Lauro v Sorby-Adams [1992] HREOCA 23 (17 December 1992)

Human Rights and Equal Opportunity Commission

Racial Discrimination Act 1975

No. H92/15

No. H92/16

Between:

Natale Lauro

Complainant

and

Dr Graeme Sorby-Adams

Respondent

Reasons for Decision

of the President, Sir Ronald Wilson

Hearing: Adelaide, South Australia

Date: 14 December, 1992

Appearances: Mr Natale Lauro, in person

Mr Richard Halliday of Counsel, for the Respondent

Introduction

On 31 March 1992 the Race Discrimination Commissioner referred to the Commission for Inquiry a complaint involving the complainant, Mr Lauro, and the respondent, Dr Sorby-Adams. The complaint was originally made to the Commissioner for Equal Opportunity for South Australia acting as agent for the Commission. In the course of the investigation of that complaint the Commissioner declined to investigate the matter further as she perceived that it was lacking in substance.

In accordance with the provisions of section 24(4) of the Racial Discrimination Act 1975 ("the Act"), the complainant required the Commissioner to refer the complaint to the Human Rights and Equal Opportunity Commission.

A second complaint was made by Mr Lauro following the submission by the respondent to the Government Insurance Office of New South Wales ("the GIO") of a report dated 14 May 1991 containing the Doctor's account of the incident, forming the basis of the first complaint, which occurred on 31 October 1990. The second complaint was automatically referred by the Equal Opportunity Commissioner pursuant to section 24E(1) of the Act.

History

(1) On 15 October 1979, the complainant, who is of Italian origin, suffered a back injury at work.

(2) An award of compensation was made in the Compensation Court of New South Wales on 28 November 1980 against the Department of Main Roads which was the complainant's employer at the time of the injury.

(3) In March 1981 the complainant returned with his family to Italy where he remained until August 1990. During that time he continued to receive workers compensation payments.

(4) While in Italy he was diagnosed as suffering from heart trouble and had a number of consultations with specialists.

(5) On 18 August 1990 he returned to Sydney from Italy. Shortly after arriving he received a letter from the GIO, the insurer for the employer, requesting that he undergo a medical examination.

(6) As the complainant was about to move to Adelaide he asked the GIO if he could attend a doctor there. As a result, arrangements were made by the GIO for the complainant to attend an orthopaedic specialist in Adelaide.

(7) Dr Sorby-Adams, the respondent, was chosen from a panel of interstate doctors. A letter was sent to the complainant dated 19 September 1990 advising him that an appointment had been made with the respondent for 27 September 1990.

(8) On 21 September 1990 a letter was sent by the GIO to the respondent. The letter enclosed copies of relevant documentation from the complainant's file held by the GIO. That letter commenced by thanking the respondent for agreeing to see the complainant. It went on to state:

The purpose of this medical examination is to:-

1. ascertain whether Mr Lauro is still suffering a condition which is directly attributable to the 15th October 1979 accident;

2. determine whether Mr Lauro would be physically capable of resuming with our insured as a Painter, if not, what types of employment would he be suitable for and whether any restrictions would apply;

3. determine whether he has any other condition which would reduce his life span.

I would advise that Mr Lauro telephoned me on 20th September, 1990 and said that he had blood pressure problems and that he will have to undergo a heart operation.

(9) Prior to examining the complainant on 27 September, 1990 the respondent secured the approval of the GIO to refer the complainant to a cardiologist for an opinion.

(10) A report setting out the respondent's findings dated 1 October 1990 was subsequently forwarded to the GIO. The report provided the doctor's opinion with respect to the complainant's work history. It also indicated that the complainant had been referred to Dr Wilson to ascertain whether the cardiac condition from which the complainant had indicated he suffered could reduce his life span.

(11) On 31 October 1990 the complainant had another consultation with Dr Wilson. At the consultation Dr Wilson informed him that he did not have a heart problem. It was obviously a difficult interview, in the course of which the complainant rejected Dr Wilson's opinion and threatened that he would report him to the Australian Medical Association for refusing to hand over the "ECO report". Mr Lauro said that during the meeting "we were very antagonistic towards each other".

(12) Immediately after this exchange with Dr Wilson, the complainant went to the respondent's surgery. He did not have an appointment to see the Doctor. He complained about Dr Wilson's medical opinion and said he disagreed with it. A verbal dispute took place between the parties. Voices were raised. The complainant's description of the incident following his complaint about Dr Wilson was as follows:

Dr Adams began by saying "you must understand that this is my country and I am the expert and Dr Wilson is the expert and its his country". I replied "why are you telling me this?" and he repeated twice in succession "it's my country" and I said "it's my country too, I pay tax too" and he replied "that's a privilege that anybody who works here has".

Then Dr Adams said "the problem is that you have been told by people elsewhere, if you will listen to people here . . . ." and I said "No I cannot accept the judgement of Dr Wilson". Dr Adams then said "I don't want to listen to you". I responded "thank you very much, I will go away" and got up to go. Dr Adams continued "what you did with Dr Wilson I went to a lot of trouble to look after you because I thought the problem was important". I said "you telephoned GIO in Sydney" and he said "I write to GIO" and I said "this is none of your business, you are supposed to relate to my accident". Dr Adams replied "you don't tell me in my country . . ." and I said "Don't say again it's your country". He replied "it's my country, it's my country and not yours, it's my country and it's my office, and it's not yours goodbye". He was becoming angrier and angrier and his voice changed and he put 2 fists on either side of my face, pushing me trying to scare me or wanting me to fight.

(13) On the same day, 31 October 1990, the respondent prepared a brief letter addressed to the GIO which indicated that he had been visited by the complainant who had wanted the respondent to ask Dr Wilson to change his opinion.

(14) On 14 May 1991, in response to a request from the GIO, the respondent furnished a report to the GIO describing the incident on 31 October 1990.

The Hearing

When the Inquiry opened I intimated that the two complaints would be treated as one since the report of 14 May 1991 was intimately related to the subject matter of the first complaint.

I also referred to an application made on behalf of the respondents that I exercise the power conferred by section 25X of the Act to dismiss summarily any complaint as to which I am satisfied that it is misconceived or lacking in substance. The full section is set out below. I emphasised that, for the purpose of dealing with that submission, I proposed to receive relevant documentation and hear the evidence in chief of the complainant before hearing counsel.

Statutory Framework

The material provisions of the Act include the following:

13. It is unlawful for a person who supplies goods or services to the public or to any section of the public:

(a) to refuse or fail on demand to supply those goods or services to another person; or

(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he would otherwise supply those goods or services;

by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.

18. A reference in this Part to the doing of an act by reason of the race, colour or national or ethnic origin of a person includes a reference to the doing of an act for two or more reasons that include the first-mentioned reason, provided that reason is the dominant reason for the doing of the act.

25X. Where, at any stage of an inquiry, the Commission is satisfied that a complaint is frivolous, vexatious, misconceived, lacking in substance or relates to an act that is not unlawful by reason of a provision of Part II, it may dismiss the complaint.

Evaluation

I understand an application based on section 25X of the Act to be in the nature of a "no case to answer" submission. For this purpose one must take the complainant's case at its highest. I observe that in a number of respects the respondent contests the accuracy of the complainant's version of events.

However, I am not concerned at this stage to determine where the truth lies. If I reject Mr Halliday's submissions then it will be necessary to hear all the relevant evidence including the cross-examination of the complainant.

Mr Halliday based his submission that the complaint should be dismissed on the following points:

a) the altercation that occurred in the respondent's surgery on 31 October 1990 did not have any racist overtones at all. The repeated statement "This is my country" was simply a reflection of the conflict in medical opinion between Italian and Australian specialists and the respondent's desire to emphasise that Australian opinion was paramount in this country.

b) In any event, even if the respondent's statements reflected a denigratory bias against Italian specialists and therefore against the complainant himself, it did not lead to any discriminatory conduct in the supply of medical services or any other services by the respondent.

c) Further and in any event, the complainant was not the respondent's patient and consequently there was no supply of services to him in the sense contemplated by section 13 of the Act.

I comment on each of these submissions as follows:

a) I note the submission. On the other hand, the complainant insists that he interpreted the repeated assertions as a deliberate insult. The words said to him, "I am not welcome; I am not invited; I have no rights". At this stage of the hearing I am not prepared to find that the words used by the respondent were not capable of bearing the racist overtones attributed to them by the complainant.

b) The respondent is on stronger ground in making this submission. Indeed, the complainant himself now agrees that there was no discrimination evident in the manner in which the medical services were provided to him by the respondent on 27 September 1990. Notwithstanding the negative conclusion with respect to the complainant's medical condition to which I have referred, the respondent's demeanour was impeccable, being described by the complainant as "very gentle", "very nice". The problem developed on 31 October 1990, an occasion when, as both parties agree, no medical services were provided. The parties are at odds in explaining the reason for the second meeting: the complainant insists that he returned to the respondent's rooms, albeit without appointment, on 31 October in response to an invitation extended to him by the respondent on 27 September. He was to return to see the respondent, without worrying about an appointment, as soon as he had received the result of Mr Wilson's examination. On the other hand, the respondent's statements make it plain that he did not expect to see the complainant again after the first examination. It is unnecessary for me to resolve this conflict because the complainant now makes no complaint with respect to the quality of the medical services supplied to him by the respondent. It is therefore immaterial whether or not the visit on 31 October 1990 formed part of any medical service.

c) I think the respondent's third point is well taken. I have already referred to the letter from the GIO dated 21 September 1990 which makes it quite plain that it was the Workers' Compensation insurer which engaged the respondent to conduct a medical examination of the complainant. At no stage was the complainant a patient of the respondent.

It is now clear that Mr Lauro's complaint focusses on the words used by the respondent during the altercation that took place in the latter's surgery on 31 October 1990. It is common ground that those words, whatever their meaning and the spirit in which they were uttered, were not related to the quality of any medical services that may have been thought to have been provided.

If the meaning attributed to the words by the complainant was justified, they may have constituted a form of racist abuse. The Act does not render such conduct of itself unlawful and it therefore provides no remedy for the complainant. As I have explained, it is neither necessary nor appropriate for me to express a final view as to whether the words were uttered and, if so, with what intent.

My conclusion must be that this present complaint is misconceived within the meaning of that term in section 25X of the Act.

It is therefore dismissed.

Dated this day of December, 1992

. . . . . . . . . . . .

Ronald Wilson

President