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Scott and Bernadette Finney on behalf of Scarlett Finney v The Hills Grammar School

Disability Disability Rights
Friday 14 December, 2012


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