Anti-Discrimination - impairment - whether direct discrimination - whether indirect discrimination - compensation.

Anti-Discrimination Act 1991 (Qld) ss 10,11, 45, 46, 209

Bell v State of Queensland and Anor (No1) [2014] QCAT 297

Malone v Pullen and Hungry Jacks Pty Ltd [2004] QADT 11

Moffat on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd [1998] QADT 16

Purvis v New South Wales [2003] HCA 62; [2003] 217 CLR 92

The State of Queensland v Che Forest (2008) 198 FCR 532

Represented by Dr Max Spry of Counsel instructed by Mr Damon King of Hopgood Ganim, Solicitors.

[1] Ms Kleinig complains that she was subjected to direct and indirect discrimination by employees of the respondent, for which the respondent is vicariously liable. The complaints arise out of her attendance at theme parks conducted by the respondent at the Gold Coast, on 12, 14 and 15 December, 2013. The relevant area in which the alleged discrimination occurred was in the area of provision of goods and services.

[2] Ms Kleinig was born with a congenital abnormality, partial agenesis of the left upper limb. She has no left forearm, wrist or hand.[1]It is admitted that she suffers an impairment as defined in the Anti-Discrimination Act 1991 (Qld) (the Act).

[3] It is admitted that at all relevant times the respondent was engaged in the supply of goods or services within the meaning of the Act.

[4] To establish direct discrimination under section 10 of the Act, Ms Kleinig must establish:

• (a) because of her impaired left arm;

• (b) the employees of the respondent treated her less favourably than another person was treated, who did not have an impaired left arm;

• (c) in circumstances that are the same or not materially different.

[5] Indirect discrimination is different. Section 11 of the Act requires that Ms Kleinig:

• (a) identify a term or condition which has been imposed on her;
• (b) demonstrate that she cannot comply with the term because of her impaired left arm;
• (c) demonstrate that:

a higher proportion of people without an impaired left arm could comply with the term; and

the term is not reasonable. In this regard, the onus falls on the respondent to demonstrate that the term is reasonable in all the circumstances.

[6] Section 45 of the Act prohibits discrimination in the goods and services area. Section 46 of the Act provides relevantly that a person who supplies goods or services must not discriminate against another person by treating the other person unfavourably in any way in connection with the supply of goods and services. Services are defined to include, relevantly:

• (a) access to and use of any place, vehicle or facilities that members of the public are permitted to use; and

... (c) recreation, including entertainment, sports, tourism and the arts..."

[7] The respondent contends that it has a valid defence under section 133(2) of the Act, to any finding of unlawful discrimination on the ground of vicarious liability, on the basis that it took reasonable steps to prevent its employees contravening the provisions of the Act.

[8] The respondent contends that insofar as indirect discrimination is asserted in connection with the supply of goods and services, the allegation cannot succeed because section 45 and 46 of the Act deal exclusively with direct discrimination, not indirect discrimination. It is said that because direct and indirect discrimination are mutually exclusive concepts at law, an assertion of indirect discrimination cannot be maintained as a matter of law. Alternatively, the respondent contends that no condition or requirement was imposed on Ms Kleinig, which was unreasonable.

[9] Finally, the respondent contends that it has a valid exemption from any finding of unlawful discrimination, pursuant to section 106(1) of the Act - compliance with health and safety legislation, including sections 19(2) and 20(2) of the Work Health and Safety Act 2011 (Qld); and section 108 of the jAct -steps taken for the protection of the health and safety of people at a place of work (including Ms Kleinig).

[10] Ms Kleinig's evidence is that she visited SeaWorld with her friend Joshua Drayton on 12 December, 2013. She says that at approximately 4.45pm she was queuing for the Sea Viper ride. Before she got on the ride an employee of the respondent pointed at her left arm (which she refers to as her little arm), and shouted to another employee words to the effect "has this been checked?" The other employee replied: "yes, I have been on the phone about it".

[11] Ms Kleinig's evidence is that the ride attendant should have seen the armband issued to her by the respondent, which signifies that she is able to ride on Sea Viper. Instead, she noted a female attendant looking at her and then making phone calls, a delay in the queue and finally the male attendant pointing at her stump when he asked if she had been checked. The male attendant did not make eye contact with her. Ms Kleinig said that she felt offended by the way she was treated. She was offended by the way he treated her, in that he "waved his hand at my little disabled arm". Ms Kleinig agreed that because she was at the back of the queue she was not publicly humiliated by the attendant's conduct.

[12] Mr Drayton gave evidence that the events occurred as described. The ride attendants were not called to give evidence. Because there was no contrary evidence as to the events in question and because Mr Drayton's recollection of events is similar to that of Ms Kleinig, I find that the events occurred as alleged by Ms Kleinig.

[13] Ms Kleinig submits that she has been directly discriminated against because other visitors to the park who had both hands were not treated like this.

[14] The respondent submits that putting it at its highest the words and actions complained about do not amount to discrimination. The respondent says that the most which could be said is that on one occasion someone spoke to Ms Kleinig in a way which was insensitive or bad mannered. Reference was made to evidence given by Ms Kleinig that the attendant may not have seen the Sea World wristband signifying her ability to ride on the Sea Viper. In these circumstances, it is submitted the question asked by the male attendant was reasonable. It was pointed out that there was no public humiliation of Ms Kleinig.

[15] The respondent submits that as in the cases of Malone v Pullen and Hungry Jacks Pty Ltd[2] and Moffat on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd[3] a ham fisted or insensitive comment will not ordinarily, of itself, suffice to establish "less favourable" treatment.

[16] I accept that Ms Kleinig felt offended by the manner in which the male attendant dealt with her in providing access to the Sea Viper. I find that the male attendant's words and actions were insensitive and rude. To that extent I find that Ms Kleinig was treated unfavourably in the provision of a service. However, that is not all that Ms Kleinig must establish. The Act is predicated on an analysis of comparative treatment of people. Ms Kleinig must show that because of her impairment, she has been treated less favourably than others without her impairment, in the same circumstances.

[17] The rudeness to which Ms Kleinig was subjected directly related to her impaired left arm. On this basis, I find that any treatment she received was because of her impairment.

[18] As to the next issue, it is helpful to define the comparator for the purpose of deciding whether she has been treated less favourably than the comparator in circumstances that are the same or not materially different. Both Ms Kleinig and the respondent addressed the matter by reference to people with no impairment or disability who were visiting the park or accessing the Sea Viper. I think that is too broad, given the requirement to consider circumstances that were the same as or not materially different from the circumstances surrounding Ms Kleinig's treatment.[4] I consider the Act contemplates a person who does not have an impaired left arm, but who nevertheless may have some difficulty riding on the Sea Viper safely and who is trying to gain access to the ride. That may be for example a very short person_._

[19] How would such a person be treated? Given the height restrictions that apply to patrons of rides at theme parks, the attendant may well query another attendant as to whether a person's height has been checked. The attendant may well use some gesture to refer to the patron. That would be reasonable conduct given the primacy of safety considerations on rides such as the Sea Viper. In this hypothetical situation and indeed in the circumstances involving Ms Kleinig, it is not the act of checking on the safety of a person to ride on the Sea Viper which is in issue. It is the insensitive and rude way in which the enquiry was made, which is the unfavourable treatment complained of in Ms Kleinig's case.

[20] Was Ms Kleinig treated less favourably, by being the subject of rudeness than the comparator would have been treated? The answer to that question must be yes. It is a nonsense to think that the respondent and its employees, engaged in the provision of entertainment, would be rude to their patrons as a matter of course. Mr Cameron, the Operations Manager of Sea World gave evidence that there is a code of conduct in the business and that guests are treated respectfully.

[21] For these reasons, I find that Ms Kleinig was the subject of direct discrimination when she sought access to the Sea Viper ride at Sea World, on 12 December, 2013.

[22] I reject the submissions of the respondent. As set out earlier it is the rudeness of the male employee in gesturing at Ms Kleinig's impaired arm and not making eye contact with her, whilst making an enquiry as to whether she had been checked to ride the Sea Viper, which amounts to discriminatory conduct. It is not the fact of an enquiry itself which has been found to be discriminatory conduct. The conduct of the male employee is hamfisted and insensitive as suggested by the respondent, however, I have found it to be more than that. I have found the employee's conduct to be rude. I consider the circumstances in this case to be different to those under consideration in Malone's case, where it was found that the comments in question were part of a private conversation, not intended to be overheard and not inherently nasty. Member Jean Dalton, as she then was, expressed the view that: "...the making of a single remark might in appropriate circumstances constitute discrimination within the meaning of the Act."[5] In Moffat's case, the comments in question were found to have formed part of a legitimate conversation, despite being insensitive.[6]

[23] It is a matter of degree and judgment, dependent on the facts in each case as to whether comments and actions which cause offence amount to treatment which is "unfavourable in any way". It is that finding which then spurs the analysis as to whether the unfavourable treatment in the provision of services was a result of discrimination. In my view the words in section 46(1)(d) of the Act are very broad and catch any treatment which could objectively be assessed as "unfavourable", bearing its ordinary meaning. I have found rudeness, where the respondent has urged a finding of mere "hamfistedness" or "insensitivity". In this case there were many more courteous ways in which Ms Kleinig could have been treated. A simple enquiry directed to her, as to whether she had been issued with a wristband, would have sufficed.

[24] Given that it was the rude manner in which Ms Kleinig was treated, rather than the enquiry as to safety to ride the Sea Viper, which has been found to be discriminatory conduct, I do not consider that any of the exemptions under section 106 and 108 of the Act are engaged.

[25] I find that the respondent is vicariously liable for the conduct of the male employee under section 133 of the Act. I am not satisfied on the balance of probabilities that the respondent took reasonable steps to prevent its employee from contravening the Act. In this regard, I rely on the evidence of Mr Carter, who in cross-examination said that there had been no recent training of staff in relation to guests with disabilities. None of the training records attached to Mr Carter's statement expressly refer to training in the respondent's code of conduct which Mr Carter suggested required respectful treatment of guests.

[26] Ms Kleinig's statement of contentions, filed 18 August, 2014 makes a complaint of indirect discrimination in the provision of services, arising out of an incident which occurred at Wet and Wild on 14 December, 2013. Her statement of evidence, refers to both direct and indirect discrimination arising out of the incident.

[27] It is alleged that on 14 December, 2013, Ms Kleinig attended Wet and Wild with her son Lucas and friend Mr Rocco. She was still wearing, the wristbands issued at other theme parks in the previous days. She was issued with a further wristband by guest services on arrival at Wet and Wild. Later in the day she rode on the Kamikaze ride. Ms Kleinig's evidence is that there was a delay on the ride and during that time she was pointed at and made the subject of rude comments by other patrons who blamed her impairment for the delay. Ms Kleinig says that when she reached the end of the ride a male attendant, since identified as Matthew Ebeling, rudely asked her to take her wristbands from other parks off because she was being an inconvenience through them not being able to see the Wet and Wild band properly. Ms Kleinig's evidence is that she told Mr Ebeling that it was impossible for her to remove the wristbands because she had no hand to do so. She asked for his help. He told her to go to guest services. Ms Kleinig said that people were looking at her during this exchange.

[28] Mr Rocco's evidence is that he saw an exchange occur between Ms Kleinig and an attendant, but did not hear anything said. He observed Ms Kleinig to be upset when she returned to the group afterwards.

[29] Lucas Kleinig made a written statement with the assistance of his mother and gave evidence. Under cross examination Lucas had no recall of what was said to his mother by the ride attendant. Given his young age it is difficult to attribute any weight to Lucas' evidence. Lucas was 10 or 11 years of age at the hearing.

[30] Mr Ebeling gave evidence. He had no recall of the incident at all. His evidence is that he recalled on multiple occasions receiving, at toolbox meetings, training on the ride safety system and in particular, the use of different coloured wristbands for guests with a disability and how to ensure compliance with the system, including appropriately sensitive communications with guests, and also liaising with the Guest Services department, where appropriate. The respondent submitted that this evidence was not challenged.

[31] The respondent has submitted that Ms Kleinig's evidence should not be accepted on the basis that her version of events has changed over time, it is inconceivable there was time at the bottom of a busy ride for this conversation to occur and she is prone to exaggerate.

[32] Although Ms Kleinig was clearly very distressed when conducting her case and giving evidence, I nevertheless found her to be honest. I accept her evidence and find that she was asked by Mr Ebeling to remove the wristbands from other theme parks. Mr Ebeling's statement of evidence records that it is possible a life guard/ride attendant might ask a guest to remove excess wristbands if those items were causing trouble in identifying safety risks. He said this might occur as a result of a life guard/ride attendant's own initiative or at the request of a fellow staff member. He could not recall doing so himself. I did not find Mr Ebeling to be an impressive witness. For example, once called to give evidence he said that he had not read his witness statement and did not want time to read it. I prefer the evidence of Ms Kleinig.

[33] I am not however persuaded that Mr Ebeling was rude when he raised this matter with Ms Kleinig. Although Ms Kleinig became upset as a result of the discussion, she does not say in what way Mr Ebeling was rude. There is no evidence that for example he raised his voice or used a nasty tone or pointed to her impaired arm. I am unable to find that Mr Ebeling was rude as alleged. I think that is a matter of perception by Ms Kleinig alone.

[34] Although neither party made submissions to me on this point, I do not think any subsection of section 46(1) of the Act, other than subsection (1)(d) is relevant. In deciding Ms Kleinig's discrimination claim, the first enquiry must be what treatment Ms Kleinig received whilst receiving services from the respondent. No submissions were made on this point, however, from the facts it appears that the respondent provides a service to its guests in assisting them with access onto and exit from its rides. The treatment in question is the request to remove the wristbands of other theme parks. To trigger an enquiry as to whether Ms Kleinig was discriminated against or treated differently to others, that request must have been unfavourable in some way, when linked to the service provide.

[35] I do not think the request was unfavourable. It appears to me to be a reasonable request directed to ensuring ease of management of guests onto and off the Wet and Wild rides. There is no evidence that Mr Ebeling required Ms Kleinig to immediately remove the wristbands. I accept Ms Kleinig's evidence that removal of the bands was difficult, however, that is a task guest services, or one of her friends could have undertaken for her, before she went on another ride.

[36] Having found that there was no unfavourable treatment of Ms Kleinig on 14 December, 2013, it follows that there can be no finding of discriminatory conduct, whether direct or indirect arising out of the incident.

[37] Even if it were the case that the request made of Ms Kleinig to remove other theme parks' wristbands was unfavourable treatment, she must establish that because of her impairment, the treatment was less favourable than another person would be treated in circumstances that are the same or not materially different.

[38] The appropriate comparator in this case is a person who does not have Ms Kleinig's impaired arm, but who nevertheless is required to wear a wristband issued by theme parks to signify an ability to undertake a particular ride safely. On the basis of Mr Ebeling's evidence that a ride attendant might ask a person to remove excess wristbands if those items were causing trouble in identifying safety risks, I find that a comparator would be treated the same way as Ms Kleinig. For these reasons I find that Ms Kleinig has not been the subject of direct discrimination.

[39] Ms Kleinig has raised indirect discrimination by contending that in asking her to take the wristbands off, the respondent's employee imposed a term that she was not able to comply with, with one hand. Ms Kleinig says that most visitors to the park who had both hands would be able to comply with that term, but she was not. She says that it was not reasonable to expect that she remove the wristbands with only one hand.

[40] I do not consider Ms Kleinig has been the subject of indirect discrimination. I accept the submissions of the respondent that no term or condition in the sense of a compulsion or obligation was imposed on Ms Kleinig for continued access to rides at Wet and Wild. Mr Ebeling, acting as an employed ride attendant made a mere request, which was reasonable in the circumstances.

[41] Even if the request could be interpreted as a term or condition and accepting that Ms Kleinig found it difficult to remove the wristbands unaided, she has not properly addressed the complexities of demonstrating that a higher proportion of people without an impairment could comply with the term or condition. The base pool of people for the purpose of comparison identified by Ms Kleinig is people with two hands who are required to wear wristbands. Given that wristbands are issued to very many people with a variety of disablilities, it is not possible to say, without evidence and as a matter of inevitable inference, that a higher proportion of those people could remove their wristbands unaided, than people with only one hand.[7]

[42] Finally, in terms of an analysis of indirect discrimination on these facts, I find that the request was reasonable to aid in the safe and efficient provision of services to guests of Wet and Wild.

[43] Because of the findings that Ms Kleinig was not the subject of direct or indirect discrimination on 14 December, 2013, it is not necessary to determine the question of whether an allegation of indirect discrimination can be maintained in this case, as a matter of law.

[44] Ms Kleinig complains that on 15 December, 2013 she visited Movie World at approximately 12 pm and a female guest service employee at the guest services office used the word "assessed" several times in relation to her as a guest.

[45] Ms Kleinig's evidence is that she did not think the employee should use the word "assessed" as she was not medically trained. She asserted that the words "safety-check" should have been used. Although framing her claim as one of direct discrimination, a change was made at the end of the hearing. Ms Kleinig submitted that the 15 December, 2013 incident was not a discrimination issue, just a matter of concern. In her submissions, she did however refer to her difficulty with the Movie World wristband she wore on that day.

[46] During the evidence it emerged that in an effort to remove the Movie World wristband, Ms Kleinig used a cigarette lighter and burnt herself. The wristband was placed on her impaired arm, because she said she had been in trouble the previous day for having the band on her other arm. She said that she used this method to remove the wristband because it was cutting her circulation. In cross examination Ms Kleinig agreed that she was not required to put the wrist band on that arm or to wear a wrist band at all. She could in fact have carried the wristband and simply shown it when necessary. It was put to her that she could have sought assistance to remove the wristband.

[47] I do not consider that any finding of direct or indirect discrimination can be made in relation to Ms Kleinig wearing the wristband on her impaired arm and injuring herself when trying to remove the band. The incident did not form part of her claim or contentions. There is no evidence and no submissions from Ms Kleinig in relation to how she has been treated less favourably than others in these circumstances. The actions taken by Ms Kleinig were voluntarily undertaken by her.

[48] The respondent contends that the use of the term "assessed" was factual, short and not inherently nasty. It was used in the discharge of the employee's duties and whilst adhering to the ride safety system devised by the respondent. I agree with these contentions. There is no evidence to the contrary. I find that Ms Kleinig did not suffer any unfavourable treatment in the provision of services to her by the guest services employee, through the use of the word "assessed". I find that the word does not connote "medical assessment", rather it accurately describes a process of determining if a person with a disability can safely ride on the attractions at Movie World.

[49] Having found that the incident on 13 December, 2013 was the result of direct discrimination, it is necessary to determine what flows from that finding.

[50] Ms Kleinig made no submissions in relation to the amount of any award of damages, being prepared to leave the issue to the Tribunal. The respondent submitted that any award should be nominal.

[51] Ms Kleinig seeks an order that the respondent re-train their staff on dealing with guests with disabilities and look at not using wristbands.

[52] The respond submits that the evidence reveals that the respondent regularly trains its staff on dealing with people with disabilities and continually reviews its processes. It submits that no order should be made in relation to re-training. Based on the evidence of Mr McKay and Mr Carter, I accept that the respondent relevantly trains its staff and reviews its processes. I do not intend to make any order in this regard.

[53] As to any damages, Ms Kleinig gave evidence she has suffered stress and anxiety, she has experienced feelings of shame, she has felt the need to wear a prosthetic arm which she find distressing and she requires psychological and psychiatric treatment. Ms Kleinig takes anti-depressant medication and her dosage has increased, she suffers nightmares and relives childhood traumas. She cannot watch advertisements in relation to the respondent's theme parks. Ms Kleinig has not worked since her visit to Movie World in 2013.

[54] At the hearing, evidence was given in relation a range of difficulties Ms Kleinig was dealing with prior to the 12 December, 2013 incident. Those difficulties resulted in her receiving psychiatric care. Dr Fraser, her consulting psychiatrist, gave evidence. He was not aware of the details of the 12 December, 2013 incident or the incidents on 14 and 15 December, 2013. Dr Fraser's clinical note made on 18 December, 2013 did not record any reference to the incidents, although he said that Ms Kleinig had subsequently complained about the incidents to him. He said that he could not tease out as a cause of her current condition - the theme park incidents in 2013, as opposed to her other problems. However in re-examination in response to a question as to whether Ms Kleinig's mental state had got worse due to the 2013 incidents, he responded that the matters are aggravating her condition. Dr Fraser's evidence is that he has been focussed on her other problems in her treatment.

[55] The unfavourable treatment Ms Kleinig received on 12 December, 2013 was relatively low level. It would ordinarily attract only a nominal award of compensation, if at all. The consequence of the treatment is, however, alleged to be very serious. The difficulty is that there is no satisfactory evidence to assist me in the questions I must address.[8]

[56] I am satisfied based on Dr Fraser's evidence that the 12 December, 2013 incident played some role in aggravating her psychiatric condition, although it is not possible to say to what extent or how that aggravation is manifested. It is not possible on the evidence to say that all the matters complained of by Ms Kleinig as the loss and damage suffered by her, are attributable to the 12 December, 2013 incident.

[57] Doing the best I can, I award Ms Kleinig the sum of $500.00 for loss and damage suffered by her as a result of the 12 December, 2012 incident.

[58] The respondent requested that the issue of costs be dealt with at a later date. Ms Kleinig has not entirely failed in her claim. As a self-represented litigant, she is not entitled to an award for legal costs. If the respondent still wishes to make any submissions in relation to costs, bearing in mind the provisions of section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), it should file and serve those submissions by 20 August, 2015. The applicant should file and serve any response by 3 September, 2015.

[59] I order that the respondent Village Roadshow Theme Parks Pty Ltd pay to the applicant Danielle Kleinig, the sum of $500.00 within 28 days of the date of this Order.

[60] I order that the respondent file and serve any submissions in relation to costs by 20 August, 2015.

[61] I order that the applicant file and serve any submissions in relation to costs by 3 September, 2015.

[1] Exhibit 3 in the proceedings - Report of Dr Clive Fraser, Consultant Psychiatrist, dated 7 January, 2015.

[2] [2004] QADT 11.

[3] [1998] QADT 16.

[4] Purvis v New South Wales [2003] HCA 62; [2003] 217 CLR 92 at [222] - [232].

[7] The State of Queensland v Che Forest [2008] FCAFC 96; (2008) 168 FCR 532 at [8].

[8] Bell v State of Queensland & Anor (No.1) [2014] QCAT 297 at [84], [85] and [89].