Grovenor v Eldridge t/a Young Furniture Trading [1999] HREOCA 3 (3 February 1999)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Disability Discrimination Act 1992 (Cth)

No. H 98/50

Between:

Laurie Grovenor

Complainant

And

John Eldridge trading as Young Furniture Traders

Respondent

REASONS FOR DECISION OF INQUIRY COMMISSIONER

ALICE TAY, AM

Hearing Venue: Young, NSW

Hearing Date: 18 December 1998

Appearances: The complainant was represented by Aileen McFadzean of the National Federation of Blind Citizens of Australia

The respondent was not represented and did not appear

Date of Oral Decision: 18 December 1998

Date of Written Reasons: 3 February 1999

1. INTRODUCTION

On 11 February 1998 the National Federation of Blind Citizens of Australia lodged a written complaint on behalf of the complainant, Laurie Grovenor, with the Acting Disability Discrimination Commissioner ("the Commissioner"). The complainant, who is visually impaired, alleged that she had suffered unlawful discrimination by the respondent, John Eldridge, when she sought to gain access with her guide dog to the respondent's second-hand furniture store in Young, NSW.

On 27 May 1998 the Commissioner, being of the view that the complaint was not amenable to conciliation, referred the complaint under section 76(1) of the Disability Discrimination Act 1992 (Cth) (Athe Act@) to the Human Rights and Equal Opportunity Commission ("the Commission") for public inquiry.

On 18 December 1998, I conducted an inquiry into the matter in Young. The complainant attended and was granted leave by me to be legally represented by Aileen McFadzean of the National Federation of Blind Citizens of Australia. The respondent, although advised by the Commission of the details of the time and venue of the hearing, did not attend. As I was satisfied that the respondent had been notified of the hearing, I proceeded with the inquiry in his absence. At the commencement of the inquiry I took the Referral Report of the Commissioner into evidence. At the conclusion of the hearing I gave my decision upholding the complaint. I now set out my written reasons for that decision.

2. THE LAW

This matter involves an allegation of disability discrimination under sections 5, 6, 9, 23 and 24 of the Act.

Section 5(1) states:

5(1). For the purposes of this Act, a person (Adiscriminator@) discriminates against another person (Aaggrieved 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 6 states:

6. For the purposes of this Act, a person (Adiscriminator@) discriminates against another person (Aaggrieved person@) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

Section 9 relevantly states:

9(1). For the purposes of this Act, a person (Adiscriminator@) discriminates against a person with:

(a) a visual disability;

...

(Aaggrieved person@) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses, or is accompanied by:

(d) a guide dog;

...

whether or not it is the discriminator=s practice to treat less favourably any person who possesses, or is accompanied by, a dog or any other animal.

Section 23 relevantly states:

23(1). It is unlawful for a person to discriminate against another person on the ground of the other person=s disability ...

(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(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;

...

(f) by requiring the other person to leave such premises or cease to use such facilities.

23(2). This section does not render it unlawful to discriminate against a person on the ground of the person=s disability in relation to the provision of access to premises if:

(a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and

(b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.

Section 24 states:

24(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 ...

(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

24(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.

3. THE EVIDENCE

3.1 The evidence of the complainant

The complainant, Ms Laurie Grovenor, testified that she is a person with a visual impairment. She said that she had used guide dogs since 1980 and that her current guide dog was the third such dog that she had used.

Ms Grovenor testified that on Friday 2 January 1998 she and two friends, Joanna Potton and Brian Potton, decided to visit the respondent's store in the course of visiting furniture stores to search for a lamp. She said that on entering the store with her guide dog she was told by the respondent to "take the dog out". She said that she told Mr Eldridge that the dog was a guide dog but that he responded, "I don't care, you can see". She said that he may have believed she could see because she looked at him as he spoke. She testified that although she had low vision she had had a job in public relations and had been trained to look at people when they spoke to her. She stated that she then said to Mr Eldridge that she would "get the police to come and tell you that you can't kick out a guide dog". She said that he responded in a "skiting way" saying that he had called the police to evict some people and that he could have who he wanted in his store. She said that she spoke to the police on Brian Potton's mobile telephone and that the police advised her that they couldn't help as it was "a discrimination matter".

The complainant testified that Joanna Potton told her that Mr Eldridge then picked up a mattress and appeared as though he was going to push her (the complainant) out of the store with the mattress. Ms Grovenor said that when someone then came into the store Mr Eldridge put the mattress on its side and said "excuse me, I have to put it somewhere".

Ms Grovenor said that, after speaking to the police on the phone, Brian and Joanna Potton and herself then went just outside the entrance to the store and started to write down the details. She said Mr Eldridge then said to them, "get off my property". She said that he then said to her, "I wouldn't allow dogs into my house" and that she replied, "Neither would I". She said that Mr Eldridge went quiet for a while but then started to scream at her, "Go ahead, ruin me. Run me out of town". She said that these were his final words.

In the written complaint, which is included in the Referral Report, Ms Grovenor indicated that she told Mr Eldridge he could be fined for refusing access to his shop and that he had responded "in an aggressive and intimidating tone" that he "did not care whether or not the dog was a guide dog". She also indicated in the written complaint that Mr Eldridge had repeatedly stated to her that she "was not blind anyway" and that she "could see as well as he could".

Ms Grovenor said that she has had experienced some difficulty in gaining access to restaurants but that once she showed her "passport" there was no further problem. She said that on this occasion, however, she had not had a chance to produce her card.

Ms Grovenor testified that after the incident she went back to her home [Galong, NSW] and informed her husband, Brendan Grovenor, that she "was going to Canberra and not coming back". She said that she needed to talk to someone about the incident and that she talked about it unofficially at Lifeline where she worked. She said that after the incident she "got a rash which is undiagnosed to this day". She said that as a result of that incident she "had not set foot in Young" until she returned for this hearing.

3.2 The evidence of Joanna Potton

Joanna Potton testified that the day of the incident was very hot. She said that because of the heat the complainant, Brian Potton and herself had decided to go shopping so as to take advantage of the air conditioning in the car and the cooler temperature in the shops. She said she was hoping to find a "standard lamp" and that a friend of the complainant's had suggested they visit the respondent's shop.

Ms Potton testified that after arriving at the shop by car she and the complainant went into the shaded area at the entrance to the shop where the complainant fitted a harness to her guide dog. She stated that she and the complainant then went into the shop but when they were about a metre and a half into the shop Mr Eldridge said, "Where do you think you are going with this dog?" She said that the complainant replied, "This is a guide dog. It is allowed in". Ms Potton stated that Mr Eldridge then said, "I don't bloody care what sort of dog this is". She said that they told Mr Eldridge it was against the law not to let a guide dog in and that he had responded that he did not care.

Ms Potton testified that Mr Eldridge then grabbed a mattress and put it in front of them but then someone came in and Mr Eldridge pushed past them with the mattress saying, "Excuse me, I am going to take this out."

Ms Potton stated that Mr Eldridge said to Ms Grovenor, "I don't believe you are blind. You look at me when you speak to me. You don't need that dog."

She said that after they had telephoned the police they had gone outside and stood in the shade provided by the indentation in the building at the entrance to the shop. She said Mr Eldridge said to them, "You can leave that dog outside and come in" and that they had responded that they "would take this to the discrimination board because that's what the police had said". She testified that Mr Eldridge then said, "I'm not discriminating. None of you can come in". She said they tried to stand in the shade at the front of the shop to take particulars but Mr Eldridge said to them, "Get off my property". She said they replied, "It's the pavement" and he then said, "I pay rates on that section".

3.3 The evidence of Brian Potton

Brian Potton also testified that the day of the incident was very hot. He said that when they went to go inside the shop the person inside the shop said, "You can't bring that dog in here. Get out."

Mr Potton testified that the complainant "was explaining" to Mr Eldridge that the dog "was a guide dog which could go anywhere" but that Mr Eldridge responded, "It can't".

Mr Potton testified that Mr Eldridge held a mattress up in front of them. He said that the complainant asked him to call the police and that he had done so.

Mr Potton said that Mr Eldridge kept saying that "dogs are full of diseases" and "I am not having that dog in here". Mr Potton said that Ms Grovenor explained to Mr Eldridge that her dog was healthy and that "it had regular check ups with the vet"

Mr Potton said that Mr Eldridge "just kept going" and that it was upsetting and embarrassing. He said he told Mr Eldridge that he was "a very obnoxious person".

3.4 The evidence of Brendan Grovenor

Brendan Grovenor, the husband of the complainant, testified that he saw the complainant shortly after the incident and that she was very upset. He said, "That weekend Laurie went back to work in Canberra where she had worked for almost three years and refused to come home for about eight weeks".

Mr Grovenor said that whilst eventually Ms Grovenor did return home "she has refused to shop in Young ever since then".

3.5 The evidence of Rina Russell

Rina Russell is the daughter of the complainant. Ms Russell gave evidence that she was visited at her house by the complainant and Brian and Joanna Potton not long after the incident and that the complainant was very upset. She said that the complainant had avoided shopping in Young since the incident.

3.6 The evidence of the respondent

Mr Eldridge chose not to attend the hearing and give evidence. Ms McFadzean advised that Mr Eldridge had given the complainant a written apology prior to the hearing. She provided a copy to the Commission.

4. FINDINGS

I accept the evidence of the complainant that she has a visual disability.

I accept the evidence of the complainant and her witnesses, Joanna and Brian Potton, that on about Friday 2 January 1998 the complainant sought to enter the respondent's store, Young Furniture Traders, with her guide dog which was in harness and that the respondent, having been advised by the complainant that her dog was a guide dog, nevertheless refused to allow the complainant to bring her guide dog into his store.

It may have been that the respondent did not believe that the complainant needed the assistance of a guide dog or he did not understand the nature of a guide dog and its role in ensuring the safe passage of its owner. In that regard I note that the evidence indicates the respondent had a general concern about the hygiene of dogs. Perhaps the very hot weather contributed to this unfortunate confrontation. In any event, despite having been advised by the complainant that her dog was a guide dog and that she was entitled to bring it into his shop he refused to allow her to do so.

For the reasons set out below I find that the conduct of the respondent was unlawful by reason of section 23(1) of the Act.

Section 23(1)(a) makes it is unlawful for a person to discriminate against another person on the ground of the other person's disability by refusing them access to premises. Section 23(1)(b) makes it is unlawful for a person to discriminate against another person on the ground of the other person's disability in the terms or conditions on which that person is allowed access to premises.

Section 9 of the Act provides that a person discriminates against a person with a visual disability if the discriminator treats that person less favourably because of the fact that that person possesses or is accompanied by a guide dog whether or not it is the discriminator's practice to treat less favourably any person who possesses or is accompanied by a dog or other animal.

In this case the respondent has treated the complainant less favourably than someone without a visual disability because the respondent, in barring access by the complainant's guide dog to his shop has, effectively, barred access to the complainant.

Accordingly, subject to the possible application of section 23(2) of the Act the action of the respondent was unlawful. Section 23(2) provides that it is not unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if "the premises are so designed or constructed as to be inaccessible to a person with a disability" and, "any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access". There is no evidence before me that the premises are so designed or constructed as to be inaccessible to a person in Ms Grovenor's situation.

Having found the respondent has breached section 23(1) of the Act there is no need for me to consider whether section 24 of the Act (the provision of goods and services) has been contravened.

5. RELIEF

There are a number of factors that may have contributed to this unfortunate incident including the heat, the congestion in the shop, the respondent's concern about the hygiene of dogs and, perhaps, concerns the respondent had about the financial well-being of his business. However, the evidence indicates that the complainant was distressed and upset as a result of the actions of the respondent. She said that as a result of that incident she "had not set foot in Young" until she returned for this hearing. She testified that after the incident she had received informal counselling at Lifeline in Canberra where she works as a counsellor. She stated that after the incident she developed a rash which has been undiagnosed.

Shortly before the hearing the respondent provided a full written apology to the complainant.

Whilst the complainant was clearly affected by the incident the written apology provided to her by the respondent should alleviate to some extent her understandable distress.

Having regard to the circumstances of this case and to previous Commission decisions I believe it is appropriate to declare that the respondent should pay the complainant an amount of damages in the sum of one thousand dollars ($1,000) by way of compensation for injured feelings, distress and embarrassment caused to her by his conduct.

6. CONCLUSION

Pursuant to s.103 of the Act, I declare that the respondent should pay the complainant the sum of one thousand dollars ($1,000) by way of compensation for the injured feelings, distress and embarrassment caused to her by his conduct.

DATED this third day of February 1999.

______________________________

Alice Tay AM

Inquiry Commissioner