Myers v Alfred Hospital

Myers v Alfred Hospital - [2023] FCA 833 - FCA 2023 case summary — Zoe

Background 2 The applicant claims that the respondent discriminated against her when she attended the Alfred Hospital for a medical appointment and procedure at its Bariatric Clinic on 24 June 2021. At the time, the applicant was suffering from a skin rash on her face. The timing of her attendance coincided with the height of the COVID-19 pandemic, and public and private policies were in place to mitigate the risk of the spread of the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was causing COVID-19, including the requirement to wear masks in public places and elsewhere. The Alfred adopted policies whereby, subject to some exceptions, all persons within the hospital's premises were required to wear masks or face shields and which promoted social distancing. The applicant had a medical certificate from a medical practitioner dated 21 June 2021 stating that she had a rash that was likely to have been caused by mask-wearing, and that she was advised not to wear a mask until her condition resolved. The applicant alleges that the respondent engaged in conduct said to amount to unlawful discrimination, including making her wear a face shield, making her sit in an isolated cubicle away from the general waiting area, threatening to refuse to provide medical services to her, and providing her with sub-standard medical care. The respondent denies these allegations. 3 The applicant claims that she made a complaint to the Australian Human Rights Commission on the day of the alleged conduct, namely 24 June 2021. Documents before the Court suggest that the applicant made an online complaint to the Commission in late July 2021. The precise date of the complaint is immaterial. A delegate of the President of the Commission issued a notice of termination dated 8 December 2021 pursuant to s 46PH(2) of the Australian Human Rights Commission Act, stating that the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation. A letter containing the delegate's reasons for the termination advised the applicant of her ability to apply to the Federal Circuit and Family Court of Australia or this Court to have the allegations decided by a court. The letter specifically stated that an application to a court must be made within 60 days of the date on the notice of termination. 4 On 23 August 2022, the applicant filed an originating application alleging that the respondent had engaged in conduct that was unlawful pursuant to the Disability Discrimination Act 1992 (Cth) and seeking an extension of time. Apart from the fact that the application was filed out of time, the parties accepted that the applicant was not otherwise required to obtain leave to commence the proceeding: cf, s 46PO(3A) of the Australian Human Rights Commission Act. The argument on the application to extend time proceeded by reference to claims foreshadowed by the applicant in a draft amended originating application dated 10 November 2022, which was indorsed with details of the applicant's claim in the style of a statement of claim.

[5]

Overview of the applicant's claims 6 The applicant claims that the respondent directly discriminated against her on the ground of her disability in relation to access to premises and to the provision of services. The disability by which the applicant claims she was afflicted was the facial skin rash. The relevant definition of "disability" under s 4 of the Disability Discrimination Act is broad, encompassing seven enumerated sub-categories, and includes behaviour that is a manifestation of a disability. Counsel for the applicant submitted that the definition of "disability" would cover a rash, and counsel for the respondent did not seek to put in issue whether, for the purposes of this application, the applicant had a disability at the time of the claimed discrimination on 24 June 2021. The definition of "disability" in s 4 includes the following - disability, in relation to a person, means: ... (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person's body; or ... To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability. 7 In relation to the allegations of discrimination, the applicant relied on ss 5, 23(b), (d), and (e), and 24(b) and (c) of the Disability Discrimination Act. The relevant provisions are as follows - 5 Direct disability discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments. ... 23 Access to premises It is unlawful for a person to discriminate against another person on the ground of the other person's disability: … (b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or ... (d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or (e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; … 24 Goods, services and facilities 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: ... (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. 8 Central to the relevant paragraphs of ss 23 and 24, on which the applicant relied, is the concept of direct discrimination in s 5, to which I will return.

[7]

The first alleged incident 10 The applicant claims that, upon her entry into the hospital on 24 June 2021 at approximately 9.30 am she presented to hospital staff a letter from a medical practitioner, Dr Abdul Basit, dated 21 June 2021 explaining that she had a rash on her face. The letter stated that the rash was most likely secondary to wearing a mask, and that the applicant was advised not to wear a mask until her condition resolved. The applicant alleges that that letter was not read by any member of staff. 11 The applicant claims that a hospital worker placed a shield over her face without her consent. There are photographs in evidence showing the applicant wearing a face shield comprising a cushioned band around the top of the applicant's head with a clear plastic shield extending down the applicant's face which is supported by the cushioned band. The plastic face shield does not itself appear to be in contact with the applicant's face. The type of face shield shown by the photographs would be familiar to those living in Melbourne during the height of the COVID-19 pandemic. 12 The applicant claims that placing a shield over her face "amounted to treating the [a]pplicant less favourably than the respondent would treat a person without the rash in circumstances that were not materially different", and that this amounted to "discrimination against her on the ground of disability in the provision of medical treatment and associated facilities and access to premises", relying on ss 5, 23(b) and (e), and 24(b) and (c) of the Disability Discrimination Act. The applicant also claims that the conduct of which complaint is made involved a failure "to make reasonable adjustments for the [a]pplicant; which had the effect that the [a]pplicant was, because of the rash, treated less favourably than a person without the rash would be treated in circumstances that are not materially different". In support of this latter claim the applicant advanced the following particulars, which are set out verbatim - a) Failure to read Medical Certificate b) Failure to ask Applicant what Medical Certificate related to c) Failure to warn Applicant of proposed response to her not wearing a mask d) Failure to ask the Applicant whether she consented to response to her not wearing a mask e) Negligent roughness in placing face-shield over Applicant's face f) Failure to provide alternatives to face-masks and shields with less detrimental effects on skin g) Failure to maintain appropriate policy to avoid the above-mentioned failings h) Failure to train workers in interacting with individuals not wearing face-masks, including those suffering from conditions affecting their skin 13 The applicant claims that the face shield caused injuries to her, namely - (a) exacerbation of her skin rash; (b) blistering; (c) a cut to her neck; (d) head-aches; (e) dry-retching; (f) symptoms, being those stemming from a reflux attack, mistaken for a heart attack; (g) residual marks, swelling, and lumps on her face; and (h) psychological and emotional damage, distress, and humiliation. 14 In support of her claim that she suffered injuries, the applicant produced a letter from Dr Basit, dated 14 February 2022, in which he stated that he examined the applicant subsequent to the claimed incident and noted that the applicant's face was "swollen, red, and that there was a rash on her face which was painful and very uncomfortable". The letter noted the presence of small blisters, and stated that the rash required treatment and eventually settled down. 15 The response of the respondent to this and other allegations by the applicant was that it took risk mitigation and safety around the spread of COVID-19 extremely seriously because of its duties of care to staff and patients. The respondent pointed to its written policies and practices requiring screening of staff and visitors, and the wearing of masks subject to exceptions. It submitted that at the time of the applicant's 24 June 2021 visit, patients at the Alfred included patients who were acutely vulnerable and particularly likely to be adversely affected by COVID-19, and that face shields and procedures for physical distancing for patients not wearing face masks were identified as appropriate risk mitigation strategies, and as a means of reassuring patients and staff at a time when anxiety around the contraction of COVID-19 was extremely high. The respondent maintained that it was standard practice at the relevant time to require the use of face shields by individuals with a face mask exemption, and that patients with face mask exemptions were routinely managed in a separate waiting area for physical distancing purposes. 16 In relation to the applicant's claimed injuries, the respondent presented in a hearsay form an opinion of Associate Professor Douglas Gin, who is a fellow of the Australasian College of Dermatologists and Head of the Dermatology Department at the Alfred. There was no objection to the evidence in this form: cf, Hamilton v New South Wales [2013] NSWSC 1437 at [35]-[39] (Bellew J). Associate Professor Gin reviewed photographs supplied by the applicant and gave the following opinions, which I set out in summary form - (a) the applicant had a fairly severe case of seborrheic dermatitis; (b) seborrheic dermatitis is idiopathic, which means it is not caused or triggered by anything in particular, and is a common condition; (c) the photographs were not consistent with a reaction - allergic or otherwise; (d) rather, the skin condition recorded in the photographs was seborrheic dermatitis; (e) the applicant could have had rosacea, but Associate Professor Gin could not see evidence of rosacea in the photographs; (f) while the wearing of a face mask might have exacerbated the applicant's skin condition, the wearing of a face shield would be highly unlikely to have done so; (g) any allergic reaction to the face shield would be localised to the hairline where the shield made contact with the skin, and there was no evidence in the photographs of an allergic reaction; and (h) he has never seen anyone have a reaction like that alleged by the applicant to a face shield, and no dermatologist would make that connection.

[8]

The second alleged incident 17 The applicant claims that once the face shield had been placed over her face, she was directed by Alfred staff to the Bariatric Clinic where another worker at the hospital directed her to sit in a cubicle. The applicant alleges that she was weighed by a nurse, and then directed to return to the cubicle to wait for a doctor. The applicant claims that the requirement to wait in a cubicle amounted to treating her less favourably than the respondent would treat a person without a rash in circumstances that were not materially different and that this amounted to direct discrimination against her on the ground of disability in the provision of medical treatment and associated facilities and with respect to access to premises, relying on ss 5, 23(b), (d) and (e), and 24 of the Disability Discrimination Act. The applicant also claims that the alleged conduct involved a failure "to make reasonable adjustments for the [a]pplicant; which had the effect that the [a]pplicant was, because of the rash, treated less favourably than a person without the rash would be treated in circumstances that are not materially different". In support of this latter claim, the applicant advanced the following particulars, which are set out verbatim - a) Failure to assess whether it was necessary to require the Applicant to wait in the cubicle b) Failure to allow the Applicant to wait in an area which was less isolated and distressing c) Allowing or maintaining a level of heat in the cubicle which increased irritation to skin on the Applicant's face d) Allowing or maintaining a level of brightness of lighting in the cubicle which also increased irritation to skin on the Applicant's face e) Isolating Applicant in the cubicle when she required attention to damage to her face from shield and emotional distress f) Failure to maintain appropriate policy to avoid the above-mentioned failings g) Failure to train workers to avoid the above-mentioned failings 18 In relation to this second alleged incident, the respondent maintained the position summarised at [15]-[16] of these reasons.

[9]

The third alleged incident 19 The applicant claims that she asked nursing staff on two occasions whether she could remove the face shield because she had a medical certificate, and was told that she could not. Further, she says that she telephoned the Alfred whilst waiting in the cubicle, seeking to speak with the Chief Executive Officer about her medical certificate and the shield, but the individual who answered the telephone terminated the call without further discussion. 20 On the basis of the alleged conduct just described, the applicant claims that refusing to allow her to remove the face shield amounted to treating her less favourably than the respondent would treat a person without the rash in circumstances that were not materially different and that this amounted to discrimination against her on the ground of disability in the provision of medical treatment and associated facilities and with respect to access to premises, relying on ss 5, 23(b) and (e), and 24 (b) and (c) of the Disability Discrimination Act. As with other complaints, the applicant also claimed that the alleged conduct involved a failure to make reasonable adjustments for the applicant in terms similar to that advanced in respect of the other alleged incidents. In support of this latter claim, the applicant advanced the following particulars, which again are set out verbatim - a) Failure to read Medical Certificate b) Failure to ask Applicant what Medical Certificate related to c) Failure to examine whether the shield has been placed on the Applicant in a manner which would minimise the risk of injury or distress d) Failure to provide alternatives to face-masks and shields with less detrimental effects on skin e) Failure to maintain appropriate policy to avoid the above-mentioned failings f) Failure to train workers in interacting with individuals not wearing face-masks, including those suffering from conditions affecting their skin 21 In relation to the third alleged incident, the respondent also maintained the position summarised at [15]-[16] of these reasons.

[15]

The applicable principles relating to extensions of time 30 In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604 (Tu'uta Katoa), the High Court considered this Court's discretion to extend the time for the making of an application to the Court under s 477A(2) of the Migration Act 1958 (Cth) in the context of determining whether there was jurisdictional error by a judge of this Court in considering an application under s 477A(2). Relevantly, that power was conditioned on the Court being "satisfied that it is necessary in the interests of the administration of justice to make the order" which involves an evaluative judgment thereby rendering the decision discretionary: see, Tu'uta Katoa at [10] (Kiefel CJ, Gageler, Keane, and Gleeson JJ). It was held that no mandatory relevant considerations arose in relation to s 477A(2) of the Migration Act. Having concluded that the evaluation under s 477A(2) did not require any particular considerations to be taken into account, the plurality referred to the "well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)", citing with approval the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 (Hunter Valley). Paragraph 11(1)(c) of that Act, like s 46PO(2) of the Australian Human Rights Commission Act, provides for a discretion to extend time to bring the relevant application that is unfettered. 31 The decision of Wilcox J in Hunter Valley has been repeatedly cited with approval by the Full Court of this Court in a variety of contexts involving statutory discretions to extend time. Specifically, it has been applied by judges of this Court in applications under s 46PO(2) of the Australian Human Rights Commission Act: see, Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624; 151 FCR 524 at [11]-[12] (Cowdroy J); Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24] (Weinberg J); Ferrus v Qantas Airways Ltd [2006] FCA 812 at [19] (Collier J); Stepien v Department of Human Services [2018] FCA 1062 (Stepien) at [22] (Mortimer J); and Chircop v Technical and Further Education Commission [2022] FCA 1015 at [72] (Katzmann J). Indeed, in Stepien, Mortimer J held at [22] that the discretion in s 46PO(2) is of the same character as that to be found in s 11 of the Administrative Decisions (Judicial Review) Act that was considered by Wilcox J in Hunter Valley, and that Hunter Valley had become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time. Importantly, Mortimer J also observed at [21] that discretionary powers such as the one in s 46PO(2) "inevitably involve consideration of what is in the interests of the administration of justice, that being the Court's core function". 32 In Hunter Valley at 348-349, Wilcox J identified a number of factors that may inform whether the Court should exercise its discretion to enlarge time. The factors identified constitute guidance, and are not exhaustive. The particular considerations identified by Wilcox J which are of relevance to the present case are - (a) the Court will not grant an extension unless positively satisfied that it is proper to do so; (b) the prescribed period, which in this case is 60 days, is not to be ignored; (c) prima facie, the very existence of a prescribed period presumptively implies that an application brought outside of that period should not be entertained and, therefore, it will be at least necessary for an applicant to show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time; (d) any action taken by an applicant, other than making the relevant application in relation to which an extension of time is sought, may be relevant to the acceptability of the explanation for the delay; (e) any prejudice to a respondent occasioned by the delay is a material factor militating against the grant of an extension, noting that the mere absence of prejudice to the respondent is not enough to justify the grant of an extension because public considerations may intrude; and (f) the merits of the substantial application, being the application in respect of which the applicant seeks an extension of time, are properly to be taken into account. 33 In Stepien, Mortimer J at [23] distilled the principal matters to which Wilcox J referred as being three: (1) any explanation for the delay; (2) any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted; and (3) the prospects of success of the appeal if an extension of time were to be granted. To these matters I add that the exercise of a discretion with no express fetters will be lawful where it is within the bounds defined by the subject matter, scope, and purpose of the legislation conferring that discretion: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505 (Dixon J); R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; 144 CLR 45 at 49; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (French CJ). Therefore, the exercise of the discretion to extend time under s 46PO(2) might permissibly take account of those features of the Australian Human Rights Commission Act. In terms of the history of s 46PO, the section was inserted by the Human Rights Legislation Amendment Act (No. 1) 1999 (Cth). The Australian Human Rights Commission was then known as the Human Rights and Equal Opportunity Commission. The presumptive time limit in s 46PO(2), as inserted by the 1999 amending Act, was 28 days. That time limit was amended to 60 days by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). The Minister's Second Reading Speech for the 2009 amending Act noted - Another key amendment to [the Australian Human Rights Commission Act] is to extend from 28 days to 60 days - that is, to more than double - the period in which a person can take a complaint to the Federal … Court after it is terminated by the commission [sic]. This gives effect to another recommendation of the Productivity Commission's report. 34 The Productivity Commission report to which the Minister referred is Report No. 30: Review of the Disability Discrimination Act 1992, published 30 April 2004 which addressed the issue of time limits. It appears from the Productivity Commission report that the concern was to balance two competing policy goals. On the one hand, the time limit for bringing an application to this Court should not be so short as to make it unjust upon those wishing to invoke the Court's jurisdiction by forcing such persons to scramble to put together their applications. On the other hand, the time limit should not be of such a size as to act unjustly towards respondents. The report noted the interest of respondents in certainty as to the finality of claims, and their interest in there being a relatively short time limit so as to ensure the availability of the relevant personnel and documentation germane to defending any application which may be made. Ultimately, the Productivity Commission report recommended that the appropriate balance between these competing sets of interests was to be achieved by increasing the time limit to 60 days. These considerations give complexion to Wilcox J's statement in Hunter Valley that the time limit is not to be ignored.

[17]

The reasons for the delay in bringing the originating application 36 The applicant offered a number of reasons for her delay in bringing the originating application. First, the applicant deposed in her affidavit dated 11 November 2022 that she had found it difficult to concentrate and to process information since the alleged events of 24 June 2021. The applicant stated that her symptoms led to her obtaining a referral to a psychologist who diagnosed her with an anxiety-related condition. That condition, and its effects upon her mental faculties, are said to provide some explanation for her delay in filing the originating application. They are also said to explain her failure to comprehend the fact that the letter accompanying the notice of termination of the applicant's complaint stated expressly that any application to this Court pursuant to s 46PO(2) of the Disability Discrimination Act had to be brought within 60 days. In this regard, the applicant relied on the decision in Culpin v Scandinavian Tobacco Group Australia [2013] FCCA 1666, arguing that that decision stands for the proposition that a lack of clarity of thought, stemming from a diagnosed psychiatric condition, is a consideration which is relevant to determining whether the delay in bringing an application is justified. 37 Second, the applicant submitted that she found the process of determining the appropriate body before which to bring her complaint for unlawful discrimination to be a confusing one. She said that this was partially a function of her anxiety-related condition and the general difficulty which an individual, in circumstances such as hers, faces when seeking to identify the appropriate institution before which an unlawful discrimination complaint is to be made or escalated. She pointed to the fact that she had contacted several bodies about her complaint prior to her receipt of the notice of termination from the Commission as evidence that she found the determination of the appropriate body to be a difficult task. Further, the applicant stressed that her communications with bodies other than the Commission and this Court, prior to her receipt of the notice of termination, were frequent and often of her own initiative by way of follow-up, such that "[s]he repeatedly attempted to make known her desire to have her substantive complaint promptly dealt with [sic]". 38 Third, after receipt of the notice of termination which was accompanied by the letter alerting the applicant to the 60-day time limit within which to bring an application to this Court, the applicant claimed that - (a) she sought to advance her claim via various bodies outside of the Court, being the National Health Practitioner Ombudsman, the AHPRA, Victoria Police, the Victoria Police Conduct Unit, the Victorian Ombudsman, and the Victorian Supreme Court; (b) she made an attempt to file a proceeding in the Supreme Court of Victoria; and (c) she contacted a number of law firms, namely Maurice Blackburn, Slater and Gordon, and Shine Lawyers. 39 Fourth, the applicant submitted that after the expiry of the 60-day period - (a) she again sought to advance her claim before bodies other than this Court, namely the Supreme Court of Victoria, Victoria Police, Queensland Police, the Royal Commission into Abuse of People with Disabilities, and the Magistrates' Court of Victoria; and (b) lodged a complaint, which was formally deficient, with the Magistrates' Court of Victoria on 9 March 2022, which was later filed on 23 March 2022 after the applicant lodged an amended version of the claim to correct its original deficiencies, which made reference to a claim for discrimination on the ground of disability, including in relation to the absence of the making of reasonable adjustments, under the Disability Discrimination Act. As I stated earlier, that claim was struck out on 12 August 2022 for want of jurisdiction. 40 These second, third, and fourth matters were relied upon by the applicant to contend that she actively sought to further her claim for unlawful discrimination, before receiving the notice of termination, during the 60-day period after receiving the notice, and further still after the expiry of that 60-day period. All of the four matters referred to above were broadly relied upon by the applicant as providing a cumulative explanation for her delay in bringing her originating application.

[21]

The nature of, and reasons for, the delay in bringing the originating application 45 The respondent submitted that the applicant had not provided an acceptable explanation for her delay in bringing the proceeding. 46 First, the respondent submitted that the applicant was on notice of the time within which she was permitted to bring an application before the Court under s 46PO(1) of the Disability Discrimination Act. That notice is said to flow - (a) from the express reference to the 60-day time limit in the letter that accompanied the notice of termination; (b) implicitly from the fact that the respondent's defence to the applicant's Magistrates' Court claim, filed 19 April 2022, pleaded want of jurisdiction of that Court to determine the applicant's claim; and (c) expressly from the fact that an affidavit affirmed 13 July 2022, in support of the respondent's application to strike out the applicant's Magistrates' Court claim, stated that the applicant's claim was required to be brought before the Federal Court of Australia or the Federal Circuit and Family Court of Australia, pursuant to the Australian Human Rights Commission Act. 47 Accordingly, the respondent submitted that the explanation for the delay proffered by the applicant was not acceptable, and that the applicant's actions indicated that she elected to press her discrimination claim in the forum of the Magistrates' Court to the exclusion of any claim before this Court. 48 Second, the respondent submitted that where an individual, such as the applicant, chooses "to bring a multitude of complaints in a multitude of fora, it is incumbent upon [such an individual], acting properly and diligently, to carefully review [relevant] correspondence". The respondent submitted that the applicant, due to her pursuing redress from multiple bodies, should have been astute to correspondence from such bodies and, with that in mind, she failed to act properly and diligently because she did not read and comprehend the reference to the 60-day time limit in the letter that accompanied the notice of termination. 49 Third, the respondent submitted that the length of the applicant's delay militates against an extension of time being granted because "6.5 months is a considerable delay in the context of a 60 day [sic] limit". It was submitted that "the longer the delay, the better the explanation needs to be".

[23]

The substantive merits of the originating application 51 The respondent submitted that the applicant's case lacked sufficient prospects of success to warrant the grant of an extension of time. It relied upon a number of factors in support of that submission. 52 First, it is said that on 24 June 2021, there was a series of public health measures in place to mitigate the spread of the virus, including the Stay Safe Directions (Metropolitan Melbourne) (No 3) dated 17 June 2021 to which I referred earlier. Further, the respondent says that ss 21 and 23 of the Occupational Health and Safety Act 2004 (Vic) required it to ensure, so far as was reasonably practicable, that there was a safe working environment for its employees and that persons other than its employees were not exposed to risks to their health or safety. In this regard, the respondent noted that s 47 of the Disability Discrimination Act provides an exemption - for what would otherwise be unlawful conduct - where the relevant conduct is done in accordance with statutory authority. 53 Second, the respondent submitted that the applicant's claims were unsupported by evidence, submitting that - (a) there was no credible evidence that the applicant could not wear a face shield due to her disability, or that the face shield caused her injury, relying on the opinions of Associate Professor Douglas Gin to which I referred earlier; (b) the applicant's claims regarding having a face shield placed onto her face, and the consequential physical harm she alleges occurred, were not the subject of an incident report or a security report; (c) the applicant's claims regarding being required to wait alone in a cubicle are unlikely to be substantiated; and (d) patients required to wear face shields in the Alfred at the time were permitted to wait in the general waiting area along with patients wearing face masks. 54 Third, it was submitted that the Alfred's policy of requiring face masks to be worn - noting that the applicant was not, in fact, required to wear a face mask but, rather, a face shield - was not directly discriminatory against the applicant because that policy applied universally. Accordingly, it was submitted that any of the treatment which the applicant received on 24 June 2021 was not "because of" her disability as required by subsections 5(1) and (2) of the Disability Discrimination Act. 55 Fourth, the respondent submitted that the applicant's reasonable adjustments claims were misconceived in the sense that a reasonable adjustment was made for the applicant on the basis of her disability, namely the requirement to wear a face shield as opposed to a face mask. 56 Fifth, and regarding only the sixth alleged incident, the respondent submitted that the applicant's claim was inconsistent with the contemporaneous clinical note which indicated that 2 mls of fluid were removed at the applicant's request.

[27]

The merits of the applicant's claims 60 I have concluded that the applicant's claims of contravention of the Disability Discrimination Act are not of sufficient merit to justify an extension of time to bring the proceeding, and that it would not be in the interests of the administration of justice to allow it to proceed. 61 The applicant's claims in respect of the six alleged incidents are advanced on the ground that there was direct discrimination, which is defined by s 5 of the Disability Discrimination Act in the terms which I set out at [7] above. A precursor to the current s 5(1) was considered by the High Court in Purvis v State of New South Wales [2003] HCA 62; 217 CLR 92 (Purvis). The differences between the subsections are not material to the authority of Purvis for present purposes. Gleeson CJ, who joined in the Court's orders but wrote separately, observed at [7] that the discrimination with which the Act is concerned is discrimination that is unjust and unlawful, and referred to the importance of context to the determination of whether discrimination against a person has occurred. Gummow, Hayne and Heydon JJ referred at [224] to the requirement of s 5(1) to identify all the circumstances. 62 In this case, context is important. I have already referred to the directions in force under the Public Health and Wellbeing Act. It is impossible to ignore that the respondent was providing medical services in June 2021 when there was a public health emergency on foot in relation to a disease caused by a contagious virus that resulted in the death of vulnerable people. Staying with the legal context, in addition to the specific obligations arising under various directions given by the Chief Health Officer, the respondent had stringent legal obligations as an employer, as an occupier, and had non-delegable duties of care to all its patients as the operator of a public hospital. It is also obvious that the consistent application of hospital policies addressing the COVID-19 risk would have been desirable in order to maintain staff morale and to create an environment where the apprehensions of staff, patients, and any visitors, were minimised. In the above legal and practical context, it would be counter-intuitive, and indeed it would offend common sense, to think that the respondent discriminated against the applicant in the way alleged because it took the protective measures of requiring the applicant to wear a face shield instead of a face mask, and directed her to a cubicle rather than a public waiting area. These were but particular implementations of policies and practices directed to requiring all persons on the hospital premises to take reasonable measures for the safety of others, and for their own safety, so as to minimise the risk of transmission of the virus. 63 Section 5(1) of the Disability Discrimination Act directs attention to whether there is less favourable treatment "because of the disability". This requires that a comparison be made. Here, the disability on which the applicant relies is a physical disability, namely the rash on her face as alleged in [2] of the draft amended originating application, which I take to include any behaviour that is a symptom or manifestation of the disability. Counsel for the applicant did not identify which component of the definition of "disability" in s 4 was engaged, but it may be assumed for present purposes that at least (c), (d), and (e) were arguably engaged. The comparison to be made is between persons with and without a facial skin rash. It has not been shown that there is any arguable case that the applicant, by reason of her skin rash, was treated any less favourably than any other person who attended the hospital. Under hospital policies and practices all persons entering the hospital were required, subject to various exceptions, to wear some sort of facial protection, to submit to screening, and to abide by social-distancing guidance. It is not at all clear how a face shield is less favourable, or that in the circumstances, waiting in a cubicle, where waiting alone routinely occurs in hospitals, could reasonably be regarded as less favourable treatment by any proper comparison. 64 Further, s 5(1) must be read with subsections (2) and (3), which bring within the concept of discrimination a failure to make reasonable adjustments with the effect that, because of the disability, the person is treated less favourably than a person without a disability in circumstances that are not materially different. This is in essence a failure to compensate for a disability. Section 5(3) provides that circumstances are not materially different merely because of the fact that the person with a disability requires that adjustments be made. At least in this case, the implementation of any requirement to make reasonable adjustments for the applicant by requiring her to wear a face shield rather than a face mask, and directing her to a cubicle rather than the general waiting area on the assumption she was not wearing a face mask, could not reasonably be characterised as discrimination against the applicant. The purpose of the adjustments was to accommodate the fact that the applicant did not wear a face mask because she possessed a medical opinion that advised that she should avoid wearing a face mask until her skin condition resolved. The alternative might have been to refuse the applicant entry to the hospital premises and to refuse her treatment. That did not occur because the practices of the respondent accommodated the applicant's position by requiring her to wear a face shield instead of a mask. Nor, in my view, is there any reasonable case that the respondent failed to make reasonable adjustments for the applicant's disability. In this regard there is no sufficient evidence that, viewed prospectively at the time, it was unreasonable for clinical or any other reasons to require the applicant to wear a face shield, or to wait in a cubicle, notwithstanding her skin condition. 65 In relation to the fourth incident that is the subject of the applicant's claims, there is no reasonable case that the doctor treated or proposed to treat the applicant less favourably than a person without the applicant's claimed disability by reason of that disability. At its highest, the evidence suggests that there was a conversation between the applicant and the doctor in which the applicant expressed her dissatisfaction with her experiences by stating that she was "quite annoyed and pissed off", which the doctor perceived was conveyed in a threatening tone, upon which he asked the applicant to desist or he would not see her. The applicant also alleges that the doctor's performance of a procedure where 2 mls rather than 1 ml of fluid were removed from her gastric band constituted direct discrimination. This strikes me as fanciful. Even assuming, for the purposes of analysis, that the applicant was advised by another medical practitioner at the Royal Melbourne Hospital that only 1 ml of fluid should have been removed, and that the gastric band had not been flushed, this does not speak to whether the applicant was treated less favourably at the Alfred because of her skin rash and inability to wear a face mask. 66 As to the loss and damage that the applicant claims that she has suffered, I am not satisfied that there is a reasonable case that the damage alleged was because of any conduct of the respondent amounting to unlawful discrimination. While this application was not the trial of the proceeding, and the parties were not required to bring forward their entire evidentiary cases, the opinions of Associate Professor Gin which I summarised at [16] were unchallenged. Given those opinions, there was at least some onus on the applicant to advance a contradictory medical case so as to raise a reasonable triable issue in relation to those opinions. Further, even on the assumption that the applicant sustained injury as a result of the requirement to wear a face shield, or to wait in a cubicle at the hospital, I am not satisfied that there is a reasonable case that this was because of any unlawful discrimination, as distinct from injury that might have been incidental to the application and wearing of the face shield, or the state of the air-conditioning in the cubicle, or as a result of what appears to have been the applicant's general state of agitation while on the hospital premises.

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Judgment (29 paragraphs)

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Legislation Cited (9)

Cases Cited (14)