Scott and Bernadette Finney on behalf of Scarlett Finney v The Hills Grammar School
No. H98/6
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

GRAEME INNES AM Inquiry Commissioner

Sydney, 17, 18, 19, 27 November 1998; 1, 3 December 1998 (hearing), 13 June 2000 (decision)

#DATE 13:6:2000

Appearances:

The complainants were represented by Nick Poynder of counsel, instructed by Greg Kirk of the Public Interest Advocacy Centre

The respondent was represented by Kate Eastman of counsel, instructed by Jacquie Seemans of Minter Ellison

Order: determination declaring that the School pay the sum of $42,628 to Mr and Mrs Finney, as trustees for their daughter Scarlett Finney, on or before 28 days from the date of publication of this decision.

MEMBER: GRAEME INNES AM Inquiry Commissioner

1.       INTRODUCTION

In a decision dated 20 July 1999 I found that the Hills Grammar School ("the School") had discriminated against Scarlett Finney on the ground of her disability by refusing her enrolment to the kindergarten class at the School in 1997 in breach of the Disability Discrimination Act 1992 (Cth) ("the Act").

At that time I did not address the issue of relief. I noted that the School provided an idyllic setting and a unique educational opportunity, which Mr and Mrs Finney had been keen for both Scarlett and her younger sister to enjoy. I also noted that the School's decision to refuse Scarlett's enrolment, while based on a number of incorrect and stereotypical assumptions, had been well intentioned. I encouraged the parties to discuss settlement of the matter following the receipt of my decision, and provided a period of four weeks for discussion to take place. I took this action mindful of the importance placed by the Act and other similar legislation on conciliation, and because it was my view that the parties were better placed to negotiate a mutually beneficial agreement.

However, during that period the School applied to the Federal Court for review of my decision of 20 July 1999, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). I decided not to hand down a further decision on relief pending the outcome of that application. On 18 May 2000 Justice Tamberlin dismissed the application with costs.

Accordingly, pursuant to s.103 of the Act, it is now appropriate for me to determine the nature of the relief awarded in this matter.

2.       OPTIONS FOR RELIEF

2.1       Legislation

Section 103 of the Act relevantly provides:

"(1) After holding an inquiry, the Commission may:

(a) dismiss the complaint the subject of the inquiry; or

(b) if it finds the complaint substantiated - so find and make a determination which, if appropriate, may include any one or more of the following: ...

(ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; ...

(iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;"

I am satisfied that it is appropriate to consider relief under both subparagraphs (ii) and (iv) above.

2.2       Offering enrolment

I am not prepared to make a declaration that the School should offer Scarlett enrolment. In my view, such enrolment would be the best outcome. It would provide the opportunity for Scarlett, and possibly her sister, to enjoy the setting and educational benefits which the School provides. It would also be a positive way for the School to redress its discriminatory actions, and an ongoing demonstration to children and parents alike that such conduct is unlawful.

I felt that such an outcome may have been achieved through negotiations between the parties, and this was one of the reasons that I left a hiatus between the announcement of my decision on liability and the final determination of the question of relief.

However, I would not be prepared to impose such an outcome. It may not be a result which Mr and Mrs Finney now want, and it would be unfair to direct Scarlett towards a potentially hostile environment. In the similar situation of reinstatement of employees, whilst it is a power that many industrial courts and tribunals have, it is one that is infrequently exercised. The enforcement of such an ongoing relationship, with which one or both parties may be uncomfortable, has a high potential for failure.

I have therefore turned my attention exclusively to the issue of financial compensation.

2.3       Financial compensation

2.3.1       For whose suffering may damages be awarded?

This is an unusual case in that the people who have complained, Mr and Mrs Finney, are not the persons aggrieved. It is Scarlett who has been discriminated against, but it is her parents who have complained. It is, of course, quite appropriate for them to have done so in terms of the Act. However, it raises some interesting issues with regard to the awarding of damages.

Most of the subparagraphs in s.103(1)(b) refer to the complainant exclusively when setting out the various actions which the Human Rights and Equal Opportunity Commission can require the respondent to perform.

However, s.103(1)(b)(iv) relating to damages refers to payment of damages "for any loss or damage suffered because of the conduct of the respondent".

In my view, this allows me to assess damages based on the hurt, humiliation, injury to feelings and any other specific loss which Scarlett may have suffered as a result of the School's discriminatory action. The paragraph is equally clear, though, that such damages must be paid to the complainants.

2.3.2       Assessment of damage

The case of Hall v Sheiban (1989) 20 FCR 217 lays down the general principles to be applied when assessing damages, and I have followed those principles.

I must firstly assess the specific loss of the educational opportunity which the School refused to provide to Scarlett, and then consider general damages for hurt and humiliation.

The difficulty which I face is putting a monetary value on what Scarlett has lost by not being afforded the opportunity to enrol at the School. How can monetary comparisons be made between a private school education (particularly one in the setting of this school) and an education in the State system?

This is the comparison which I must assess, because it was clear from the evidence that due to the religious beliefs of Mr and Mrs Finney, the School was the only private school in their area which would have been acceptable or available to them. Therefore, as a result of the School's refusal, Scarlett is receiving an education in the State school system.

This assessment is made by many members of the Australian community every year; that is, by those parents of children who are sent to non-State schools. Putting aside any arguments about private versus public education, parents who enrol their children at private schools set the extra value of this education as the fees that they are prepared to pay. It was clear from the evidence of Mr Phipps, the Principal of the School, that private schools operate in a competitive market, and that one of the criteria for the establishment of school fees is an assessment of what parents will be prepared to pay. It therefore seems to me that the most appropriate way to value the opportunity which Scarlett has lost in financial terms is to award the fees which are paid for such an opportunity.

The School's schedule of fees for 1997 indicates that the fees for kindergarten in that year were $4,940. The School's schedule of fees for 1998 sets the fees for Year 1, the class in which Scarlett would have been in that year, at $5,144. She would have been in Year 2 in 1999, and the same schedule of fees indicates that the Year 2 fees (for 1998) were $5,144. In 2000, Scarlett would have been in Year 3, fees for which were $5,600; in 2001, Year 4 at $5,600; in 2002, Year 5 at $5,600 and in 2003, Year 6 at $5,600.

I have stopped at this point for the reasons set out in my earlier decision regarding the period of schooling to which my decision applies. The total of these amounts is $37,628. There may be an increase in these amounts over the next few years, but it is impossible to predict what it may be.

Considering the current rate of inflation, and the competitive nature of school fees as described by Mr Phipps, it will probably not be significant. I have therefore not made an allowance for it, but will factor it into my award for general damages.

It is also appropriate to make an award for the hurt and humiliation suffered at the time that Scarlett's enrolment was refused. Mrs Finney, in her evidence, said:

"I was hurt and disillusioned when Scarlett was rejected from Hills Grammar School. I felt that she had not been treated fairly through the application process. We were made to feel that our daughter was an enormous burden on Hills Grammar School and that her disability was greater than we had perceived it to be. We try not to take too many things for granted and have always felt that we were pretty lucky that Scarlett has the abilities that she has. Suddenly we felt that we were not so lucky and we felt that we had to reassess our position. It felt awful to re-evaluate everything and look at Scarlett in a different light. We were concerned that maybe everyone else had not been seeing her in the light we saw her.

"We became very conscious of people staring at Scarlett. I hated going to the shops with her in her chair because I was afraid of people staring at her. We began to feel very differently about things.

"In relation to how Scarlett felt about being rejected from Hills Grammar, she asked me why she could not go to the school in the bush. Children tend to see things very innocently and I did not want to disillusion her completely I had to explain to her why. However I feel that the impact of the school's rejection of her will be felt more by her when she comes of an age to understand the situation in its entirety. It will be a sad day for her then. When Scarlett is old enough, we will explain the case to her and what we did in her defence and she will realise what happened and I think that it will hurt it [sic] her then more than it does now. I fear one day she will put it all together in her mind and she will be very disappointed and upset."

Scarlett, in her evidence said:

"I felt a bit disappointed that I could not go to that school - I wanted to go to that school. They wrote in a book that they do take people with disabilities... it [the School] had lots of things that I'd like to go on."

Clearly the refusal of enrolment had an effect both on Scarlett and on her family. I accept Mrs Finney's assessment that the effect will be ongoing. Scarlett will understand the implications of the refusal as she grows older, and it will have a far greater impact on her at that time. Rejection and different treatment are two methods by which people with a disability are disempowered, and the School's action has the potential to significantly impact on Scarlett's life. In these circumstances I have determined that an appropriate amount for general damages is $5,000.

As indicated earlier, although Mr and Mrs Finney lodged this complaint, it is Scarlett who was aggrieved. I can award damages for the impact of the discrimination on the aggrieved person, but I can only award the damages to the complainants.

However, I make the award to Mr and Mrs Finney as trustees for their daughter Scarlett, as it was Scarlett who was aggrieved by the discrimination of the school.

3.       DETERMINATION

Accordingly, pursuant to s.103 of the Act I make a determination declaring that the School pay the sum of $42,628 to Mr and Mrs Finney, as trustees for their daughter Scarlett Finney, on or before 28 days from the date of publication of this decision.

Dated this 13th day of June 2000

GRAEME INNES AM Inquiry Commissioner