Fetherston v Peninsula Health

Federal Court of Australia|2004-04-23|Before: Heerey J

REASONS FOR JUDGMENT 1 The applicant Dr Graham John Fetherston is a medical practitioner. Since childhood he has suffered from diabetes-related visual impairment. In early 2001 he was working for the first respondent Peninsula Health as Deputy Director of the Intensive Care Unit (ICU) at the Frankston Hospital. At the end of 2000 his driver licence had been suspended as a consequence of what appeared to the relevant authority to be evidence of further deterioration in his eyesight. Around this time there were concerns expressed by medical and nursing staff at the hospital about the performance of his duties. 2 The hospital authorities requested Dr Fetherston to undergo an examination by an independent eye specialist. He did so but directed the eye specialist not to provide any report to his superiors. Peninsula Health thereupon terminated Dr Fetherston's contract of employment. He was given three months salary in lieu of notice. 3 Dr Fetherston claims that the termination of his employment contravened s 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (the Act). He seeks compensation by way of damages. 4 Dr Fetherston also complains of other matters such as failure by Peninsula Health to provide him with certain facilities. However by far the major issue in the case is the lawfulness or otherwise of the termination of his contract of employment.

Dr Fetherston's earlier career 5 Dr Fetherston was born in 1951. After obtaining a science degree in 1972 he graduated from Monash University with a degree of Bachelor of Medical Science with Honours in 1976. He was admitted as a Fellow of the Royal Australasian College of Surgeons in 1984 and achieved a further fellowship in the specialised area of cardio-thoracic surgery in 1986. 6 In July 1994 Dr Fetherston was working for Monash Medical Centre as a cardiac surgeon. He then found he had to cease this work because of the deterioration in his eyesight.

Employment at Frankston Hospital 7 In August 1994, following his resignation from Monash Medical Centre, Dr Fetherston was contacted by the third respondent Doctor David Langton. Dr Langton had known Dr Fetherston since the early 1980s when both were working at Prince Henry's Hospital. Dr Langton is an Associate Professor and Clinical Director-Medical/Critical Care at Frankston Hospital where he has worked since 1989. He has been a medical practitioner since 1982 and is a fellow of the Royal Australian College of General Practitioners, a Fellow of the College of Chest Physicians and a Fellow of the Joint Faculty of Intensive Care Medicine. 8 Dr Langton asked Dr Fetherston if he wished to perform thoracic surgery at the Frankston Hospital. Dr Fetherston agreed and commenced work as a thoracic surgeon at the hospital and as a consultant in cardio-thoracic surgery. At the time Dr Langton was Director of Intensive Care. 9 One day in July 1996 Dr Fetherston woke up completely unable to see with his right eye and with the sight in his left eye severely impaired. He cancelled surgery for that day and was away from work for some weeks. He then telephoned the Director of Surgery and told him that he could no longer work as a surgeon. 10 A few weeks after this episode Dr Langton suggested to Dr Fetherston that since he was no longer able to perform surgery he might consider working in intensive care. Dr Langton was of course aware of Dr Fetherston's visual disability, and that he had no specialist qualifications in intensive care. But Dr Langton believed that Dr Fetherston's expertise as a cardio-thoracic surgeon would mean that he had a good understanding of much of the work that would be involved in the ICU. Dr Fetherston accepted this offer and commenced work on a sessional basis in the ICU. He continued in this role without significant problems in terms of patient care until late 1998. 11 During this period he had difficulty reading printed text. He obtained a pair of magnifying glasses. Even with this assistance he had difficulty from time to time reading handwritten notes of other doctors. Other staff would assist him by reading such notes. As a result of regular laser treatment his eyesight improved. 12 In late 1998, on Dr Langton's invitation, Dr Fetherston applied for and was granted a one year fixed term in the ICU commencing 13 November 1998. It seems the main reason for this change was that his work on a sessional basis was becoming too expensive for the hospital. 13 In late 1999 the position of Director of Intensive Care became vacant. Dr Langton encouraged Dr Fetherston to apply. However another applicant, the second respondent Dr John Botha, had specialist qualifications in this area. He was appointed to the position. Nevertheless Dr Fetherston was held in high regard and because of Dr Langton's sympathy for his disability a new position of Deputy Director of Intensive Care was created to give him a full time role. 14 Up until this time Dr Fetherston's work was satisfactory and Dr Langton had no complaints about his ability.

Contract of employment 15 After some negotiations a formal letter dated 27 September 1999 was sent by Peninsula Health to Dr Fetherston offering him full time appointment as Deputy Director, ICU for a period of five years to 30 September 2004. The offer was accepted by Dr Fetherston the following day. The letter included the following: "Please note that your appointment is conditional upon a satisfactory annual review of your eyesight and ongoing demonstrated, acceptable, visual acuity." 16 According to the evidence, the term "visual acuity" can be used in two senses. In a technical sense, as used in the medical reports to which reference will later be made, it refers to the result of an eye chart test. More generally however it can mean simply a person's visual capacity. I would read the term in the letter of offer as being used in this latter sense. 17 Attached to the letter were standard conditions of employment including a clause to the effect that service could be terminated on three months notice by either employee or employer. 18 Dr Fetherston's base salary was $120,000 per annum. According to a letter written by Dr Langton at the time, with various bonuses and other benefits the estimated gross value of the package was "well in excess of $220,000".

Request for aids 19 In October 1999 Dr Fetherston submitted a formal requisition for a scanner and computer software known as "Jaws" which would enlarge printed material on a computer screen. He discussed this subsequently on an informal basis with hospital staff including Ms Helen Thompson, an officer in the medical services administration area, but never received any definite response as to whether or not it would be available. He made further requests in March and July or August 2000, but to no avail. The scanner would have cost approximately $400 and the software approximately $1000. Dr Fetherston attempted to install a similar program on his computer but the hospital's IT department removed it. He also requested the repair of his own photocopier but without success.

Dr McCombe's report 20 On 12 September 2000 Dr Fetherston was asked to see the fourth respondent Dr Peter Bradford, Peninsula Health's Executive Director of Medical Services, about a matter not relevant for present purposes. At the end of the conversation Dr Bradford said he noted that Dr Fetherston's contract required a certificate as to the state of his eyesight and requested that he provide one. Dr Fetherston agreed. 21 Dr Fetherston accordingly obtained a report dated 25 October 2000 from his treating specialist Dr Mark F McCombe which stated: "Dr Fetherston has ocular complications of diabetes for which he has had laser treatment to both eyes. Currently the visual acuities are 6/18 in the right eye with correction and 6/18 in the left eye with correction. I expect this level of visual acuity in both eyes to be maintained." 22 The reference to 6/18 means that the person concerned can see at a distance of six metres what a person with normal vision can see at eighteen metres. Dr Fetherston provided the report to Dr Bradford who said that it was satisfactory. On 3 November 2000 Dr Bradford forwarded a copy of the report to Dr Langton with the following note: "1. Marginal but at least we have a base line. 2. The relevant part of the contract is actually in two parts. The second being demonstrate [sic] capacity to practice." 23 Dr Langton understood that the level of visual acuity was acceptable to Peninsula Health. However he considered it borderline and would have been concerned if it were any worse than the level reported.

Suspension of driver licence 24 For many years Dr Fetherston had been required to submit to VicRoads an annual report as to the state of his vision in order to obtain renewal of his driver licence. On 19 December 2000 VicRoads wrote to Dr Fetherston stating that the National Visual Standards require a visual activity of 6/12 and the report provided (presumably that of Dr McCombe) showed that his eyesight did not meet this minimum requirement and that consequently the licence was suspended. 25 On 31 December 2000 Dr Fetherston wrote to VicRoads. He stated that the timing of the notice just prior to Christmas made it impossible to obtain review by his ophthalmologist until late January. He further asserted that his binocular vision was 6/12, the same as it had been for the past three years, that he had not needed any change of glasses over this period and could still work in a busy ICU and cardiac theatre. As soon as he was seen by his ophthalmologist he would be applying to have the licence returned. 26 It subsequently emerged that a square in the relevant form relating to binocular vision had not been filled out. This was a clerical error. On 31 January 2001 Dr McComb wrote to VicRoads advising that he had examined Dr Fetherston on 29 January. Visual acuities were 6/18 right with correction and 6/9 left with a revised visual correction. With this level of visual acuity in the left eye Dr Fetherston met the legal visual requirement for a licence. Following representations by Dr Fetherston, on 9 February VicRoads wrote to him advising that the report was satisfactory and the suspension was lifted. 27 In the meantime, on or about 3 January 2001, Dr Fetherston informed Dr Langton of the loss of his licence. Dr Fetherston deposed that he told Dr Langton that a box had not been filled out in the form, that holding a licence was "always a close thing" and that he would try to get it back, but thought that once a licence is lost because of a disability it is hard to get back. Dr Langton denies that Dr Fetherston mentioned anything about the loss being due to a clerical error. According to him, Dr Fetherston said: " I've lost my licence, I'm finished, you'd better think about paying me out. I am no good to you, I cannot see and you should pay me out." 28 I am inclined to prefer Dr Langton's account of this discussion. Dr Fetherston's letter of 31 December to VicRoads makes no mention of failure to fill out the box on the form. He did mention this at the subsequent meeting on 30 January, to which I shall refer in a moment, but I think it likely that he learned about the mistake in the form some time after the initial discussion about the licence with Dr Langton in early January. 29 This view is supported by the evidence of Mr Ian Kenny, the Nurse Manager, Intensive Care, who said that in late 2000 Dr Fetherston told him that he had lost his driver licence because of his eyesight. Dr Fetherston conveyed to Mr Kenny the impression that this was permanent. He did not suggest to Mr Kenny that he had lost the licence due to a clerical error.

Concerns of other medical and nursing staff 30 Dr Langton says that in December 2000, after he became aware of rumours of the loss of Dr Fetherston's licence, Mr Kenny spoke to him "on behalf of all nursing staff" about Dr Fetherston's vision and their concern over his ability to do his job safely. Mr Kenny gave Dr Langton examples of Dr Fetherston not being able to see properly, on one occasion being unable to insert central lines which were put into the patient's heart. In his affidavit Mr Kenny says he does not specifically recall approaching Dr Langton about this particular matter. He believes it may be that Dr Langton approached him. In any event, Mr Kenny says he did have discussions with Dr Langton about Dr Fetherston's eyesight and its effect on his ability to perform his job and he believes he would have referred to the ability to insert central lines because this was an area where Mr Kenny had observed that Dr Fetherston had difficulty. 31 Dr Fetherston says that there was only one occasion when he had difficulty inserting a line (or guide wire as he terms it). This was when one of the Registrars had lost the line in the patient and he (Dr Fetherston) retrieved it as Dr Botha "had left the Unit rather than attend to the situation". This was after Dr Fetherston had been otherwise stopped from doing procedures. Mr Kenny was not cross-examined. The issue was not otherwise explored. I do not think I can make any firm finding as to what in fact happened. However, the important thing for present purposes is that Mr Kenny, an important member of the hospital staff, and a person with no suggested animus towards Dr Fetherston, raised with his superior a matter of obviously serious concern. 32 Also around this time, that is to say late December 2000, Dr Terence Loughnan, Director of Anaesthesia, approached Dr Langton saying that it was his view that Dr Fetherston was dangerous and that other anaesthetic staff shared his concern. Dr Loughnan reported that there was an occasion where either he or one of his staff (Dr Langton cannot recall which) provided anaesthetic assistance to Dr Fetherston to perform a tracheostomy and that due to Dr Fetherston's eyesight he had not been able to perform it properly. 33 Dr Loughnan has been employed as Director of Anaesthesia at Peninsula Health since 1992. He has known Dr Fetherston since 1986 when they both worked as Registrars at the Alfred Hospital. He was then aware of Dr Fetherston's diabetes and eyesight impairment. He was also aware that Dr Fetherston's later career as a cardiac surgeon ended because of the deterioration of his eyesight. 34 In late 2000 Dr Loughnan was told by one of his anaesthetists that in performing a tracheostomy Dr Fetherston had to make a skin incision in the neck to perform the tracheostomy and appeared to be unable to see clearly. Dr Fetherston had to use his fingers to guide the scalpel to make the required incision. This in Dr Loughnan's experience was not a method adopted by other surgeons and reflected the fact that Dr Fetherston could not see properly and had to use his fingers to try and ensure he was making the correct incision. At or about this time Dr Loughnan was also told by one of the nursing staff that she had been told by Dr Fetherston that he had lost his driver licence due to his inability to see. Dr Loughnan deposed: "In the circumstances I had serious concerns that his eyesight had deteriorated and that he may not be safe to perform that role." 35 Dr Fetherston in one of his affidavits gave a detailed description of his technique in performing tracheostomies. He defended his method but accepted it was not the same as that used by all practitioners. Dr Loughnan was not cross-examined, and again this was not an issue as to which any worthwhile findings could be made. (This should not be taken as implied criticism of Dr Fetherston's counsel. On the contrary, I think the conduct of his case properly recognised that what was important was the fact that concerns were expressed and whether the actions taken by the respondents in response to those concerns involved any contravention of the Act.) 36 Dr Loughnan directed his colleagues not to assist where Dr Fetherston was the supervising consultant for surgical procedures such as tracheostomies. 37 Also around this time Dr Langton personally observed Dr Fetherston, noting for the first time that he could not read the bedside observation charts. These were being read to him by other staff. These charts contained information relating to the patient's heart rate, temperature and drugs used. The information is very fundamental to the patient's care. Dr Langton also observed that Dr Fetherston could not read other doctor's medical notes. In his affidavit Dr Loughnan said that the inability to read bedside charts or other doctor's notes was not necessarily a fundamental problem as long as the hospital was aware of it and investigated any problems associated with it. However it could also indicate a sign of other difficulties and might have suggested a deterioration in his eyesight. 38 As a result of all these concerns Dr Langton met with Dr Bradford and Dr Loughnan. It was agreed that Dr Fetherston should be independently assessed. The meeting of 30 January 2001 39 A meeting was arranged on 30 January 2001. Those attending were Dr Bradford, Dr Botha, Mr Michael Dawson-Smith, Executive Director Human Resources at Peninsula Health, and Dr Fetherston. Dr Langton was on leave. Dr Fetherston took a tape recording of the meeting and later prepared a transcript. There are some gaps and some passages which are not clear but on the whole it was accepted by the parties as reasonably accurate. 40 Dr Bradford opened the meeting by stating that those representing Peninsula Health had heard from sources over Christmas as to the loss of Dr Fetherston's licence and other complaints that his eyesight was getting worse and that he could not read medical records. They wanted to support him if possible and independently assess the situation. They wanted to hear from him directly rather than getting second, third or fourth hand reports. 41 Dr Fetherston replied by challenging them to say where he had fallen down. The only thing that had changed was that he had lost his licence because the binocular vision square was not filled out. He said he had always had difficulty reading records. He complained that he had not been given the software and scanner requested. 42 Dr Botha made the point that ninety-five per cent of the work in the ICU involved being presented with clinical data by Registrars and that not a large part of the work was actually making decisions on paper. His view was that they should "figure out the problems we face" and work out the parts of the job Dr Fetherston had difficulties with and the parts of the job he did well. 43 Dr Fetherston who, it has to be said, appears to have manifested a suspicious and hostile attitude, took this to mean that he should accept five per cent of the risk. On that basis he said "I can't do the job." He was not prepared to accept that risk and wanted to be paid out of his contract. The following exchange took place: "Dr Bradford: Your skills and knowledge are highly valued. This is the problem. If they weren't valued you wouldn't be here. We would be asking you to terminate your contract. Dr Fetherston: Oh I see, an independent assessor to see if I can do the right thing. Dr Bradford: Graham, let's say hypothetically an independent assessment says to us and to you that you can do this job with the following aids and supports. Dr Fetherston You can't do the job with aids and supports. One day they are not going to be there and I am going to have to do something and if I stuff up once its known about this you won't have a leg to stand on. You will have a big liability claim and [gap in transcript]… You have confidence in my ability to do it or people will ask questions of what you are doing." 44 The upshot of the meeting was that Dr Fetherston rather reluctantly agreed to be assessed by a specialist in occupational medicine. 45 As has already been noted, Dr Fetherston told those present that his licence was suspended because the binocular vision square was not filled out. But it is of some significance in my view that Dr Fetherston did not advance this in any way as a solution for his then present problems. He did not say, "I am getting my licence back. The suspension was a clerical error. That is the end of the matter". I think Dr Fetherston recognised, implicitly at least, that the loss of his licence had been only a catalyst and that the fundamental question of his ability to do the work in the ICU had to be resolved one way or the other. Directions to cease performing procedures 46 On 5 February 2001 Dr Botha told Dr Fetherston to cease performing tracheostomies. A tracheostomy had been booked for that afternoon and no supervision was available so the procedure was cancelled. Dr Fetherston said this caused considerable dismay to the patient's family. On 12 February Dr Bocha directed Dr Fetherston to cease performing any procedures at all in the ICU. On the latter occasion, according to Dr Fetherston, Dr Botha spoke to him in front of a number of nursing staff in a way Dr Fetherston found "humiliating and distressing". Dr Botha has no recollection of any nurses being present but says he never intended to embarrass Dr Fetherston publicly or privately.

Independent assessments 47 On 2 February 2001 Dr Bradford wrote to Dr Fetherston referring to the meeting of 30 January and confirming the proposal made to Dr Fetherston at that meeting for professional assessment of his visual disability in its relationship to the work he was required to do as Deputy Director of ICU. Dr Bradford's view was that this should be undertaken at the hospital's expense by a specialist in occupational medicine "agreed by Peninsula Health and by yourself." The letter stated "The hope [sic] for outcome from Peninsula Health's point of view of this assessment would be that we could put aids and procedures in place such that you were able to carry out the work required of you. I note that your contract requires evidence of ongoing visual acuity and that in November 2000 you provided us with a report from a specialist ophthalmologist which stated that you had 6 on 18 vision in both eyes. I note that you have also acknowledged that your driving licence has been withdrawn, and that you are having difficulty reading medical records." 48 Dr Fetherston replied in a lengthy letter dated 19 February 2001. He asserted that the proposal for assessment was only one of the final decisions made at the time and stated that the other was that Dr Bradford "would get back to me re terms to pay out my contract". Dr Fetherston stated: "That the latter is the best option for all involved is confirmed by the fact that my rostered hours have been substantially reduced, my duties in the intensive care unit have been almost abolished apart from undertaking ward rounds and the staff (not only in the intensive care unit) are now questioning whether I am able to perform my duties. As you can imagine this is an untenable situation in the intensive care unit." 49 Dr Fetherston noted that his eyes had been a problem for some time and that he had been forced to give up surgery as a result of deterioration in vision. 50 On 22 February Dr Langton wrote to Dr Fetherston. The letter was stated to be a follow-up on the meeting of 30 January and the letter from Dr Bradford on 2 February. Dr Langton's letter stated: "As you are aware, some concerns have been raised about your ability to work as an ICU consultant given your visual disability. We feel that, in the interests of patient safety and quality of care, we cannot leave these concerns unaddressed. Therefore we wish to obtain an independent valuation of your disabilities as they relate to your professional life at this hospital. As previously stated, our hope is that we can put procedures/aids in place that will allow you to continue to work in ICU." 51 The letter concluded by noting that arrangements had been made for him to see Dr James Galbraith, Ophthalmologist, on 27 February and Dr Mary Wyatt, Occupational Physician, on 7 March, both appointments to be at the expense of the hospital during normal working hours. 52 On 23 February Dr Langton wrote to Dr Galbraith, with copies to Dr Bradford, Dr Botha and Mr Dawson-Smith, as follows: "Thank you for your [agreeing to undertake an] independent assessment of Graham's visual disabilities. Graham is a trained cardiothoracic surgeon who had to give away his surgical practice a few years ago owing to his failing vision as a result of diabetes. We employed Graham subsequently as Deputy Director of Intensive Care, but questions are now being asked by his colleagues about his ability to perform this role safely. This came to a head with the recent loss of his motor vehicle driving licence (due to vision). His duties as an Intensive Care consultant include: (i) The examination and assessment of critically ill patients, (ii) Insertion of percutaeneous arterial and venous lines and teaching and supervising of the RMO's [sic] to do the same,; (iii) Reading patients medical notes, (iv) Reading patients bedside observation chart, (v) Reading the bedside monitor, (vi) Checking the settings on the ventilator, (vii) Endotracheal intubation (viii) Percutaneous tracheostomy, (ix) All of the above both in hours and after hours. We would like to evaluate exactly how good/poor Graham's vision is and which of the above tasks he can reasonably be expected to safely perform. We then want to make a judgement about whether with additional supports/aids we can overcome his disabilities to the extent that would permit him to continue in his current role, or whether we should be assisting him to find alternative employment. I have discussed the above assessment with Graham, made the appointment in his normal work time and offered transport. I should say, however, that he was hostile to this suggestion and may cancel or not attend. Please notify me if this is the case. Please send your account care of myself marked "Peninsula Health". 53 On the same date Dr Langton wrote in essentially the same terms to Dr Wyatt. 54 On 27 February Dr Fetherston attended for examination by Dr Galbraith. In his affidavit Dr Fetherston expressed dissatisfaction with the examination Dr Galbraith performed. He said that it was not as thorough as the examination usually undertaken by his own treating ophthalmologist. Dr Galbraith asked him no questions at all about the work he was performing or about any aids he was using. Dr Fetherston says he therefore "had considerable doubt" as to whether or not Dr Galbraith's report would accurately reflect his capacity to do his job. Further, Dr Galbraith dilated his eyes to examine the retina. Dr Fetherston says he was "aware that this had nothing to do with forming a judgment as to my visual acuity and capacity to do my job". As a result of these concerns he refused to permit Dr Galbraith to release a report setting out his findings on examination and his opinion about the state of his eyes and eyesight. Although he has never been provided with a copy of a report, Dr Galbraith did inform him that his visual acuity was 6/24 in the right eye and 6/15 in the left eye which is the dominant one used. Dr Fetherston said these "were in practical terms better than the results I have previously submitted to Peninsula Health in the past". He was not concerned that aspect of his report would peril his employment. What he was concerned about was that the investigation appeared to be far more wide-ranging than was properly required to answer the questions and concerns that had been raised by Peninsula Health. He said: "I am a private person and I hold a strong view that the health of my eyes, and indeed my health generally is, with the exception of the issues relating to visual acuity and my capacity to perform my job, a wholly private matter." 55 On the day of the examination Dr Galbraith telephoned Dr Langton to say he had just had the consultation with Dr Fetherston but had been forbidden to release his report. Dr Langton then spoke with Dr Fetherston and asked whether this was true. Dr Fetherston reiterated that he would not authorise the release of any report. During that discussion he made no mention of the fact that he felt Dr Galbraith's examination had not been thorough or had been broader than necessary. I accept Dr Langton's evidence that Dr Fetherston did not then say to Dr Langton that he would not release a report from Dr Galbraith because of inadequacies of examination and because it went beyond matters that Peninsula Health were entitled to know. Had this been the case, I think it likely that Dr Fetherston would have confirmed in writing what he now says was his reason for effectively frustrating the independent assessment process. I believe the real reason was that Dr Fetherston believed a report from Dr Galbraith would be damaging to him. He simply wanted to be paid out of his contract. In one of his affidavits Dr Fetherston says, speaking of the stage when he was protesting at having to have an independent assessment, "I replied that I was not going to do this because it had not been agreed to. I said that if it came back bad it was not just my job that would be gone but it would be my whole career ruined."

Standing down 56 On 5 March 2001 Dr Langton wrote to Dr Fetherston as follows: "Dear Graham Concerns about your ability to work safely owing to your poor vision have been clearly and repeatedly expressed by yourself as well as some collegues. We have sought to resolve these concerns with an independent evaluation of your eyesight. You have refused to release this report to us, stating that you felt it would be damaging to your future employment both here and elsewhere. I can only assume therefore that you are not safe to continue to allow to work in clinical practice. As such I must stand you down from your ICU consultant duties. At this stage this will be on full pay until this matter is resolved. We would still like you to attend the appointment we have made for you on Wednesday, 7th March 2001 with Dr Mary Wyatt, Occupational Physician. We may also call on your assistance to be involved with non-clinical duties such as teaching. It is indeed very regrettable that we have come to this point in our relationship." 57 According to Dr Fetherston, Dr Langton handed this letter to him in the middle of a ward in front of Residents and nurses who were "looking on in amazement". He went to the Residents' office and read the letter. He says it was clear to him that he would never get further employment at Peninsular Health. After "this humiliation" there was no way he could go back to work without questions being asked about his abilities. He went and said goodbye to staff members, some of whom were in tears. 58 Dr Langton says he had no intention of humiliating Dr Fetherston in front of others. He handed over the letter in he ward because Dr Fetherston did not come to his office as requested. 59 On 7 March Dr Langton wrote to Dr Fetherston requesting to be provided with an authority for the release of the independent medical assessments from both Dr Galbraith and Dr Wyatt and to provide them by close of business on 16 March. 60 On 13 March Dr Wyatt wrote to Dr Langton reporting on her assessment of Dr Fetherston. She noted a history of diabetes for approximately forty years and his cessation of cardio thoracic surgery for work because of difficulties with vision. He had continual problems with his vision although these had not altered substantially over the last few years. He had lost his driver licence although this was through an error in documentation and the licence had subsequently been reinstated. In the workplace he advised some difficulties with vision which affected his ability to read notes and his visual ability to review patients, and also the reading of monitoring or observation charts. He advised that he had been able to manage this over the last few years by seeking assistance from other staff and had been able to perform procedures adequately despite limited vision. He had recently been referred for independent ophthalmic assessment but declined to have this information released. 61 Dr Wyatt noted her earlier suggestion by telephone that one option would be to review Dr Fetherston and then undertake a worksite assessment and discuss the issue with all concerned "either to explore aids or modifications to the work process to assess whether or not continued work in this capacity was appropriate". However at the review with Dr Fetherston it seemed that the employee/employer relationship had broken down and he advised that continued work in intensive care was not a viable option. He acknowledged the issue of trust in his ability had been questioned and felt return to work in that environment was unlikely to be successful. Concerns regarding his contract were noted. 62 Dr Wyatt concluded that without medical evidence of Dr Fetherston's level of visual disturbance and with his sentiment that return to work was not going to be successful she did not believe a worksite visit exploring work options would be a worthwhile exercise.

Termination of employment 63 On 29 March Dr Bradford wrote to Dr Fetherston formally terminating the contract. The letter referred to "our letter of 8 March" (this is presumably a mistaken reference to Dr Langton's letter of 7 March) and stated: "We note that you have failed to provide the written authority requested or to otherwise respond in any way to that letter. Your failure to comply with this request is in breach of both the express terms of your contract and your general duty to Peninsula Health. In the circumstances we are left with no option but to terminate your contract with Peninsula Health. The termination will take effect on Monday 2 April 2001 with three months' pay in lieu of notice. Despite the unfortunate circumstances giving rise to this letter, we take this opportunity to thank you for your service with Peninsula Health and to wish you well for the future."

The Disability Discrimination Act 64 Section 3 provides that one of the objects of the Act is "(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community. "Disability" is defined in s 4 to mean, relevantly for present purposes, "(a) total or partial loss of the person's bodily or mental functions … (e) the malfunction, malformation or disfigurement of a part of the person's body." It was not in dispute that Dr Fetherston had a disability within the meaning of the Act. 65 Section 5 defines disability discrimination as follows: "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." 66 Section 6 defines indirect disability discrimination as follows: "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." 67 Section 15 deals with discrimination in employment and relevantly provides as follows: "Discrimination in employment (1) … (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employee to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates: (a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. (3) … (4) Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment; or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer."

Dr Fetherston's case 68 Counsel for Dr Fetherston contended that there had been a contravention of the Act in the following respects: (a) the failure to provide aids; (b) the treatment of Dr Fetherston from the time his loss of licence became known until the time of dismissal and in particular (i) contributing to and permitting the development of rumours about his competence as a direct result of the loss of his licence; (ii) the unnecessarily humiliating way in which he was prevented from performing procedures and was stood down and sent home in front of other staff; (iii) the imposition of a requirement that he undertake further opthalmic examination; (c) the termination of his employment.

Purvis v New South Wales (Department of Education and Training) 69 Very recently, and after the present proceeding was commenced, the Act has been considered by the High Court in Purvis v New South Wales (Department of Education and Training) (2004) 78 ALJR 1. A pupil in a school conducted by the respondent had suffered brain damage in infancy. This disorder manifested itself in repeated acts of violence by the pupil against staff and other students. The school principal suspended him several times and eventually expelled him. By a majority (Gleeson CJ, Gummow, Hayne and Callinan and Heydon JJ, McHugh and Kirby JJ dissenting) the High Court held there had been no discrimination within the meaning of the Act. 70 Gleeson CJ held (at [11]) that the comparison required by s 5 was with a pupil without the disability, not a pupil without the violence. The treatment of the pupil (suspension followed by expulsion) was to be compared with the treatment that would be given, in the same circumstances, to a pupil whose similar violent behaviour was not disturbed behaviour resulting from a disorder. 71 His Honour pointed out (at [12]) that this approach allowed account to be taken of the school authority's legal responsibilities towards the general body of students. 72 Moreover, his Honour held (at [13]) that the student's disorder and associated disturbed behaviour was, from the point of view of the school principal, "neither the reason, or a reason, why he was suspended and expelled". The "expressed and genuine basis" of the principal's decision was the danger to other students and staff constituted by the student's violent conduct and the principal's responsibilities towards those people. 73 In a joint judgment Gummow, Hayne and Heydon JJ (at [222]) rejected the appellant's argument that, in identifying the circumstances that "are the same or not materially different" for the purpose of the comparison required by s 5(1), all circumstances that constitute the disability in question must be excluded. Their Honours said: "Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires." The correct sequence, their Honours said, is to identify the circumstances attending the treatment given to the disabled person and then examine what would have been done in those circumstances if the person concerned was not disabled. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the discriminator. There is no basis for excluding from consideration some of the circumstances because they are identified as being connected with the disabled person's disability (see [223]-[224]). 74 Their Honours concluded (at [232]) that the Commissioner's decision in favour of the pupil was incorrect because his conclusions about the reason for the pupil's suspension and exclusion (his disturbed behaviour) was seen as determinative of the question of less favourable treatment. The circumstances which surrounded his treatment were not identified. There was no determination of how a person without the disability would have been treated in the circumstances that were the same as, or not materially different from, the circumstances surrounding the pupil's treatment. 75 Unlike Gleeson CJ, their Honours did not rest their decision on a conclusion that there was not any less favourable treatment "because of" the pupil's disability. However, their Honours said (at [236]): "For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed 'because of' disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'." (Emphasis in original) 76 Callinan J held (at [271]) that even accepting the appellant's argument that a person's behaviour in consequence of a disorder fell within the definition of disability, the definition of disability in the Act did not extend to criminal or quasi-criminal acts. His Honour also agreed with Gummow, Hayne and Heydon JJ with respect to the "comparator" issue and their construction of s 5(1). McHugh and Kirby JJ dissented.

The failure to provide aids 77 Any failure by the respondents to provide aids for Dr Fetherston did not contravene the Act. The Act does not impose a legal obligation on employers, or anyone else, to provide aids for disabled persons: Purvis at [203] and [218]. 78 The Act does deal with various aids: palliative and therapeutic devices and auxiliary aids (s 7), interpreters, readers and assistants (s 8), and guide dogs, hearing assistance dogs and trained animals (s 9). However, none of those sections mandate the provision of such aids. Rather they provide that there will be discrimination for the purposes of the Act if a person is treated less favourably because of the fact that he or she is accompanied by or possesses such aids. 79 Nor can any of the aids that Dr Fetherston requested be considered as "opportunities for promotion, transfer or training, or…other benefits associated with employment" within the meaning of s 15(2)(b). This provision is concerned with opportunities and benefits which are normally incidents of the employment and in respect of which the disabled person is subject to discrimination in terms of s 5, that is to say treated less favourability than a person without the disability. 80 It was submitted that the "requirement" that Dr Fetherston perform his duties without aids also constituted indirect discrimination. Peninsula Health was imposing a condition that he read medical reports with which he was unable to comply because of his disability. The imposition was not reasonable and Dr Fetherston, to the extent that he was not able to read medical reports, was not able to and did not comply with it. 81 The mere non-response to Dr Fetherston's requests cannot, in my opinion, be characterised as a "requirement or condition" within the meaning of s 6. That provision is concerned with some positive criterion or test or qualification or activity with which the disabled person is called on to comply. 82 In any event, it is plain that neither the non-provision of aids nor Dr Fetherston's difficulty in reading medical reports was a cause of the termination of his contract of employment. Indeed, the provision of aids as a result of the assessments by Dr Wyatt and Dr Galbraith was a possible means by which Dr Fetherston's employment at the hospital might have been secured. It was entirely his own action in frustrating the assessments which prevented that solution.

Treatment of Dr Fetherston from the time his loss of licence became known until the time of his termination 83 The evidence does not support the assertion that the respondents or any of them "contributed to and permitted" the development of rumours about Dr Fetherston's competence as a direct result of the loss of his licence. There is no doubt that the fact of the loss of his licence, and that the loss was due to his visual problems, became known at the hospital. But this development could not be separated from the concerns which responsible medical and nursing staff were having concerning Dr Fetherston's performance of his duties in respects which appeared to be related to his visual disability. The steps that the respondents took in the light of the loss of licence and the concerns expressed were reasonable and proper, in the light of their duty of care to patients at the hospital and in fairness to Dr Fetherston himself. In arranging for an expert independent assessment the respondents genuinely hoped that such assessment would not require them to take any action adverse to Dr Fetherston. But if that did become necessary, it was not to be on the basis of rumour, or second, third and fourth hand reports, as Dr Bradford said at the meeting of 30 January. 84 In my opinion, the actions of Dr Botha and Dr Langton in directing Dr Fetherston not to perform tracheostomies, and the standing down by Dr Langton, were not unnecessarily humiliating. The whole period leading up to his termination would have been extremely stressful for Dr Fetherston. It is not surprising that he might have taken offence at certain actions where none was intended or objectively manifested. I must say in this regard in relation to Dr Langton in particular that his demeanour in the witness box was that of a mild-mannered and courteous man. Over the years he had shown practical sympathy for Dr Fetherston and assisted him to advance his career in the face of his disability. At a timewhich must have been painful for all concerned Dr Langton acted in good faith consistently with the duties he owed to his employer and patients in its care. Nor, in my opinion, can the good faith of Dr Bradford or Dr Botha be doubted. 85 The requirement for the further ophthalmic examination was in accordance with the terms of Dr Fetherston's employment contract, which required not only satisfactory annual review of his eyesight but "ongoing demonstrated, acceptable, visual acuity". The requirement was reasonable. It was not an "undue intrusion into his private life". Dr Fetherston's capacity to carry out surgical procedures and other medical work in circumstances where patients' lives were at risk was not a matter confined to the sphere of his private life. In any event, there was no reason to believe that the results of Dr Galbraith's assessment would go beyond the responsible officers at Peninsula Health. And the subject matter of the assessment, Dr Fetherston's visual capacity, did not involve matters which could be objectively regarded as embarrassing or discreditable to him.

Termination of employment 86 The first step is to identify the relevant circumstances in which Dr Fetherston was treated. These are all of the objective features which surrounded the termination of his employment by Peninsula Health: Purvis at [224]. The circumstances included the following: (a) Dr Fetherston was a senior practitioner in the ICU, a department where urgent medical and surgical skills in life-threatening circumstances are often required; (b) Dr Fetherston had difficulty in reading unaided charts, x-rays and handwritten materials; (c) There were reports of Dr Fetherston performing tracheostomies in an unorthodox manner, apparently because of his visual disability; (d) Medical and nursing staff expressed concern about Dr Fetherston's performance of his duties in ways apparently related to his visual problems; (e) In the light of all the foregoing Dr Fetherston attended an independent eye specialist at the request of his employer Peninsula Health but refused to allow the specialist to report to it. 87 In identifying the relevant circumstances I have not included the loss of Dr Fetherston's licence. By the time of the critical events concerning Dr Galbraith's examination and the subsequent termination of employment, it was known to Peninsula Health that the suspension was due to a clerical error. Dr Fetherston's licence had been restored on 9 February 2001. But the loss (and subsequent restoration) of the licence had by this time been overtaken by events, and in particular the concerns of medical and nursing staff. These concerns rested on actual observations of Dr Fetherston. They could not be responsibly ignored by Peninsula Health. VicRoads could not be the arbiter of whether or not Dr Fetherston was able to perform his medical work in a way that adequately discharged the duty of care which he and Peninsula Health owed to patients. Indeed, as has been mentioned, Dr Fetherston did not suggest otherwise. 88 Then the question arises: how in these circumstances would the respondents have treated a person without Dr Fetherston's disability (see Purvis at [225])? In answering this question one should not "strip out" these circumstances which are connected with Dr Fetherston's disability: Purvis at [222], [224]. 89 The answer in my opinion is clear. Peninsula Health and any responsible health authority would have in these circumstances treated a hypothetical person without Dr Fetherston's disability in the same way. An independent expert assessment would have been sought. A refusal to allow that expert to report must have resulted in termination of employment. 90 This is a stronger case than Purvis. There the relevant "disability" was that defined in paragraph (g) of the definition: "A disorder, illness or disease that affects a person's thought-processes, perception of reality, emotions or judgment or that results in disturbed behaviour". (Emphasis added) Thus it could be, and was, argued, albeit in the event unsuccessfully, that the pupil's disturbed behaviour was an aspect of his disability and so was to be ignored in considering how a person "without the disability" would have been treated. In the present case, that kind of argument could not be put. 91 Before leaving the "comparator" aspect of s 5(1) I would observe that there may be an error in s 5(2). After the words "would treat another person" the word "with" should perhaps be "without". Subsection (2) is dealing with one of the concepts in subs (1), that is a comparison of treatments by the discriminator of different persons. Subsection (1) postulates three persons: · The discriminator · The aggrieved person, ie a person with a disability · A person without that disability (either actual - a person the discriminator "treats", or hypothetical - a person the discriminator "would treat")

Subsection (2) looks at the comparison between the circumstances in which the third of these persons (ex hypothese a person without the disability) is, or would be, treated by the discriminator, and the circumstances in which the person with the disability is treated by the discriminator. As was pointed out in Purvis (at [222]), subs (2) provides that for the purposes of that comparison the relevant circumstances are not shown to be materially different by showing that the disabled person has needs for different accommodation or services. Since a comparison in this context necessarily requires two persons, one with and one without the disability, it is difficult to see why the present text of subs (2) refers in two places to a person with a disability. 92 There is a second, and independent, ground on which the claim must fail. Even if Peninsula Health's treatment of Dr Fetherston in terminating his contract was less favourable than the treatment that would have been given to a person without his disability, was that because of his disability (see Purvis at [225])? 93 The effect of s 10 is that it is sufficient if the disability of a person is one of two or more reasons for which an act is done; further, the disability need not be the dominant or a substantial reason for doing the act. However, in the circumstances of the present case, Dr Fetherston's disability was not a reason at all for the termination of his employment. Peninsula Health was of course aware of his disability, and had been from the commencement of his employment. So far from his employment being terminated because of his disability, Peninsula Health and the other respondents genuinely hoped that, notwithstanding his disability, the outcome of his assessment by Dr Wyatt and Dr Galbraith would be that he would be able to continue his employment, perhaps with some aids or in some modified or different role. What led to the termination was the quite independent event of Dr Fetherston's refusal to allow Dr Galbraith to report his opinion to Peninsula Health. 94 I therefore conclude that Dr Fetherston's application must be dismissed with costs Assessment of damages 95 The parties have requested that if I were to find against Dr Fetherston on liability I should nevertheless assess the damages that would be payable under s 46PO(4)(d) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). This provision empowers the Court to make "an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered by an applicant" 96 Peninsula Health quantified the employment package as being worth in excess of $220,000, which is consistent with the evidence as to the earnings for the only full year that Dr Fetherston worked in his capacity as Deputy Director of the ICU. His contract was for five years from 1 October 1999 to 30 September 2004. Dr Fetherston has certainly tried to obtain further employment. He has sought work at Dandenong, Monash, Cabrini and Alfred Hospitals without success. He has had one job interview from six applications. In the meantime he is undertaking a Master's Degree in Health Management at Monash University. After taking into account the three months salary in lieu of notice he has therefore lost earnings from 1 July 2001 to 30 September 2004, that is to say three years and three months, which totals $715,000. 97 Dr Fetherston has continued some work as a medical perfusionist but since he was doing this work before the termination I shall disregard it. However, allowance would have to be made for the fact that Dr Fetherston's condition may have deteriorated even further and resulted in Peninsula Health exercising its rights of termination on three months notice. Dr Fetherston says that his diabetes is now "out of control" and his blood pressure is hard to control. He has had kidney problems as well as mild to moderate renal failure. The reduction for this eventuality is essentially an arbitrary exercise. After making an allowance I would fix $500,000 as an appropriate figure for income loss. 98 Common law damages for breach of contract do not take into account mental anguish and similar effects: Addis v Gramophone Company [1909] AC 488. However there is no warrant for so restricting the award of damages for "loss and damage" under s 46PO(4)(d): Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 256, Stephenson v Human Rights and Equal Opportunity Commission (1995) 61 FCR 134 at 142-143. (See also in a different context Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26 at [44]. ) 99 The impact on Dr Fetherston of his termination has been very severe. His wife described that his having to give up surgery in 1996 was a "terrible blow to him". He became irritable and short tempered and the relationship with his wife and their children deteriorated. However he improved once he commenced to work in the Frankston ICU. His self esteem and temper improved. It was, his wife said, a "lifebuoy for him". However from the events of early 2001 leading up to his termination he became considerably worse tempered. She said that since those events "he has, as it were, pushed me away". His "whole spirit has been crushed" by the events at Frankston Hospital. Work was always the most important thing in his life and it has now effectively been taken away from him. 100 In my opinion, whether they contravened the Act or not, the respondents did not act harshly or unreasonably towards Dr Fetherston. I would not allow any amount for aggravation, which usually requires a finding that the discriminator has acted in a way that could be characterised as high handed, malicious or oppressive: Spencer v Dowling [1997] 2 VR 127 at 144-145. Nevertheless, if termination had been a contravention of the Act, it has had a profound effect on Dr Fetherston's life. I would allow $50,000 on that account. 101 I would therefore assess damages at $550,000. 102 Interest can be awarded under s 51A of the Federal Court of Australia Act 1976 (Cth) since this proceeding may be characterised as one "for the recovery of any money". The rate should be a commercial rate: EMCL Pty Ltd v ESANDA Finance Corporation Pty Ltd [1999] FCA 978 at [62]. The current cash rate, according to The Australian Financial Review of 23 April 2004, is 5.25 per cent. Insofar as an award would represent compensation for salary which would have been received progressively over a period of approximately 34 months, it would overcompensate to allow interest on all that amount for the whole period. Allowing interest at 5.25 per cent for 17 months produces a figure of $37,187.50. In respect of non-economic loss, if one treats half the award as being compensation for suffering and distress in the future, interest should only be allowed on half. Interest on $25,000 for 34 months at 5.25 per cent produces $1859.37 making total interest of $39,046.87. 103 A total award would therefore be $589,046.87. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey .

Associate: Dated: 23 April 2004 Counsel for the Applicant: P Burchardt

Date of Hearing: 29, 30, 31 March 2004

Commission Act 1986(Cth)s 46PO(4)(d)

Human Rights and Equal Opportunity Commission Act 1986(Cth)

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