which the respondent could comply with an order enjoining it from continuing the unlawful conduct. A range of options was canvassed during the course of the hearing on the question of relief. We set these out not as an exhaustive list, but as examples of potential options available to the respondent to comply with the order. These include, but are not restricted to: construction of a gravel road from the car park to the swimming pool complex as set out in the estimate from Mr Don Luke in February 2005 or the quote in June 2005 from Cooper Earth Moving; providing vehicle or motorised scooter access via the maintenance road with appropriate safety measures in place; or providing a motorised scooter. A number of these options may take some time to implement. Therefore, to give the respondent time to comply, the order enjoining the respondent from continuing the unlawful conduct does not come into effect for 42 days from the date of this decision.

21 The Applicant also sought an order that it have leave to re-apply to the Tribunal for such additional orders as may be necessary to give effect to this proposed order in the event that no action, or insufficient action, is taken by the respondent to comply. Sections 111, 113 and 114 of the Act deal with compliance with orders of the Tribunal and the enforcement of such orders. We do not propose to make any further order in these circumstances.

22 Apology. The applicant seeks an order that the respondent publish an apology to the applicant (in a form approved by the applicant) and that the respondent be directed to provide a copy of the apology by pre-paid registered post to each and every lot owner and resident of the Tallong Park Estate. The respondent opposed the order of an apology as inappropriate in the circumstances and not serving any useful purpose. The Concise Oxford Dictionary defines apology as a “regretful acknowledgement of fault or failure; assurance that no offence was intended; explanation, vindication”.

23 The applicant claims the respondent has misled members and residents of the estate as to the outcome of the case and the costs, and that as a consequence a significant amount of anger has been directed towards him in the community. He expressed his concern with the interpretation given to the proceedings and wants a balanced account to be provided. At the hearing on the issue of relief the Tribunal noted that although the relief was still to be determined, the Respondent’s President’s Letter dated 8 June 2006 stated that the decision of the Tribunal on 1 June 2006 “includes the TPA providing road access from the current disabled car park to a new parking facility to be built adjacent to the pool”.

24 In our view an apology that takes the form of an expression of regretful acknowledgement of fault or remorse for the unlawful conduct would not serve any purpose in these circumstances. In these proceedings, the respondent argued that it is not covered by the Act, and continues to maintain that position. We do not order that the respondent publish an apology. However, we would recommend that the respondent take steps to inform its members in writing of the terms of the orders made by the Tribunal in these proceedings.

25 Continuation of previous order. The applicant seeks an order that the respondent be restrained from carrying out any construction affecting access to the gravel area bounded by the pathway behind the swimming pool complex, owned by the respondent, pending further orders of the Tribunal. In its written submission on the question of relief, the respondent renewed its previous undertaking not to carry out any work on the gravel area pending the ultimate determination of these proceedings. We presume the respondent’s undertaking is intended to continue until any appeal is determined.

26 On 10 May 2005 an interim order was made restraining the respondent from carrying out work that would affect access to the gravel area adjacent to the pool, “pending determination of the subject matter of the complaint”. As these proceedings have now determined both the question of liability and relief, the subject matter of the complaint has been determined, and the function of the interim order is at an end. We have ordered that the respondent is enjoined from continuing or repeating the unlawful conduct. A number of options by which the respondent could comply with that order have been canvassed. The respondent has also renewed its undertaking. In these circumstances, we do not propose to make any further order.

27 Costs. Section 110 of the Act provides that each party is to pay his or her own costs. An exception is provided in s 110(2) where the Tribunal is of the opinion that in a particular case there are circumstances that justifies it doing so. In Sebastian v Rail Infrastructure Corporation [2005] NSWADT 281 at [99] the Tribunal reviewed the authorities on the question of costs and concluded “what those cases demonstrate is that in order to justify awarding costs there must be something over and beyond a normal course of circumstances”(See Battenberg v The Union Club (No 3) [2005] NSWADT 126 at [8] and Borg v Commissioner, Department of Corrective Services [2003] NSWADT 35 at [21]). The circumstances that may be relevant to this question include: whether the applicant's costs exceed or are disproportionate to the amount of damages awarded; the manner in which the parties have conducted the proceedings; whether the case raises any important public policy or public interest considerations; and whether the proceedings determine or clarify an important question of law.

28 The applicant claims that once he was denied vehicle access to the pool he had to either accept that loss, or seek to re-instate that access by commencing these proceedings. The applicant says that the respondent could have adopted a conciliatory approach and resolved this matter long ago. The applicant claims that his costs are comparable to the respondent’s costs (as stated in the Notice of Annual General meeting for 18 June 2006 as $48,290.80), although he did not provide an exact figure. He claims that he had to go to all this trouble and stress because of the intransigence of the respondent, whereas the issue of access to the pool could have been settled by some simple solution. The respondent submits that it was not unreasonable of it not to agree to a compromise result when it was arguing that pursuant to s 57, it was not subject to the operation of the Act. The applicant’s statement filed on 6 July 2006 refers to a number of opportunities for the respondent to resolve the matter by mediation or negotiation. His statement also discloses various offers made. He states that he made an unconditional offer to loan the respondent the sum of $2000 interest free to reinstate the vehicle access in accordance with the quote he obtained. He also discloses that, at the time of the hearing on the issue of liability, the respondent offered to allow him vehicle access to traverse the golf course via the service access, provided he purchase his own golf buggy and without safety provisions.

29 We do not find that the circumstances justify an order as to costs. The applicant’s principal complaint is that the respondent would not negotiate an outcome. Although parties can be encouraged to resolve the issues informally, an informal settlement by negotiation relies on a willingness of both parties. The respondent asserted that the Act did not apply to it in its capacity as an association. We have found otherwise. However, the respondent chose to have that issue tested, rather than settle the matter earlier. The proceedings also raised other issues such as whether the respondent as an association provided a service within the terms of the Act, and to whom that service was provided, as well as the capacity of the applicant to bring the proceedings given that he purchased his Lot in the estate through a corporate entity, which were important unresolved legal and factual questions in these proceedings.

30 Stay. The respondent has lodged an appeal against the Tribunal’s decision on the issue of liability. As a consequence, the respondent requested that we reserve our decision on relief until after the appeal is determined. Alternatively, if we were to go ahead with a decision on the issue of relief, it sought that a stay of the orders be granted. We do not think it is appropriate that we delay our decision on the issue of relief until after any appeal is heard. We also do not consider it appropriate to grant a stay of our decision on the question of relief. Any decision to stay the orders made is a matter for the Appeal Panel.

Orders

1. The respondent is enjoined from continuing or repeating the unlawful conduct; that conduct being the imposition of a requirement that in order to use the pool facilities at Tallong Park Estate a person must traverse a pedestrian pathway from the main car parking area a distance of approximately 75 metres to the pool.

2. To give the respondent time to comply, Order 1 does not come into effect for 42 days from the date of this decision.

3. Within 28 days of the date of this decision the respondent is to pay to the applicant the sum of $6000 by way of damages.

4. No order as to costs.