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
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
See final paragraph (Conclusion)
HON WILLIAM CARTER QC (Inquiry Commissioner)
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.
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
William Carter QC