Bruce Lindsay Maguire v. Sydney Organising Committee for the Olympic Games (Respondent) H 99/115 (2000)
Disability Rights
Games (Respondent)
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
JUDGE: HON
WILLIAM CARTER QC (Inquiry Commissioner)
No. H 99/115
Number of pages - 5
DATE OF HEARING: 6 November 2000
DATE
OF EX TEMPORE DECISION: 6 November 2000
DATE OF WRITTEN REASONS: 18 November 2000
PLACE: SYDNEY
#DATE 18:11:2000
Appearances
Ms Pritchard of counsel, instructed by the Public Interest Advocacy Centre, for
the complainant
Mr Moses of counsel, instructed by Barker Gosling, for the respondent
Decision
See final paragraph (Conclusion)
WILLIAM CARTER QC (Inquiry Commissioner)
CONCERNING
RELIEF
1.
Introduction
On 24 August 2000 the Human Rights and Equal Opportunity Commission ("the
Commission") finally determined matters of complaint which the complainant had
made to the Commission in a written document dated 7 June 1999. The final
disposition of the complaint referred to the alleged failure by the respondent
to make its web site accessible to the blind complainant. The Commission made
its determination that the complainant on that account had been unlawfully
discriminated against in breach of the Disability Discrimination Act 1992 (Cth) ("the DDA").
The facts and circumstances relating to the making of the original complaint on
7 June 1999 are referred to in the previous determination of the
Commission. The details of the complaint concerning inaccessibility of the web
site were particularised in the way pointed out in that decision, and the final
determination of the Commission involved the making of a declaration that the
respondent do all that was necessary to render its web site accessible to the
complainant by 15 September 2000 by the three means referred to in that
part of the declaration. That part of the declaration refers to the specific
particulars alleged by the complainant to have rendered its site
inaccessible.
Since, as I have found, that declaration was only partially complied with, it
has become necessary to entertain an application on behalf of the complainant
to determine compensation payable in accordance with the provisions of the DDA.
There are, on this occasion, really two issues; the first being to determine
whether the respondent complied with the declarations and, if so, to what
extent, and that is of course a necessary preliminary to considering the issue
of compensation. The second issue, of course, is to assess, if needs be, the
quantum of the compensation.
2. Findings on compliance with the determination
of the Commission
The respondent's solicitors, by letter dated 30 August 2000 to the
complainant's solicitors, subsequent to the making of the Commission's
determination, responded with its instructions, and it is necessary to refer to
the relevant parts of that letter. Paragraph 1 of the respondent's letter
refers to the requirement to include ALT text on all images and image map links
on its web site. Paragraph 1 of the respondent's letter raises two matters.
Firstly, it indicates the respondent's intention to include ALT text on all
images and image map links and, secondly, it inquires of the complainant as to
the identity of any particular images or image maps which are missing and which
the complainant wished to take advantage of.
Paragraph 2 of the letter is the respondent's response to the second part of
the Commission's declaration, as is the third paragraph of the letter referable
to the third part of the Commission's declaration. In respect to the third
matter it is clear that there has been no compliance with paragraph 3 of
the Commission's declaration, and Mr Moses on behalf of the respondent
submitted that on the material it was open to the Commission to so find. I am
satisfied that in that respect the respondent has not complied with the
declaration.
Returning to the first matter, that is the matter referable to the matter of
ALT text, the statement of Ms Treviranus is to the effect that much of the
missing ALT text has been supplied, although fairly important ALT text for
images is either both missing or inaccurate. I am satisfied that in respect of
the first matter there has been partial compliance with the Commission's
declaration, in that some additional ALT text has been included. On the other
hand, I accept Ms Treviranus's statement and evidence that impediments
remain and, to use her phraseology, the complainant would have needed the
capacity to perform "obscure tricks" to have satisfactory access. She stated
that it remained "virtually impossible" for the complainant to have obtained
the desired level of access.
In respect of the missing ALT text she says that, given the level of
inaccessibility, it would not have been reasonably possible for the complainant
to get to the stage of identifying the missing ALT text which would affect the
complainant's capacity to properly access the site. The relevance of this lies
in the second part of paragraph 1 of the letter dated 30 August 2000,
to which reference has been made, and which refers to the respondent's request
for the complainant to identify the "particular images or image maps which are
missing ALT text". In short, the state of the site for him was, in
Ms Treviranus' opinion, such that it would have been practically
impossible for him to get to the stage of effectively identifying the missing
ALT text.
In respect of the second part of the Commission's declaration and to the second
paragraph of the letter dated 30 August 2000, it seems to me that having
regard to my findings in respect of this issue in the main determination given
on 24 August 2000, that I should not deal with this matter further on that
account. Again, taking into account the evidence of Ms Treviranus on the
point, I am satisfied that the requirement of the second part of the
declaration remains uncomplied with.
I should add at this point that Ms Treviranus noted in her statement that
certain positive changes to the site had been made, but that for the most part
I am satisfied that the requirements of the declaration have been partially
complied with only. In this respect I accept generally the evidence of the
complainant, that on that account he continued to be significantly restricted
in his ability to access the site. He attempted access on the three occasions
mentioned in the statement, but I also accept his statement that until
24 September 2000 he did not visit the site because, as he said, he saw
"little point" because of what he understood to be the respondent's published
response to the orders, particularly that part of the response which referred
to the table of results, the subject matter of the third part of the
Commission's declaration.
3. Findings on compensation
In the circumstances, therefore, it is necessary for the Commission to consider
the issue of compensation in terms of section 103(1)(b)(iv) of the DDA.
The submissions for the complainant are that, in considering compensation, the
compensation should be considered under three headings: firstly, that there
should be a determination of the pecuniary sum payable in respect of injuries
for the complainant's hurt and humiliation on account of his being
discriminated against; secondly, that an amount for his legal expenses should
be included in the assessment; and thirdly, that there should be a provision
for aggravated damages.
For the respondent it is submitted that in effect, if an assessment were to be
made, that that assessment should be based, for all practical purposes, wholly
on the allegation that the complainant had suffered, as alleged, feelings of
hurt and humiliation because of his having been discriminated against. In
short, so the respondent submits, the case is one for modest compensation only.
Dealing first with the question whether the assessment should include an amount
to compensate the plaintiff for legal expenses, it seems to me that the
Commission should resolve that point in accordance with the decision of the
Federal Court of Australia in Australian Medical Council v Wilson and
Ors (1996) 137 ALR 653 at 672. In the judgment of Heerey J, the question
is considered by reference to like provisions in the Racial Discrimination
Act 1975 (Cth) ("the RDA"). His Honour decided in the circumstances of
that case that the proper construction of the relevant power to make the
declaration in that Act did not include the power to compensate, as part of the
making of that assessment, the complainant in respect of any disbursements on
account of legal costs.
Having regard to the analogous provision in the DDA it seems to me that there
is no sound basis for distinguishing his Honour's decision in relation to the
RDA, and accordingly the Commission, in accordance with that decision, is
constrained from including in the assessment, or including in any assessment,
an amount under that heading.
The DDA therefore requires an assessment of the loss or damage suffered by the
complainant, and there is a requirement for the quantification of that loss.
The complainant, as the previous determinations make clear, is blind and has
been since birth. It is unnecessary for me to repeat those matters personal to
him which are recorded in the two earlier decisions of the Commission
concerning his complaint. Obviously he is a person who has achieved at a
remarkable level in spite of his disability. He has persistently insisted that
his disability should not be the cause of his having to accept an inferior
outcome by reason of his disability. His competence at reading braille and his
application of that skill to computer technology is obviously of a high order.
Accordingly, his expectations of being able to access information from the
respondent's web site were, not surprisingly, high; certainly as high as that
which a sighted person with his skills could expect. I am satisfied that the
respondent from the outset was dismissive of the complainant's concerns, and in
my view this is well evidenced by his original contact with Mr Reading on
7 June 1999. This matter is sufficiently dealt with in the Commission's
earlier decisions.
This response, I am satisfied, was very hurtful for him; the suggestion that he
enlist the aid of a sighted person to assist him was wholly inconsistent with
his own expectations and what he himself, unaided, had been able to achieve,
both at university level and in business, in spite of his disability. To
dismiss him and to continue to be dismissive of him was not only hurtful, he
was also made to feel, I am satisfied, various emotions including those of
anger and rejection by a significant statutory agent within the community of
which he himself was a part.
In my view this element of dismissiveness in the respondent's original response
was not relieved as the inquiry process under the DDA proceeded within the
Commission. In respect of this part of the complaint it apparently persisted
and his original pain was somewhat aggravated by that fact. It is unnecessary
to repeat the sequence of events which impacted on the making of a final
determination between 25 February 2000 and now. I refer to the
determination made on 24 August 2000 in relation to that matter.
It is hardly necessary to add that the Sydney Olympics engaged the attention of
those who live here and elsewhere in this country and, indeed, overseas. The
complainant's expectation of being able to participate as a sighted person
might was unmistakable, and this is apparent not only because of his pursuance
of this complaint, but from an assessment made of him in the course of his
having given evidence to the Commission on three occasions now.
I am comfortably satisfied that his limited access to the web site caused him
considerable feelings of hurt, humiliation and rejection. One cannot overstate
the consequential effect upon him of his having to cope with the persistent
need to counter what he saw as a negative, unhelpful and dismissive attitude on
the part of an organisation charged with the presentation of the most notable
sporting event in the history of this country. This, in my view, was
aggravated by his final inability to obtain the desired access to the web site
in spite of his having established to the satisfaction of the Commission the
fact that he had been unlawfully discriminated against.
The public statements of the respondent subsequent to 24 August 2000 were
for him the final indignity. He had been discriminated against by the
respondent, yet it was not prepared to restore the position, and in spite of
positive efforts to improve the site, he continued to feel the impact which the
respondent's earlier dismissive attitude had had upon him. This was, no doubt,
aggravated by the fact that the published statement of the respondent in
justification of its noncompliance included material which had been
specifically rejected by the Commission in its determination of 24 August
2000.
In the Commission's view his hurt and earlier rejection has persisted, and in
spite of an apparently successful outcome he had been left with feelings of
ultimate failure. It is obviously difficult for those of us not similarly
disabled to share his feelings and emotions. As best one can assess, including
from his presentation to the Commission, his hurtful rejection by the
respondent was very considerable in his case. It is, of course, extremely
difficult to determine an appropriate monetary sum in a case such as this. It
is clearly a matter about which individual minds might vary. It is not, in my
view, a matter of punishing an apparently financially resourceful respondent.
It is a matter of declaring a reasonable amount which will be seen to be
appropriate given all of the circumstances of this particular case.
In my view the appropriate sum to declare in this matter by way of compensation
is the sum of $20,000.
4. Conclusion
Accordingly, in terms of section 103(1)(b)(iv) of the DDA, the Commission
makes the declaration that the respondent should pay to the complainant by way
of compensation the sum of $20,000.
Dated this day of November 2000
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William Carter QC
Inquiry Commissioner
