Wood v Calvary Health Care ACT Ltd

The legislation 7 In the Federal Magistrates Court, the appellant alleged direct discrimination in the provision of a service as proscribed by ss 5 and 24 of the DD Act. Both parties were represented by counsel at the hearing in the Federal Magistrates Court. There was no issue before the Federal Magistrate that the appellant had a "disability" as defined in s 4 of the DD Act. His Honour noted at [20] that the hospital had accepted that she suffered from a disability by reason of past intravenous drug use and morphine dependency. 8 The Federal Magistrate dealt with the application before him as an allegation of a refusal to provide a service contrary to s 24(1)(a). His Honour understood the relevant service to be the provision of home visits under the CAH program. Discrimination in the areas of goods, services and facilities is proscribed by s 24(1), which provides: 24 Goods, services and facilities (1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person. Subsection 5(1) of the DD Act defines disability discrimination as follows: (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. Section 10 of the DD Act deals with situations where the person's disability is not the only reason for the putative discrimination. That section provides: 10 Act done because of disability and for other reason If: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act); then, for the purposes of this Act, the act is taken to be done for that reason. The hospital raised the defence of unjustifiable hardship under s 24(2) of the DD Act. That subsection provides: (2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available. What constitutes "unjustifiable hardship" is addressed in s 11.

The Federal Magistrate's reasons for judgment 9 A significant factual issue before the Federal Magistrate was whether the appellant had requested that she be treated at her home when she was first seen by Ms Hazelton. Ms Hazelton's evidence was that the appellant had asked not to be admitted as an inpatient but to attend the hospital each day for treatment. His Honour said (at [15]): If Ms Hazleton's version of events is to be accepted the applicant's case fails at the outset. There could be no unlawful discrimination because she had never requested the service which she claimed was denied due to discrimination. 10 In the result, his Honour accepted the evidence of the appellant. Of some significance was that the appellant's evidence was not only that she told Ms Hazleton that she wanted to be treated at home (contrary to the evidence of Ms Hazleton) but also that Ms Hazleton indicated to the appellant that she would not be able to be treated at home and the reason given was that "we cannot offer you home visits because of your past history of drug abuse". These facts appear to be part of the appellant's version of events accepted by his Honour. The hospital did not take issue with this finding in this appeal. 11 However, the issue of fact central to this appeal was whether the home visits program was closed at the time the appellant sought to be included in it. It is convenient to set out in full his Honour's consideration of this issue (at [18]-[26]): Ms Watts gave evidence in the matter. She said that she was familiar with the applicant. The applicant had been admitted to hospital on a number of occasions in the past and had a history of aggressive behaviour. The hospital's records concerning past admissions corroborate this. She says that she assessed the applicant as being unsuitable for the Calvary at Home program involving home visits for three reasons. These were: a) The applicant had a history of intravenous drug use. It is the policy of the hospital to refuse home visits in such circumstances because of the potential risk to visiting nurses. b) The applicant was morphine dependent. She believed this also posed a risk to any nurse visiting her. c) The applicant had a history of aggression and that this posed a risk to any nurse visiting her. Ms Watts confirmed that all this was academic in any event because, as she had indicated to Ms Hazleton, the home visits program was closed due to staff shortages. Discussion The hospital accepted that the applicant was a person suffering from a disability. This was both in relation to her past intravenous drug use and also her morphine dependency. Counsel for the hospital submitted that there was no discrimination in this case because the applicant was not going to be accepted into the program whether she had a disability or not. This was because, as I indicated, the home visits program was not accepting new entrants. He cited the example of two blind children seeking to gain admission to an under six years of age football team. In the example one of the children was under six and the other was aged ten. It was submitted the ten-year‑old could not bring himself within the terms of the Act because he was ineligible for the selection on the grounds of age irrespective of his disability. Counsel for the applicant submitted that the fact that there were no vacancies in the program did not defeat her claim because of section 10. He submitted that what was involved was a refusal to provide a service for two or more reasons one of which was his client's disability. I think there is force in the submission of counsel for the hospital. It seems to me that there must be a service available to be offered before that service can, in any meaningful sense, be said to have been refused. In my opinion, the applicant's case is not saved by section 10. In my view, it is meaningless to speak of the hospital refusing to provide its services for two or more reasons. It did not have a service that it could offer the applicant and therefore did not have a service which it could refuse to provide to her. Telling the applicant that it could not provide home visits because of her disability was an unfortunate, gratuitous and hurtful statement. But in effect what it was saying to the applicant was that if it had had a service available it would have refused to provide it to her. I will modify the example given by counsel for the hospital to provide a more apposite analogy. In this example I will assume the aggrieved child was under six years of age and blind. In this example I will postulate the spokesman for the club telling the child that (a) there were insufficient children under six interested in playing for the club and so the club was not fielding an under six team that season and (b) that in any event, even if it had been fielding a team, it would not have allowed the child to participate because of his disability. In this example the club would not, in my opinion, be liable in an action for unlawful discrimination because it had no service to refuse. It would not, in my opinion, affect the legal situation had it not informed the child that it was not fielding an under six team but simply gave his blindness as the reason for its decision. That is in essence what happened in the present case. The hospital did not inform the applicant that it had no service to provide but told her that it was refusing the service because of her disability. In my opinion that omission does not affect the legal situation. I therefore find that section 24 of the Act does not apply in this case. [Emphasis added] 12 His Honour went on to consider whether there had been discrimination for the purposes of s 5 which was relied on by the hospital as an additional basis for dismissing the application. His Honour found that the appellant had not received less favourable treatment because the hospital would have treated any person, disabled or not, who sought the home visits program at the time, exactly the same way. His Honour did not consider the defence of unjustifiable hardship, noting that it was unnecessary to do so.

The appeal 13 On 25 July 2006, the appellant filed an amended notice of appeal in this Court. In substance, three issues were raised, namely whether his Honour erred in concluding that s 24 did not apply, whether his Honour erred in concluding that s 5 did not apply, and whether his Honour erred in concluding that the hospital's omission to tell the appellant that it had no service to provide her did not affect "the legal situation". 14 The first and second issues both centred on his Honour's finding that the service was unavailable. In relation to the first issue, the appellant submitted that the Federal Magistrate erred in three respects. First, the conclusion that the home visits program was unavailable was wrong and contrary to the weight of evidence. Secondly, even if it was unavailable, it did not follow that there was no refusal to supply that service, and thirdly, even if there was no refusal to supply the service, it did not follow that s 24 did not apply. 15 The hospital filed a notice of contention. It contended that his Honour's judgment should be affirmed on two bases additional to the primary reason relied on by his Honour,namely that s 24 did not apply. These were, first, that the appellant was not treated less favourably for the purpose of s 5 of the DD Act, and, secondly, that the defence of unjustifiable hardship could be made out.

Submissions on the conclusion that s 24 did not apply 16 It is apparent that the primary issue in this appeal is whether his Honour erred in his construction of s 24 or its application to the facts. The appellant challenged both the legal and factual bases for his Honour's conclusion that s 24 did not apply. 17 At the hearing, the appellant's position on the factual findings made by his Honour was clarified. Counsel identified the following affidavit evidence of Ms Watts as being essentially the only evidence that the service was unavailable: I reminded Gillian Hazleton that admissions to Calvary At Home were closed because we could not cover the evening or morning shifts because the RN for the following two shifts was sick and there was no one to cover. By the time Gilliam Hazleton came to my office I had already spent the morning arranging alternative treatment options for patients currently on the program for the evening and morning shifts in question. 18 This account of their conversation was corroborated in the proceedings below by Ms Hazleton. Counsel for the appellant did not cavil with the fact that staff may not have been available for the next two shifts. However, counsel submitted there was no evidence of any general closure or unavailability. Counsel submitted that the evidence could not found a conclusion that the hospital did not have a service to offer the appellant and was not accepting new entrants. In particular, it was submitted that the evidence did not demonstrate that the service was not available to be provided to the appellant when she would have required it. Counsel pointed to the evidence of medical notes made by the medical registrar that the appellant was prescribed daily intravenous antibiotics for three days, which was the treatment she was seeking to receive in her home. It was submitted that having already been given intravenous antibiotics at the hospital on 1 October 2006, the next treatment could have taken place the following afternoon, and there was no evidence to suggest that the service was unavailable at that time. 19 In relation to the construction of s 24, counsel for the appellant did not accept that it was necessary for a service to be available in order for s 24 to apply. It was submitted that the focus of discrimination legislation such as the DD Act was on acts which discriminated or improperly penalised complainants, but that the act of discrimination under s 24(1)(a) did not require a service to be available. The availability of the service, at least where it was established that the service generally exists and the would-be service provider holds itself out as providing that service, was an issue relevant to the reasons for the act, to which s 10 applied. It was submitted that if the ability to refuse to provide a service depended upon the availability of that service at a particular time then there would be no protection in relation to the sort of conduct proscribed, whether or not the service was available. 20 Counsel for the hospital defended the Federal Magistrate's finding that the service was not available. The essential question in the appeal was said to be whether the hospital discriminated against the appellant contrary to s 5 of the DD Act, and the operation of that section in light of the High Court's decision in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92. The hospital's submissions were largely focused on this issue. Counsel submitted that his Honour's conclusion on s 5, which was that because the service was not available, the appellant was treated in exactly the same way anyone else would have been treated, must be correct. Although the appellant had been assessed as unsuitable for various reasons by Ms Watts, and would in any event have been refused the service even if it had been available, this had been immaterial for the purpose of s 5 because it had not resulted in less favourable treatment since the service was not available to be provided. 21 Counsel for the hospital also submitted that it had never been put to any of the hospital's witnesses that the appellant's treatment could have been delayed until the afternoon of 2 October 2002 when staff might be available. The appellant in the Court below had not disputed the evidence that the service was closed, and the issue before his Honour was understood as being the relevance to the operation of s 10 of the unavailability of staff. His Honour therefore could not be criticised for not having considered the issue about delayed treatment because it was never raised. Counsel further submitted that the suggestion of delaying treatment was contradicted by the evidence in the Court below which showed that within the first 24 hours, treatment for pneumonia was critical and that it was not suitable for treatment at home for that period. 22 In terms of the relevance of the availability of a service under the DD Act, counsel for the hospital submitted that the issue was dealt with by s 5. His Honour had been correct to simply conclude that because the service was not available, there was no need to construct a hypothetical comparator to determine whether the appellant was treated less favourably. Even so, his Honour could equally have looked at the other reasons why the appellant was treated the way she was, unrelated to the fact that the hospital was closed, and reach the same conclusion. Those other factors included the occupational health and safety risks to nurses and the appellant's poor intravenous access.

Consideration 23 It his tolerably clear from [19], [21] and [23] of the Federal Magistrate's reasons, that his Honour found, by accepting the evidence of Ms Watts, that the home visits program was closed due to staff shortages at the time the appellant sought to participate in it and for this reason, amongst others, the appellant was not offered the program. Counsel for the appellant challenged this finding on the basis just discussed. 24 It is conceivable, on the evidence, that a nurse may have been available to visit and treat the appellant at her home on the afternoon following the appellant's initial visit to the hospital. The basis on which such a finding might be made is the amalgam of facts now advanced by the appellant's counsel in this appeal. However, the difficulty with this proposition is that Ms Watts was not cross examined to establish whether there would have been a nurse available on the afternoon following the appellant's initial visit to the hospital. This, in my opinion, is significant. The finding of the Federal Magistrate appeared to be that the home visits program was closed. That may have meant one of two things. It may have been a finding that on the day the appellant first attended the hospital, no new patients were being accepted for the home visits program because of staff shortages irrespective of whether a member of staff might have been, in fact, available on following days to provide the service. While it is now a matter for speculation, that position might have been adopted by the hospital because of the uncertainty about the availability of staff. It may also have been a finding that, on the balance of probabilities, a nurse would not have been available on the afternoon following the appellant's initial visit to the hospital. It is unlikely that the Federal Magistrate's finding went that far. It is more likely that the finding of the Federal Magistrate was as I first described it. 25 The significance of the failure of the appellant's counsel to explore these factual issues at the trial is that evidence was not adduced below to support the hypothesis now advanced on appeal. The evidence was that the program was closed, at least as to home visits. Counsel for the appellant at the trial did not seek to establish that the "closure" was qualified or limited. Counsel could have sought to establish, but did not, that the staff shortages impacted only on the evening of the day the appellant initially visited the hospital and the morning shift the following day. Nor did counsel seek to establish that staff were likely to have been available to attend the appellant's home the following afternoon. Because these issues were not explored, I do not think it is possible to say that his Honour erred in making the findings he did. 26 In many cases where it is alleged that a service was not provided and the refusal to provide it was for proscribed grounds, it may be unnecessary for the applicant to do any more than establish the availability of the service generally to prove that the service would have been available to the applicant. However, in the present case, there was evidence which pointed to the service not being made available to anyone at the time the appellant sought the provision of the service. In those circumstances it was necessary, in my opinion, for the appellant to lay the evidentiary foundation for a finding that the service could have been provided to the appellant notwithstanding that it might not have been able to be provided to others at the time she requested it. I am not satisfied that the Federal Magistrate erred in finding that the home visit program was closed due to staff shortages. 27 Having regard to the finding just referred to, the Federal Magistrate did not err in dismissing the appellant's application. However, for my part, a surer foundation for dismissing the application is found in s 5 and not s 24. The DD Act is beneficial legislation. As Dawson and Gaudron JJ observed in IW v The City of Perth and Others (1997) 191 CLR 1 at 22: In construing legislation designed to protect basic human rights and dignity, the courts "have a special responsibility to take account of and give effect to [its] purpose". For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services, including s 66K(1), should be construed as widely as their terms permit. 28 A beneficial construction of s 24(1)(a), particularly the word "refusing", is therefore to be preferred. There do not appear to be any authorities considering the meaning of that paragraph in the context of an intermittent inability to provide goods or services. Although s 24(1) requires that the putative discriminator be a person who provides goods or services, this may simply be directed at whether the person holds him or herself out as providing such goods or services, in the ordinary course. The word "refusing" may reflect a requirement that a request for the provision of the goods or services has been made apparent by the complainant, for example. This was accepted as being a precondition to the ability to refuse a service in Kowalski v Domestic Violence Crisis Service [2005] FCA 12. Similarly, in the present case, the Federal Magistrate accepted the need for some request to have been made by the appellant for treatment at home. In my opinion, s 24(1)(a) does not cease to apply where a putative discriminator is for some reason temporarily unable to provide the goods or services. 29 Section 10 provides that discrimination can occur even where a number of factors operate to control or determine the conduct of the discriminator. As Kirby J noted in IW v The City of Perth and Others at 63: The object of the Act is to exclude the unlawful and discriminatory reasons from the relevant conduct. This is because such reasons can infect that conduct with prejudice and irrelevant and irrational considerations which the Act is designed to prevent. Because persons, faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons - and because affirmative proof of an unlawful reason is often difficult - the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the Act was "by reason" of or "on the ground" of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real "reason" or "ground". It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the Act. 30 In the present case, the Federal Magistrate accepted the appellant's account of her conversation with Ms Hazleton. This appeared to involve an acceptance that Ms Hazleton said to the appellant that the hospital could not offer her home visits because of her past history of drug abuse. I should add that Ms Hazelton had gone on to explain to the appellant that nurses might be at risk when visiting such people, on the version of events which his Honour accepted. If Ms Hazleton had said this about the reason why the appellant was not being offered her home visits, then it may well be that the identification of the appellant's prior drug use as a reason for not offering her treatment at home was, to use the language of Kirby J, an "unlawful consideration". That characterisation is, of course, conditional because of the issues raised by the hospital under s 24(2), which were not dealt with by the Federal Magistrate and no relevant findings of fact were made. 31 The Federal Magistrate's finding that the home visits program was closed seems to lead, inevitably, to the conclusion that the appellant was treated no differently than a person without the disability would have been treated. Neither would have been provided with the service. It is therefore unnecessary to consider the construction of a comparator for the purpose of s 5. The Federal Magistrate was correct in reaching the conclusion that the hospital did not contravene s 5. 32 The appeal should be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Counsel for the Appellant: Mr R Thomas and Mr F Thomson

Solicitor for the Appellant: Welfare Rights and Legal Centre Limited

Solicitor for the Respondent: Australian Capital Territory Government Solicitor

Date of Hearing: 22 August 2006 Last date of submissions: 28 August 2006