Thorn v Serco Australia Pty Ltd
[2005] FMCA 7
•14 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THORN v SERCO AUSTRALIA PTY LTD | [2005] FMCA 7 |
| HUMAN RIGHTS – Disability discrimination – applicant alleges discrimination on basis of disability – claim that not permitted to board buses with assistance animal – permit to travel on public transport with dog issued by Passenger Transport Board of South Australia – whether employer vicariously liable – applicant not at a bus stop – no discrimination on ground of disability. |
Human Rights & Equal Opportunity Commission Act 1986 (Cth), ss.46PA, 46PH, 46PO
Disability Discrimination Act 1992 (Cth), ss.5, 6, 9, 24, 123
Evidence Act 1995 (Cth), s.140
Federal Magistrates Act 1999 (Cth), Div. 5
Federal Magistrates Court Rules 2001, r. 21.02(1)(b)
Purvis v State of New South Wales & HREOC (2003) 78 ALJR 1
Tate v Rafin [2000] FCA 1582
| Applicant: | JAMES LEE THORN |
| Respondent: | SERCO AUSTRALIA PTY LTD |
| File No: | AZ84 of 2004 |
| Delivered on: | 14 January 2005 |
| Delivered at: | Launceston |
| Hearing dates: | 3 & 4 November 2004 |
| Judgment of: | Roberts FM |
REPRESENTATION
| The Applicant was not represented by a lawyer |
| Counsel for the Respondent: | Mr. A. Short |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
That the Application filed by JAMES LEE THORN on 29th April 2004 bearing number Z84 of 2004 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ84 of 2004
| JAMES LEE THORN |
Applicant
And
| SERCO AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Background & Applications
In this matter the Applicant is JAMES LEE THORN (“Mr. Thorn”) and the Respondent is SERCO AUSTRALIA PTY. LTD. (also referred to in the documentation as SERCO GROUP PTY. LTD.). In these Reasons I shall refer to the Respondent as “Serco”.
Mr. Thorn lodged a complaint against Serco with the Human Rights & Equal Opportunity Commission (HREOC) dated 9th December 2002 in which he complained about alleged disability discrimination on 10th December 2001 (“the first incident”). He subsequently sought to amend the complaint to include another allegation of disability discrimination on 14th September 2003 (“the second incident”). HREOC accepted that amendment pursuant to Section 46PA(1) of the Human Rights & Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”).
On 1st April 2004 the President of HREOC wrote to Mr. Thorn to inform him of the Commission’s view that there appeared to be no reasonable prospect of the matter being resolved through conciliation and that the complaint was terminated pursuant to Section 46PH(1)(i) of the HREOC Act.
On 29th April 2004 Mr Thorn filed an application seeking the following orders:
“1. An order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination.
2. An order requiring the Respondent to pay damages by way of compensation in the amount of $10,000 to myself and $5,000 to my carer (Belinda Jamieson) for any loss or damage, hardship etc, suffered because of the conduct of the respondent, or as the Court orders.
3. An order requiring the respondent to amend the training manual/code of conduct for all bus drivers to include Assistance animals amongst the information regarding Guide Dogs.”
Serco filed a defence on 2nd June 2004.
Material relied upon
The hearing of this matter took place on 3rd and 4th November 2004 and I reserved my decision.
The Applicant relied upon the following:
a)His handwritten affidavit filed with his Application on 29th April 2004.
b)A typed affidavit filed 17th September 2004.
c)An affidavit by his carer, Belinda Kay Jamieson (Ms. Jamieson) filed 17th September 2004.
Serco relied upon the following::
a)an affidavit filed 1st October 2004 from the bus driver involved in the first incident, Maxwell John Darke (“the first driver”)
b)an affidavit filed 1st October 2004 from the bus driver involved in the second incident, Tony Mastrogiacomo (“the second driver”)
c)an affidavit filed 1st October 2004 from Bronwyn Schoen, the Director of Guest Services with Serco (“Ms. Schoen”)
I was also provided with copies of maps as exhibits to assist me to understand what happened during the first and second incidents.
The Law
The termination of Mr Thorn’s complaint by the President of HREOC gives this Court jurisdiction to deal with the Application subsequently filed by him on 29th April 2004. Section 46PO of the HREOC Act provides that if a complaint is terminated in accordance with that section any person who was an affected person in relation to the complaint may make an application to the Federal Magistrates Court alleging unlawful discrimination by one or more of the Respondents to the terminated complaint.
Because Mr. Thorn has not taken action against either bus driver personally, but has instead taken action against their employer, it is clear that he contends that Serco is vicariously liable for the actions of the two bus drivers.
I am therefore of the view that, in order to succeed in his action under the Disability Discrimination Act 1992 (Cth) (“the DDA”), the Applicant needs firstly to convince me that he was discriminated against by one or both of the drivers and, further, that Serco is vicariously responsible for the actions of those employees.
Section 5 of the DDA provides:
5 Disability discrimination
(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
It is clear that in relation to direct discrimination there must be less favourable treatment “because of the aggrieved person’s disability”. In short, there must be a causal link between the less favourable treatment and the disability.
Indirect discrimination applies when people with and without a disability receive the same treatment, but the effect of such treatment results in a disadvantage to, or exclusion of the person with a disability in a manner that is not reasonable.
Section 6 provides:
6 Indirect disability discrimination
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
It is clear that Mr Thorn is alleging that he was refused bus services when accompanied by his dog. In this regard he appears to be relying upon Section 9 of the DDA. It states:
9 Disability discrimination—guide dogs, hearing assistance dogs and trained animals
(1) For the purposes of this Act, a person (discriminator) discriminates against a person with:
(a) a visual disability; or
(b) a hearing disability; or
(c) any other disability;
(aggrieved person) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses, or is accompanied by:
(d) a guide dog; or
(e) a dog trained to assist the aggrieved person in activities where hearing is required, or because of any matter related to that fact; or
(f) any other animal trained to assist the aggrieved person to alleviate the effect of the disability, or because of any matter related to that fact;
whether or not it is the discriminator’s practice to treat less favourably any person who possesses, or is accompanied by, a dog or any other animal.
(2) Subsection (1) does not affect the liability of a person with a disability for damage to property caused by a dog or other animal trained to assist the person to alleviate the effect of the disability or because of any matter related to that fact.
In addition Section 24 of the DDA provides:
24 Goods, services and facilities
(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b ) in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.
Section 123 provides for the vicarious liability of corporations. The first two sub-sections provide as follows:
123 Conduct by directors, servants and agents
(1) If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
The nature of discrimination under the DDA was considered by the High Court in Purvis v State of New South Wales & HREOC (2003) 78 ALJR 1. Commencing at paragraph 198, their Honours Gummow, Hayne and Heydon JJ said:
198. In so far as those instruments were said to bear upon the proper construction of the Act, however, it is necessary to notice an important respect in which the subject of disability discrimination differs from some other forms of discrimination. Central to the operation of the Sex Discrimination Act and the Racial Discrimination Act 1975 (Cth) …… is the requirement for equality of treatment. A central purpose of each of those Acts is to require that people not be treated differently on the ground of sex or race. Difference in sex or race is identified as a generally irrelevant consideration.
199. By contrast, disability discrimination legislation necessarily focuses upon a criterion of admitted difference. The abilities of a disabled person differ in one or more respects from that range of abilities which is identified as falling within the band described as "normal". It follows that disability legislation must be understood from the premise that the criterion for its operation is difference. That has important consequences, not only for the lessons that may be learned from the way in which other legislatures or deliberative bodies have identified the problems that should be considered, but also for the proper understanding of the solutions that have been devised by those other bodies to answer the problems identified.
200. Since the Act was enacted in Australia, legislation enacted in other jurisdictions has sought to give effect not just to a principle requiring equality of treatment but to what is sometimes called a "substantive conception of equality", in which the purpose is "to prevent or compensate for disadvantages". (Many of the international instruments to which we were taken must also be understood in that way.)
201. Concepts of "difference", "disability" and "disadvantage" all depend upon comparisons. They assume that there is a person, or a group of persons, with whom it is useful and relevant to draw the comparison which is implicit in describing one person as "different", or "disabled", or "disadvantaged". Obviously, the utility and relevance of the comparison depends upon why it is being made. Different comparisons may have to be drawn according to whether the purpose is limited to ensuring that persons situated similarly are treated alike, or the purpose is wider than that. In particular, if the purpose of legislation is to ensure equality of treatment, the focus of inquiry will differ from the inquiry that must be made if the relevant purposes include ensuring equality in some other sense, for example, economic, social or cultural equality. (Footnotes omitted)
It is clear that, as the applicant, Mr. Thorn must prove his case on the balance of probabilities – see Section 140 of the Evidence Act 1995 (Cth).
The evidence
All the witnesses referred to above gave evidence and were cross-examined.
In his affidavit filed 29th April 2004 with the Application, Mr. Thorn said the following, inter alia:
·I suffer from uncontrollable and unpredictable epileptic seizures and I require an assistance animal to assist me with my disability
·In February 2001 I was issued with a photographic ID card from the Passenger Transport Board, along with a permission to travel letter. This card is reissued every 12 months, along with the permission letter.
·On Monday 10th December 2001 I had to catch a bus to Arndale Shopping Centre to get to the chemist before it shut so I could get my scripts for me epileptic medication. As I was hailing the bus at my stop the bus driver stopped the bus, pointed at the dog and shook his head and started driving off. I open handed slapped on the doors of the bus as he drove off, saying that my dog was allowed but the driver continued to drive off, leaving me at the stop. As it is life-threatening to me if I don’t have my medication, when I walked back home to tell my carer what had happened she decided that she would have no choice but to drive me to the chemist despite the fact that her car was out of registration. As we were driving to Arndale Shopping Centre we approached the intersection of Day’s Road and Regencey (sic) Road, the same bus that refused to pick me up was on its return route to the city. I asked my carer if she could pull over and let me out so I could hail the bus and show the driver my ID card and to let him know that I do have permission to travel with my dog. My carer pulled into what is now a Bridgestone Tyre Centre on the corner of Day’s Road and Regency Road, I got out with my assistance dog, told my carer to continue to the chemist and I would wait here for her to get back. I crossed the road to the bus-stop on Day’s Road and waited for the bus. As the bus came around the corner I started to hail it, it wasn’t showing any signs of stopping again so I stepped out onto the road and held up one hand in a stop signal. As the bus approached me it slowed down but at the last minute the bus driver took his foot off the brakes and knocked me and my assistance animal down. I did not know but my carer hadn’t gone to the chemist but she had done a u-turn and was parked up just from the bus stop waiting for me, as there was still time to wait for me then drive to the chemist. I was knocked unconscious for approximately 8-10 seconds, and my assistance dog had his neck-chain ripped off over his head, he was dragged under the bus and spat out the back. When I stood up the bus driver drove at me again and I only had time to quickly put up both my hands to protect myself before the bus hit me again. When I quickly put my hands up to protect my face the dog lead with his neck-chain still attached (as it was ripped off over my dog’s head on the impact of the driver running me over the first time) flung up in enersha (sic) and hit the bus windscreen (as it is impossible for the lead to come off over my wrists – it is designed as a very tight fit on my wrist so it won’t come off in a seizure etc.) as the bus ran me over for a second time. This time though, the bus driver didn’t stop but continued driving the bus forward even after he knocked me down. I had to roll into the centre of the road towards the oncoming traffic as if I didn’t the bus would’ve run me over with its front wheels. On witnessing the whole event my carer then drove her car on an angle across the lane trying to stop the bus as the Police needed to be called and the driver was driving off. Even though she tried to block the lane the bus driver continued to drive straight at her and was going to plough into her as well as he was accelerating not stopping, in endangering her life as well. As the bus was almost about to smash into her she quickly tried to get out of the way but it was impossible to do a u-turn (due to the angle she was on) and she smashed into the gutter on the other side of the road. Her suspension was severly (sic) bent …., her tyre was popped and her mag was smashed, and the bus driver just continued off into the city. The only way we could call the Police was to get back home (which was only 2 streets away) as there wasn’t any phone boxes and we don’t have a mobile phone. My carer got me up off the road and into her car, got my dog off of the footpath and did her best to drive back home which was nearly impossible as her tyre was popped and there was no steering which caused the car to veer all over the road. Once we’d gotten home she immediately helped me inside, carried my dog inside and rang the Police. ……
·On the 14th September 2003 yet again I was not picked up by another driver and left at the bus stop. I hailed the bus but it did not stop. When I complained to Serco about this they questioned the driver and the driver claimed that he did not stop because I was not at the bus stop and he said that he wouldn’t have stopped anyway because I had my dog with me and dogs are not allowed on buses. I was at the bus stop, there is the yellow bus stop post, a bench to sit on then a tree. I was standing (on the kerb in full view) between the seat and the tree, hailing the bus.
·Serco claimed to be educating their drivers about assistance animals but the drivers are claiming they know nothing about them and this is contionally (sic) causing me great stress which aggravates my epileptic condition. Still to date I constantly have major problems (4 years since first receiving my P.T.B. ID card and permission to travel letters) and I can prove this outright.
In his affidavit filed 17th September 2004, Mr. Thorn expanded upon his evidence in relation to his disability and in relation to the fact that he has a special permit enabling him to take his dog (Buddha) on public transport in Adelaide. He has had such a permit since early 2001. His affidavit annexes copies of various permits that have been issued to him from time to time. Those permits include photographs of himself and Buddha.
His affidavit states that Buddha, a Staffordshire bull terrier was trained by his carer to alert him to the likelihood of a seizure and to assist him during such a seizure.
Mr. Thorn’s affidavit filed 17th September 2004 repeats much of what was in his affidavit filed 29th April 2004. However, it is worth setting out in some detail some of the relevant matters in that affidavit. They are:
a)On Monday 10th December 2001 Mr. Thorn needed to obtain more epilepsy medication. He did not have any Valium for his night dose and he knew that it was dangerous to stop taking Valium suddenly. He and Ms. Jamieson discussed matters and, because they did not have enough funds for two bus fares it was decided that he should go to the chemist.
b)He walked to the nearest bus stop with Buddha, believing that the next available bus was due at 6.57 p.m. That was the last bus that would take him to the chemist before it closed at 8.00 p.m.
c)He left at least five minutes early to make sure that he did not miss the bus. He waited for about twenty minutes until approximately 7.10 p.m. He assumed that he had missed the bus and started to cross Pym Street, heading back towards his flat when he saw the bus coming from the Harrison Road corner. He walked back to the bus stop and waited.
d)As the bus approached, Mr. Thorn hailed it. He was the only person waiting at the stop. The bus driver stopped at the stop but did not open the doors. The bus driver pointed to his dog and shook his head. He could see the driver clearly through the windows in the front door. The driver then proceeded to drive off and he slapped the front half of the double front door with an open hand. He yelled out words to the effect “He is allowed”. The driver continued to accelerate and he slapped the other half of the double door and yelled words to the effect “He is allowed, stop please stop”
e)The bus continued to pull away from the bus stop and Mr. Thorn slapped the first passenger window, yelling even louder for the bus to stop. As the bus passed he called the driver a “dickhead” and kicked the rear bumper of the bus with his sandshoe as it went passed. He did that out of frustration and desperation about getting his medication.
f)The bus stopped at the junction of Pym Street and Days Road and indicated to turn right. Mr. Thorn was in the process of crossing Pym Street adjacent to the bus stop in order to go home. He watched the bus turn right into Days Road. He did not approach the bus at the Days Road junction, which was approximately thirty meters from the bus stop.
g)Mr. Thorn was very concerned about having no medication and went back to his flat to tell Ms. Jamieson. She decided to drive Mr. Thorn to the chemist, even though her car was unregistered and her licence had expired.
h)Ms. Jamieson and Mr. Thorn drove towards the chemist at Arndale along Days Road. As they approached the intersection of Days Road and Regency Road, Mr. Thorn saw a bus which he thought was the bus with the driver who had refused to pick him up. At that time it was on Regency Road waiting to turn right into Days Road in the opposite direction from which Ms. Jamieson and Mr. Thorn were travelling
i)Mr. Thorn asked Ms. Jamieson to pull over and let him out so that he could hail the bus. His affidavit states: “I intended to show my travel authorization card and let him know that I did have permission to travel with my dog on the bus and that I would be complaining about him.”
j)Ms. Jamieson stopped the car and Mr. Thorn and Buddha got out. Mr. Thorn told Ms. Jamieson to go onto the chemist and come back for him. He crossed the road to the bus stop on the Eastern side of Days Road and waited there for the bus. When the bus came around the corner, he hailed it. Because it was not giving any indication of slowing down, he stepped onto the roadway and held up his left hand in a stop signal.
k)As the bus approached Mr. Thorn it slowed down almost to a stop, “but at the last second the driver took his foot of the brakes.” The bus lurched forward and knocked him over. He fell on the road. He stood up again. Buddha had slipped out of his lead and was not with him. Mr. Thorn says the bus moved at him again and instinctively he put his hands up quickly to protect his face. He says: “This sudden movement caused the lead and neck chain to hit the bus windscreen.”
l)The bus kept moving forward and knocked Mr. Thorn down. He rolled towards the middle of the road to get out of the way of its wheels, not looking to see if any other vehicles were coming. He then stood up straightaway, fearing that he may be hit by another vehicle.
m)Mr. Thorn then saw a car that he recognized as Ms. Jamieson’s car moving into the path of the bus. Prior to that, he had not been aware that Ms. Jamieson was still in the area. He says that the bus accelerated towards her car and that her car then moved quickly towards the other side of the road to avoid a collision. It collided with the gutter on the western side of Days Road. The vehicle was damaged.
n)The bus driver continued to drive away towards the city. Ms. Jamieson managed to turn the car around and Mr. Thorn got in with Buddha. He says that Ms. Jamieson tried to drive the car home but with great difficulty because of the damage to the vehicle.
o)The Police were called and insisted that he went to hospital.
p)His claim for injuries from the collision with the bus has been settled and he makes no further claim for compensation for that injury.
q)In 2003 Ms. Jamieson and Mr. Thorn moved to Kent Street, Mansfield Park, which is an area that is also serviced by buses operated by Serco.
r)On Sunday 14th September 2003, Mr. Thorn walked to a bus stop to catch a bus to the Arndale Shopping Centre. Buddha was with him and the bus was due at 8.44 p.m. He usually waits at bus stop 26, but because he was early, he walked towards stop 25A in Liberty Grove. As he was approaching that stop, he heard the bus coming in the distance so he ran the rest of the way to the stop.
s)Mr. Thorn waited for the bus between two trees to the North of the bus stop post. He had his pass with him and he hailed the bus as it approached. It slowed down, but then accelerated and passed by without stopping to pick him up. He says that he believes that the driver saw the dog.
t)That evening he made several calls attempting to register a complaint with Serco, without success. The following day Ms. Jamieson made a telephone call to Serco to complain on his behalf.
Essentially, Ms. Jamieson’s affidavit, which was also filed on 17th September 2004, confirms Mr. Thorn’s version of events in relation to the first incident and in relation to Buddha’s training and abilities.
The first driver filed an affidavit on 1st October 2004 in which he stated the following:
a)He commenced driving buses with Serco in September 2000. He says that he went through a two week induction course which dealt with such matters as dealing with customers and customers with special needs. He says that he was a courteous driver and he understood that he should treat all customers with respect and assist anyone who seemed to have special needs.
b)He was seriously affected by the incident involving Mr. Thorn in December 2001. As a consequence he took time off work and also sought medical treatment. He saw a counsellor and was diagnosed with post traumatic stress. He did not wish to drive buses any more.
c)After the incident in December 2001 he went back to driving buses on two or three nights. He had driven through a red light and was not coping. He says that his mind was not on the road and he was scared that he was going to run into Mr. Thorn again. He ceased his employment with Serco in about early April 2002 and has not worked again as a bus driver. He moved interstate for a period, and one of his main reasons was that he was worried that Mr. Thorn would come after him. He is still apprehensive about Mr. Thorn.
d)At no stage did Mr. Thorn show him any permission card, nor did he refer to any such card.
e)Issues of disability did not play any part in relation to his behaviour. Fear played a large part in relation to it and he states “I was scared of this bloke”.
The first driver’s affidavit annexes a copy of a transcript of a taped interview with Police on 20th December 2001 in relation to the first incident (“the transcript”). That document is a lengthy document, which the first driver says “fairly sets out matters concerning the incident with Mr. Thorn”.
Below are quotes from the first driver’s statements to Police as set out in the transcript:
The first time I saw him was on Pym Street. He was ten metres prior to stop sixteen there. I was heading in a westerly direction. And. Ah. He was running flat out virtually, with a brindle bull terrier dog and I just thought it was someone running along with their dog, so I did not pay much attention to him. Then I pulled up to the intersection. A ‘T’ bar intersection on Days Road and Pym Street, I was looking at traffic coming both ways. There was a fair bit of traffic crossing there at that time. He started bashing on the door with his fist and then started kicking it with both feet virtually and kicking the door in and smashing it. He still had the dog held on his left hand and punching with his right and kicking with both feet. At this stage, I pointed to him and that. Just pointed at his dog, basically and shook my head and said, “No dog on here now”. At that stage he said, ‘I’m going to get you, I am going to kill you.” And I took off as quick as I could. He had a psychotic look on his head and he was. Um. Half crazy basically. There was no way I was letting a bull terrier or even opening the door to anyone with a bull terrier at that stage. Ah. So I turned right onto Days Road and continued to Arndale. I was running four to five minutes late at the time as well, so even if he. Uh. If I’d had of been on time he wouldn’t of even seen the bus.
Well first of all, I think I should tell you I went to Arndale I finished the trip to Arndale. I radioed into the Operator. I have got it here on the log and that’s eighteen fifty-two. I should have been there at forty-eight, as I say I was running about four minutes late, so I had to quickly turn around. As I was you know, turning around, I made the radio call. Um. Asking for assistance. Um. Asking for either the Transit Police or Police to come in. I basically said, “There’s a psycho up on stop sixteen who’s kicking in the doors of the bus. Uh. Can I get some assistance please?” Now. Um. No-one showed up at this stage and that and by the time I got to Regency Road and Days Road, I was at the intersection there. I noticed a car. It was a white XE Falcon which was parked on a forty five degree angle to the gutter, half blocking off my lane. Ah. Now that one had me worried immediately. Straight away, cause I saw the bloke. I couldn’t see his dog at that stage and that, but I saw him leaning in the window at the front. Well not leaning in but leaning over the window at the front talking to a person or people that were inside. I didn’t know how many people were in the car. Um. When he seen the bus, he moved to the white line in the centre of the road blocking more of the road off and that. As I came around the corner, I stopped and he had the dog in one hand by the collar. He had the chain on the other and just started smashing at the window, front window of the bus. He hit it five to six times and I moved the bus a metre forward knocking him down on the ground, but if it was a normal person. Well lets put it this way, if it was me, I wouldn’t have fallen over. I would have been pushed back a bit, but he fell down and almost crawled under the bus a bit and then he got back up and then he hit the window another twice before it shattered. It smashed the front window and then he just repeatedly kept hitting it another four or five times. Ah. At this stage I was looking into the car because I was thinking, I am being set up here. I thought he had mates, that you know were going to kick the doors of the bus in. I couldn’t because of the angle of the car, if you could imagine the car at a forty five degree angle you can’t see the driver or whose in it. I think it had a black louvre on the back, so I did not really know how many people were in this car. And it is a bit hard to sort of, if you can imagine everything happens at one second you’ve got someone smashing into your window and I was trying to look into the car to see how many people were in there. While he was smashing the window for a second time the car moved around and over to the other side of the road and I still can’t remember who was in it. I cannot remember. I have heard there was a woman inside the car. Um. But I still can’t remember actually seeing who was in the car. But I just took off after that. I am sorry, I sort of got off the track there a bit but after he was knocked down that second time, he rolled out to the right hand side and the car not being there anymore gave me enough room to take off. Then I drove off and thought, I have got to press one of the emergency buttons. We have got two of them in the bus and I hit the wrong one. One of them just cuts the radio out so you don’t have to use your hands and they can hear everything that you say. Um. And the other one is a call police sign that flashes the lights on and off. It actually cuts the motor as well. The bus started dying at that stage so I was getting into a bit of panic mode and that. And I hit it again and then the bus had power again so I took off down the street and I was only probably fifty yards away when I noticed the car was chasing me. Ah. First of all it was on the right hand side and then I looked in the mirror. I was trying to get the number. I was swerving over so that it couldn’t overtake me and then I noticed it trying to get up on the inside kerb, side and that it was trying to get between the bus so I moved over again without hitting the car, because it was still at the back of me. … I probably swerved about three or four times…. Radio control in the meantime was telling me to just keep on going and that, so basically get out of there…. I was, fearing for my life at the time….. I did not know how many people were in this car. Um and basically thought, I was going to get my head beaten in or even worse killed.
During his interview with Police on 20th December 2001, it was put to the first driver that Mr. Thorn had been trying to show his pass to him. His response was that at no time did Mr. Thorn show him any pass and that all he had in his hand was the chain.
The first driver was asked why he did not wait at the scene for the arrival of Police and his response was that he had never in his life seen “anyone so psychotic”.
The first driver stated to the Police Officer interviewing him that the incident “just freaked me out entirely”.
In his affidavit, the first driver states that the Police subsequently laid charges against him over the incident but those charges were later dropped.
Also annexed to the first driver’s affidavit are photographs of the damage to the front windscreen of the bus. It is clear from those photographs that the damage was quite significant.
The second driver swore his affidavit on 28th September 2004. In that document he states that he recalls the incident complained of by the Applicant which took place on 14th September 2003, because he became aware of a complaint about the matter later that night.
The second driver states that the second incident occurred at about 8.45 p.m. on a Sunday night. His bus was running on time. He recalls seeing a young, shaven-headed man running with a Staffordshire Bull Terrier. The man was not at a bus stop, nor was he immediately next to the bus stop. The man was running in the same direction as the bus and he did not think that the man wanted to catch the bus. He continued driving and did not slow his bus.
The second driver stated that he was not aware of the man having any disability or of his having any permission to take his dog on a bus.
His affidavit states that considerations of disability played no part in his decision to continue on in the bus and that he had no conversation with the man.
The second driver says that he can remember receiving a memo from his employer subsequent to that incident which referred to Mr. Thorn and to the existence of his permission to take his dog on buses. He has since carried Mr. Thorn on buses without any issue.
The second driver’s affidavit concludes with the sentence: “If the man had been at a bus stop, I would have stopped.”
Ms. Shoen’s affidavit sets out the ways in which Serco provides training to drivers and brings to their attention matters pertinent to passengers with disabilities. She also details specific correspondence, memoranda and advices to drivers in relation to such matters generally and to Mr. Thorn and his dog in particular.
I shall comment further in relation to Ms. Shoen’s evidence below.
Credit
I found Mr. Thorn and Ms. Jamieson to be unsatisfactory witnesses and it was quite clear to me that they were tailoring their evidence to suit Mr. Thorn’s claim for compensation.
I found the first driver, the second driver and Ms. Shoen to be honest and forthright witnesses.
In particular, where the evidence of Mr. Thorn and Ms. Jamieson differs from that of the first and second drivers, I have no hesitation at all in accepting the versions of the drivers.
Discussion and findings
In relation to the first incident, it is clear to me that Mr. Thorn was not at bus stop 16, nor was he near enough to that bus stop to cause the first driver to conclude that he wanted to catch the bus. I have no doubt that he approached the bus when it stopped at the junction of Pym Street and Days Road. It is also clear that Mr. Thorn was banging on the bus and at no time did he show the first driver his permit that enables him to take his dog on buses. It is therefore quite understandable that the first driver considered Mr Thorn to be potentially dangerous.
Although Mr. Thorn and Ms. Jamieson say that Ms. Jamieson stopped her car on the other side of Days Road and that Mr. Thorn crossed that road to hail the bus, I accept the first driver’s version that Ms. Jamieson’s car was parked at a forty five degree angle across the line of traffic and that Mr. Thorn was leaning over the vehicle. It is also of some significance that the incident log maintained by Serco shows that the first driver radioed in from the Arndale Shopping Centre to report that a man had attacked the bus at the Corner of Pym Street and Days Road. Consequently, it is not surprising to me that the first driver was apprehensive when he was subsequently confronted by a car parked at a forty five degree angle across his driving lane with the person who had earlier attacked his bus leaning over that car and apparently talking to an occupant or occupants.
I do not accept that the dog chain smashed the window of the bus as a result of Mr. Thorn putting his hands up quickly to protect himself. In this regard I accept the first driver’s evidence that the windows of the bus are made of toughened glass, so it would have required considerable force to cause the damage that is shown in the photographs that are attached to the first driver’s affidavit.
Although he was reluctant to admit it, it was clear from the cross-examination of Mr. Thorn that he sometimes has difficulty controlling his temper. He admitted to yelling abuse at Serco personnel and to losing his pro bono legal assistance in relation to this matter because his behaviour was considered to be abusive.
I have no hesitation in concluding that he was angry on 10th December 2001 and that he lost control of his temper. He clearly caused significant damage to the bus. In the circumstances, I am not surprised that the first driver thought that he was in danger of being seriously injured by Mr. Thorn.
Has there been discrimination?
Because I accept the evidence of both the first driver and the second driver, it is clear to me that there has not been any discrimination against Mr. Thorn on the basis of any disability or on the basis of his need to have the assistance of his dog, Buddha.
In relation to the first incident, it is clear to me that Mr. Thorn was not at bus stop 16 and the first driver was not aware that he was trying to catch a bus at that time. Further, at the junction of Pym Street, Mr. Thorn was attacking the bus so the first driver’s refusal to open the bus doors out of fear is quite understandable.
The subsequent behaviour of Mr. Thorn was completely inexcusable and must have been quite terrifying to the first driver. Consequently, the first driver’s actions were clearly not the result of any discrimination against Mr. Thorn. They were actions designed to avoid Mr. Thorn’s violence.
In any event, when Mr Thorn stopped the bus in Days Road, he was not seeking to travel on the bus. His own evidence was: “I intended to show my travel authorization card and let him know that I did have permission to travel with my dog on the bus and that I would be complaining about him.” Further, in cross-examination he said that he had told Ms. Jamieson that he was going to “give the driver a bad night’s sleep”. I therefore accept that at that time there could not have been a refusal or failure on the part of a Serco employee to provide a service, quite simply because Mr. Thorn was not seeking to avail himself of the service that Serco provides.
I accept the first driver’s evidence that the issue of disability did not play any part in relation to his behaviour during the first incident. It is therefore clear that there is no causal link between Mr. Thorn’s disability and the way in which he was treated by the first driver.
In relation to the second incident, I find that Mr. Thorn was not at a bus stop at the relevant time. When the second driver was asked by Mr. Thorn whether he would have stopped if he had known about Mr. Thorn’s authority to board buses with his dog, the second driver responded that he would not have stopped, because Mr. Thorn was not at a bus stop. He said: “Unless you’re at a bus stop, I don’t stop.”
I am satisfied that the second driver was not aware that Mr. Thorn wished to catch a bus, primarily because Mr. Thorn was not at a bus stop. It is therefore clear that there was no discrimination against Mr. Thorn in the second incident on the basis of disability.
I accept that neither the first driver nor the second driver was aware of Mr. Thorn’s disability at the times complained of. That being so, it was not possible for either driver to discriminate on the ground of his disability. See Tate v Rafin [2000] FCA 1582 at paragraph 65.
The conclusion that I come to is that there was no discrimination in either the first incident or the second incident. If there was no discrimination, the question of vicarious liability on the part of Serco does not arise.
However, even if there had been discriminatory conduct on the part of either bus driver (which clearly there was not), I would have had no difficulty coming to the conclusion that Serco had taken “reasonable precautions and exercised due diligence” to avoid discriminatory conduct within the meaning of Section 123(2) of the DDA. That much is clear from the extensive evidence given by Ms. Shoen in her affidavit and in her oral evidence.
Conclusions
Given what I have said above, the only conclusion that I can come to is that Mr. Thorn has not been discriminated against on the ground of a disability. Consequently, his application must be dismissed.
Procedure
I heard this matter in Adelaide but I will be delivering this decision in Tasmania. I will therefore make arrangements for copies to be provided to Mr. Thorn and to the legal representatives of Serco.
If any applications for costs are to be made, they should be made within twenty-eight days in accordance with Rule 21.02(1)(b) of the Federal Magistrate’s Court Rules 2001. That can be done by contacting my Associate to arrange for a listing of the matter. If there is to be any such application, it can be heard by telephone link in accordance with Division 5 of the Federal Magistrates Act 1999 (Cth).
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Roberts FM
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