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Wayne Marsden v Coffs Harbour and District Ex-Servicemen & Women's Memorial Club Ltd

Disability Disability Rights
Friday 14 December, 2012



Wayne Marsden v Coffs Harbour and District Ex-Servicemen & Women's
Memorial Club Ltd


IN
THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
WILLIAM CARTER Q.C.
No. H98/51
Number of pages - 18

DATES OF HEARING: 23 April, 9 June 1999
DATE OF WRITTEN REASONS: 30 August 1999
PLACE: COFFS HARBOUR, NSW
#DATE 30:08:1999

Appearances

Paul Batley of the Legal Aid Commission of NSW for the Complainant.
Stephen Wilson of counsel, instructed by Fishburn Watson O'Brien, Solicitors,
for the Respondent.

WILLIAM CARTER Q.C.

1..        The complaint

By letter dated 11 December 1996 the complainant lodged with the Human Rights
and Equal Opportunity Commission ("the Commission") a complaint that the
respondent club had discriminated against him in breach of the Disability
Discrimination Act 1992
(Cth) ("The DDA").

The complainant is and has for some years been opiod dependant having formerly
been addicted to heroin. He is presently and has been for about seven years
a regular user of methadone. He also suffers chronic persistent hepatitis as
a result of a Hepatitis C infection. His complaint is based on the assumption
that by reason of the foregoing he suffered at the material time "a disability"
within the meaning of the DDA.

The complainant had been a member of the Club for some years and was a regular
user of its facilities. His complaint is that since 1994/5 he has been the victim
of a series of discriminatory acts by the staff of the Club and that ultimately
on 12 November 1996 at a meeting of the Judiciary Committee of the Club the
decision was taken that he be expelled as a member. This decision was confirmed
by a decision of the Club's Board pursuant to Article 27(a) of the Articles
of Association of the Club. He was informed that pursuant to Article 27(h) of
the Club's Articles of Association he was not allowed to use the Club's facilities,
attend Club functions or be an honourary member or temporary member for a period
of five years from 12 November 1996.

The Club is an incorporated association and a registered club pursuant to the
Registered Clubs Act 1976
(NSW) and as such its operation is made subject
to the provisions of that Act.

In his letter of complaint dated 11 December 1996 the complainant alleges a
breach by the Club of s.27 of the DDA in that it denied him access to the service
of liquor, that he was subjected to disciplinary action by the Club after having
been removed from Club premises and that he was later expelled from membership
of the Club. He relies also on a breach of s.24 of the DDA in that the Club
refused to provide him with services or alternatively that the Club discriminated
against him having regard to the requirements or conditions which the Club imposed
upon him as a member of the Club.

2..        The statutory provisions

By s.4 of the DDA "disability" in relation to a person means:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or
illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's
body; or
(f) a disorder or malfunction that results in the person learning differently
from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes,
perception of reality, emotions or judgment or that results in disturbed
behaviour;
...

Disability discrimination is defined by s.5(1) of the DDA as follows:
5.(1) For the purposes of this Act, a person (discriminator)
discriminates against another person (aggrieved 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 of the DDA provides:
For the purposes of this Act, a person (discriminator)
discriminates against another person (aggrieved 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 27(2) of the DDA which is headed "Clubs and Incorporated Associations"
provides:
...
27.(2) It is unlawful for a club or incorporated association, the committee of
management of a club or a member of the committee of management of a club or
incorporated association to discriminate against a person who is a member of
the club or association on the ground of the member's disability or a
disability of any of the member's associates:
(a) in the terms or conditions of membership that are afforded to the member;
or
(b) by refusing or failing to accept the member's application for a particular
class or type of membership; or
(c) by denying the member access, or limiting the member's access to any
benefit provided by the club or association; or
(d) by depriving the member of membership or varying the terms of membership;
or
(e) by subjecting the member to any other detriment.

Section 24(1) of the DDA is on these terms:

(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 or a disability of any of that other
person's associates:

(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.

3..        The complainant and the "disability"

The complainant was born on 5 August 1961. He was seventeen when he first used
heroin and thereafter continued to use it spasmodically. He later became
addicted to it. He and a friend conducted a profitable landscaping business in
Sydney until in early 1992 he and his friend overdosed on heroin as the result
of which his friend died. As a result of a promise made to his deceased
friend's mother, he decided to attempt to forsake heroin and he returned to
Coffs Harbour where he was accepted on to the methadone program operated at the
Praxis Centre which is attached to the Coffs Harbour Base Hospital. He has
remained on that program ever since.
In order to avoid the debilitating symptoms of withdrawal from heroin he
commenced on a daily dose of methadone which was increased to 90 mgs daily. He
has over the years been able to reduce the dose but not to the point where he
can withdraw entirely from the program. His desire is to avoid the need for a
daily dose of methadone if possible and to commence the use of Nalthrexone but
his financial circumstances preclude that. He has for some years been infected
with Hepatitis C as the result of having been an intravenous drug user. In the
earlier stages of his illness he suffered tiredness, nausea and pain in the
liver. More recently he has used herbal medicines and natural therapies and he
has noticed a considerable improvement in his general health.
The complainant remains unemployed. The methadone program requires his daily
attendance at the Praxis Centre at 8.30am to receive a dose of methadone. As a
matter of daily habit he would then meet friends for a cup of coffee and at
about 10.00am go to the Club's premises to play snooker and/or or to use the
gaming machines. He usually remained at the Club until about lunchtime. Daily
attendance at the Club and the use of its facilities was a regular and
important part of the complainant's daily life.
He complains that his expulsion from the Club had seriously damaged his social
life and that he has been denied the right to engage in an important aspect of
the social life of the Coffs Harbour community.

4..        The respondent club

The respondent club is the main focal point for social activity in the Coffs
Harbour district. It has a membership of approximately 17,000 people. Its
facilities are extensive and well appointed and it provides to its membership a
wide range of social and recreational activities. All applicants for
membership of the Club agree to be bound by the Club's Articles of Association.
Article 27(a) provides:-
"If any member shall in the opinion of the Board or any disciplinary
sub-committee of the Board wilfully refuse or neglect to comply with any of the
provisions of the Memorandum of Association or these Articles of Association or
the By-laws of the Club or in the opinion of the Board or any disciplinary
sub-committee of the Board be guilty of any conduct prejudicial to the
interests of the Club or be guilty of conduct which is unbecoming of a member
or which shall render the member unfit for membership for the Club the Board or
a disciplinary sub-committee shall have power to reprimand, suspend for such
period as it considers fit, expel . . . such member..."
Article 27(h) provides as follows:
"any person who has been expelled from membership of the Club shall not be
eligible to be admitted for membership of the Club... until a period of at
least five years have elapsed from the date of expulsion."
Section 44A(i) of the Registered Clubs Act 1976 (NSW) provides as
follows:-
"A secretary of a registered club who:
(a) permits intoxication on the club premises; or
(b) permits any indecent violent or quarrelsome conduct on the club
premises,
is guilty of an offence
Maximum penalty 50 penalty points".
I am satisfied that those responsible for the management of the Club are
vigilant in ensuring that the Club's Articles of Association are complied with
for the benefit of the membership of the Club and that compliance with the Registered Clubs Act 1976 is insisted upon. In this respect I am
satisfied by the evidence that the Club maintains a Responsible Service of
Alcohol ("RSA") Policy in accordance with s.44B of the Registered Clubs
Act
.
The case for the respondent is that in expelling the complainant from
membership of the Club the Board was not acting unlawfully in breach of the DDA
but that it acted on reports furnished to it by Club staff concerning the
conduct and behaviour of the complainant whilst on the Club premises and in the
decisions which it made it was lawfully complying with its obligations under
the Club's Articles of Association and the Registered Clubs Act 1976.

5..        The relevant incidents

The series of incidents which culminated in the complainant's expulsion from
the Club begin with an incident which occurred on 3 December 1994. It seems
that two youths, not members of the Club, were making a nuisance of themselves
outside the entrance to the Club premises. They were in possession of a
bicycle which was confiscated from them. At that time the ownership of the
bicycle was unclear but it was later identified as the property of the
complainant. A later inspection of the bicycle also discovered in a bag
attached to it a 10 ml syringe which it was presumed was for illegal drug use
and the property was handed to police.
Shortly afterwards on 4 January 1995 the complainant was observed by Peter
Nicholls, a bar supervisor at the Club, to be acting in a manner which in Mr
Nicholls' view was consistent with his intoxication. The complainant was with
a friend who appeared to be similarly intoxicated and both were asked to leave
the premises by Mr Nicholls, which they did. The complainant's version of the
incident is that on that day, a very hot day, he had walked to the Club and was
fatigued and nauseated. He sat down on the chair and leaned backwards with his
eyes closed. He was approached by a staff member who said "I think you are on
something mate" but that he, the complainant, replied "no, I'm not well." The
staff member insisted that he leave the premises which he did. Mr Nicholls gave
evidence at the inquiry and expressed the view that the complainant appeared to
be intoxicated and that his condition was not apparently the result of fatigue.
This incident and the earlier incident which involved the complainant's bicycle
lead to the complainant being interviewed by the Operations Manager of the
Club, Peter Brewis, who made a note of the fact of the interview and that note
is dated 14 June 1995. Mr Brewis stated that the complainant was counselled
concerning the incident of 4 January 1995. In the course of the interview the
complainant disclosed to Mr Brewis that he was opiod dependant and that he was
then on the methadone program. He was told that being in the Club in "an
affected condition" was unacceptable. I am satisfied that on 4 January 1995
the complainant presented to Mr Nicholls as one who was intoxicated. The cause
of the intoxication remains unclear.
In respect of this exchange between the complainant and Mr Brewis it should be
noted that it appears to have been the first occasion on which the Manager, Mr
Brewis, was informed by the complainant of his drug addition and of the fact
that he was taking methadone. It seems that the incident in question involving
Mr Nicholls and the later meeting between the complainant and Mr Brewis took
place against the background of the bicycle/syringe incident. In any event
there appears to have been no concern on the part of the Club prior to December
1994/January 1995 concerning the conduct of, or the continuing membership of,
the complainant.
It was submitted for the complainant that the finding of the syringe on the
bicycle and the fact of the complainant's ownership of it, which was later
confirmed, taken with the complainant's apparent "intoxication/fatigue" on 4
January 1995 in the Club and the disclosure of his involvement in methadone,
created in the mind of Club officials an adverse reaction to the complainant.
He was an admitted heroin addict who was taking methadone. Prima facie he was
said to have been identified as a potential problem, given the generally
negative view which society has towards drug use and drug users. It was this
mindset, so it was submitted, which in truth determined the later attitude of
the Club and its officials towards the complainant particularly in the period
June-November 1996, rather than any unacceptable behaviour on the part of the
complainant.
On the other hand it should be noted that subsequent to the incident in January
1995 and until the involvement of Mr Brewis with the complainant in June 1995,
and indeed subsequently, there was no issue or any apparent major concern
between the complainant and the Club concerning appropriate behaviour and
matters relevant to his continued membership of the Club. Mr Brewis counselled
the complainant in June 1995 and the latter continued in his habitual use of
the Club's facilities without incident. This situation continued for the next
twelve months until June 1996 when the next incident occurred.
Whilst I am satisfied that the finding of the syringe and the complainant's
later admission of drug taking to Mr Brewis raised concerns in the mind of the
latter, there is no reason to believe that in the period June 1995 - June 1996
the complainant was treated in anyway differently from or less favourably than
those many other members who daily used the Club and its facilities.
The next incident occurred on 12 June 1996. A written report of a staff member
asserts that the complainant was observed to be "very wobbly" and was spoken to
about his condition. It is reported that the complainant said that he "was
under the effect of methadone." He was reported as being "unsteady on his
feet, was slurring his speech and appeared severely affected by something."
This was reported to the Operations Manager. Shortly thereafter the
complainant was spoken to in the foyer of the Club and was asked to leave
because of his condition. He did so and shortly afterwards attempted to
re-enter but was refused entry. He claimed he was the victim of
"discrimination".
The complainant's description of this incident is essentially the same as that
reported by the staff member. Again he alleges that any appearance of
"intoxication" was wrongly perceived by the staff and that he was only feeling
nauseated and fatigued. The complainant's version of this incident is only
really consistent with an unjustifiable intrusion by a staff member attended by
an unfounded assertion that "she suspected I was on some form of intoxicating
substance."
The fact of the incident and the report of the staff member can only sensibly
be understood on the basis that, whatever its cause, staff members were
concerned by the demeanour and presentation of the complainant on the basis
that he appeared to be intoxicated by "something". Obviously they considered
that intervention was justified and he was asked to leave and then refused
re-entry. It is not possible to form a concluded view on the material as to the
apparent degree of intoxication of the complainant nor of its cause. On the
other hand there is no basis for concluding that the intervention by staff was
totally unjustifiable or that it was the result of a conspiratorial agreement
to falsely allege that the complainant's behaviour was such as to justify his
removal from the Club. The complainant's version of the incident is really
based on that assumption. As he said, he thought they were "taking it out on
me" because of a false belief that he was using methadone "as a drug, not as a
treatment".
Whilst those responsible for his removal were not called to give evidence there
is no satisfactory basis for alleging any form of conspiracy to make false
allegations concerning the complainant. If that was so then the timing is
somewhat curious. Twelve months had elapsed since Mr Brewis had counselled the
complainant after the latter had disclosed the fact of his involvement with
methadone. There was ample opportunity during that time to falsely accuse the
complainant. Not only did that not happen but on the contrary the complainant
seems to have gone about his usual business until the confrontation which
occurred with staff in the Club premises at approximately 12.08 pm on 12 June
1996.
While I am not clear about the nature and cause of the complainant's behaviour
on that day I am satisfied that he presented to staff as intoxicated and that
they properly believed that their intervention was justified in ensuring the
maintenance of proper standards within the Club. It should be noted in passing
that Dr Martyn gave evidence that a person with Hepatitis C who is taking
methadone does not on that account demonstrate signs of intoxication nor is a
person on the methadone program who consumes alcohol at a greater risk of
intoxication.
On the next day, 13 June 1996, the Operations Manager, Mr Brewis, wrote a
letter to the complainant requesting his appearance before the Judiciary
Committee on Tuesday, 9 July 1996 "regarding behaviour unbecoming of a member."
The matter of concern was particularised as follows:-
"repeated incident of unsatisfactory behaviour despite warnings from Management
the last being 12 June 1996."
The letter continued to inform the complainant of his rights and that he would
have the opportunity "to show cause why your membership should not be
suspended." This meeting had to be adjourned because of the unavailability of
the complainant and it was rescheduled for Tuesday, 13 August 1996.
The proceedings at this meeting seem to have been relatively cordial and
harmonious. The complainant fully disclosed matters relevant to his health and
his use of methadone. A question was raised by the committee as to whether the
complainant should consume alcohol whilst on the methadone program. Relevant
medical opinion, which was not available to the committee, does not support the
necessary abstention from the consumption of alcoholic beverages by one who is
on the methadone program. However one of the members of the committee who
apparently cited the experience of a family member who had a liver disorder,
suggested abstention from liquor to the complainant who agreed that that was
acceptable to him. As he said in the course of the inquiry such a suggestion
was "irrelevant" as he drank very little. The committee at this meeting
resolved to reinstate the complainant's membership (on 12 June 1996 the
complainant's membership card had been confiscated upon his attempt to re-enter
the Club) and it decided that he be given a verbal warning and that it be
recommended to him that he not drink alcohol whilst on medication and on Club
premises.
Whether the terms of the recommendation can be supported on medical grounds is
in my view beside the point. It was a layman's view which prevailed. It was,
I am satisfied, seen as a bona fide attempt by the committee to modify or
control any excessive behaviour to which the complainant might be subject
because of his drug use which had been freely and fully revealed to the members
of the committee. The proceedings concluded harmoniously with the
complainant's membership being restored and a recommendation made which was
apparently seen to be in the best interests of the Club and of the complainant
himself.
I am satisfied that the committee proceedings on 13 August 1996 were conducted
without any hint of discriminatory conduct towards the complainant. Rather
they proceeded cordially with the complainant happy to accept the stated
outcome.
By letter dated 16 August the complainant was formally advised that "all
membership privileges are to be reinstated."
On 4 October 1996 it was reported to the Chief Executive Officer, Stephen
Fraser, that on that day the complainant had consumed a full glass of Bailey's
Irish Cream. Mr Fraser spoke to the complainant about this. During evidence at
the inquiry the complainant justified his having taken the drink on the basis
that the recommendation at the August meeting was a suggestion only. Mr Fraser
on that same day wrote a letter to the complainant as follows:-
"with reference to today's conversation and meeting regarding the consumption
of alcohol when on medication.
At a previous Judiciary Meeting held on Tuesday 13 August the Board warned you
not to consume alcohol while on a program of medication. Therefore I am
advising you that as from today you will not be allowed to purchase alcohol for
consumption on Club premises while you are on medication.
As I explained the situation to you regarding the Responsible Service of
Alcohol Act (sic) and our vulnerability to the interpretation of intoxication.
I believe this is the most sensible avenue to alleviate any possibility of
reprisals. (sic)"
I am satisfied that Fraser was concerned to ensure compliance with the RSA
policy and that he at least was concerned about the possibility of the
complainant being again described as "intoxicated" whilst on Club premises.
The final incident of note occurred on 15 October 1996.
According to the complainant he was playing the poker machines unsuccessfully
and in an apparently angry gesture spoke in a way which attracted the attention
of some females who were using the gaming machines nearby. They responded
unfavourably towards the complainant because of his attitude and he told them
to "mind your own business." Staff then intervened. The complainant told the
inquiry that he was asked to leave. He replied to a female staff member that
you "give me the shits." He was told to "watch his language" and replied that
he had had a "gut full" and was going to do something about it. He denied that
he pointed his finger at the female staff member or that he was demonstrating
any indicia of "intoxication."
Various reports of the incident were prepared by staff members. A report by
Bruce Taylor, the Duty Manager, stated that like Mr Nicholls, the Bar Manager,
referred to above, he was of the view "that the complainant was affected by
either alcohol or a substance" and that the complainant's demeanour presented
as "uncoordinated". The report claimed further that the complainant had argued
loudly with staff and in the course of this the complainant alleged that he was
being "victimised". The female staff member involved in the incident reported
also that the complainant appeared to her to be intoxicated and that he argued
loudly with her and was poking at her face with his finger. He claimed that he
was being victimised and that he would "sue" the Club and the staff member
concerned.
These reports by staff members of the incident in question became the subject
of further proceedings at the Club's judiciary committee. On 28 October 1996
Mr Brewis, the Operations Manager, wrote to the complainant and requested his
appearance before the committee on 12 November 1996 "regarding behaviour
unbecoming of a member." The letter particularises the purpose of the meeting
as being:
"to answer reports of unacceptable behaviour and attitude towards staff
members."
Again he was informed that he would at the meeting have the opportunity to show
cause "why your membership should not be suspended.".
The complainant told the inquiry that he deliberately chose not to attend the
meeting on the ground that he believed that the Club and its officials were
discriminating against him and that in effect he would not receive a fair
hearing. Instead he sought legal advice and his written complaint to the
Commission was forwarded under cover of a letter dated 12 December 1996.
At the meeting on 12 November 1996 in the absence of the complainant the
Judiciary Committee and the Board resolved that he be expelled as a member of
the Club and he was advised accordingly by letter dated 22 November 1996 part
of which letter reads:-
"the Board, under Article 27(a) of the Club's Articles of Association, have
resolved that you be expelled as a member of the Coffs Harbour Ex-Services
Club.
I must inform you that under Article 27(h) of the Club's Articles of
Association you shall not be allowed to use Club facilities, attend Club
functions, or be an honorary or temporary member of this Club for a period of
five years from 12 November 1996."

6..        Conclusion and determination

As pointed out above the earlier meeting held on 13 August 1996 had resolved
matters amicably.
It is idle to speculate as to what might have occurred at the meeting on 12
November 1996 had the complainant responded positively to the letter of 28
October and had attended the meeting. There is no basis for submitting that
the Club acted in anyway unlawfully in deciding to expel the complainant who
had deliberately chosen not to attend and had therefore failed to show cause at
the meeting. It can be assumed that the meeting would have heard concerns
expressed by both sides had he attended. It can also be assumed that since the
complainant chose not to attend the meeting the "reports" of the 15 October
incident in the Club were read and accepted as uncontradicted and the decision
was then taken to expel him from membership. The proceedings seemed to have
been correctly taken in accordance with the Articles of Association of the
respondent and the general law. There is simply no acceptable evidence that
the decision on 12 November 1996 was discriminatory on the ground that the
complainant was treated "less favourably" because of his opiod dependence
and/or the fact that he suffered a chronic hepatitis infection. He was alleged
to have been intoxicated and to have exhibited unacceptable conduct within the
Club. He was subjected to the usual process which the Club adopted in like
cases. He was given the opportunity to show cause which he rejected. There
can be no basis for suggesting that in expelling him in these circumstances the
Club treated him less favourably than any other member on the basis that he was
opiod dependant.
In so concluding I have taken into account the following:-
* From the time the Club through its Manager, Mr Brewis, was made aware of the
fact that the complainant was opiod dependant and on the methadone program
(January-June 1995), at least during the ensuing twelve months there was no
evidence of any discriminatory conduct by or on behalf of the Club towards the
complainant.
* In respect of the incident of 12 June 1996 staff members reported their
concerns in good faith on the basis of their observations that the complainant
was "intoxicated".
* The meeting of 13 August 1996 which was convened as a result of the 12 June
incident, was apparently conducted in good faith as required by the Articles of
Association of the Club and having regard to the Club's statutory obligations
under the Registered Clubs Act. It was a cordial encounter and
concluded with the Club maintaining the complainant's membership and
recommending that he abstain from consuming alcohol, a recommendation which he
was prepared to accept.
* The decision by Mr Fraser, the Chief Executive Officer, on 4 October 1996
that the complainant would not be allowed to purchase alcohol for consumption
on Club premises was one taken in good faith and in pursuance of the RSA policy
which bound the Club.
* The incident of 15 October 1996, as reported by staff members of the Club was
such as to justify their intervention as required by its Articles of
Association in the best interests of the members and having regard to the
Club's obligations under the Registered Clubs Act.
* The deliberate failure of the complainant to attend the meeting of 12
November 1996 was not justified nor could it be justified on the basis that the
complainant was being "victimised".
I am not persuaded on inquiry that the respondent Club unlawfully discriminated
against the complainant in breach of s.27(2) of the DDA nor that his expulsion
from the Club on 12 November 1996 was because of his "disability" said to be
constituted by the condition of opiod dependence, the use of methadone and the
condition of Hepatitis C infection.
In his complaint he alleges that on denying him access to liquor within the
Club he was also discriminated against in terms of sections 24 and 27 of the
DDA on account of his "disability".
At the hearing on 13 August it was recommended to him that he abstain, one that
he was happy to accept. On 4 October Mr Fraser had advised him that he would
not be served liquor in the Club. There is no satisfactory basis for a
conclusion that the actions of the Club or of its Chief Executive Officer in
this respect were taken on account of the alleged disability. Rather it is
clear that it was the apparent intoxication of the complainant on an earlier
occasion and his unacceptable conduct which were of concern to the Club and its
officers given the fact that by law it was required to adhere to a policy which
demanded the responsible service of alcohol. This applied to Club members
irrespective of who they were. I am satisfied that the Club's response in
respect of the complainant was based on such a consideration rather than the
alleged disability of the complainant.
If, as was submitted, the recommendation or the directions of the Club and its
officers constituted "a requirement or condition" with which the complainant
had to comply, such a requirement or condition was a reasonable one given the
need for the Club to comply with its legal obligations under the Registered
Clubs Act
. Nor is it clear that such a requirement or condition would have
a disparate effect on people with chronic Hepatitis C or those who are
methadone dependant. In my view the various actions of the Club and/or any
conditions imposed on the complainant are to be sourced, firstly, to the Club's
concern to ensure compliance with its legal obligations both generally and to
members of the Club and secondly to what was seen by Club officials to be the
unacceptable behaviour of the complainant on account of his apparent
intoxication.
The various actions of the Club and, or, its officials are dealt with seriatim
in this decision. I am satisfied that in respect of none of them did the Club
or any officer of the Club discriminate against the complainant in terms of
either sections 5, 6, 24 or 27 of the DDA.
In my view any decisions taken in respect of the complainant, including his
expulsion from the Club, were based on the reports of his "intoxication",
whatever its cause and the reported associated behaviour of the complainant.
This decision was responsibly taken by the Club in the perceived best interest
of the membership of the Club and in accordance with the Articles of
Association of the Club and having regard to its statutory obligations pursuant
to the Registered Clubs Act 1976.
It is my view that the complaint has not been substantiated.

7..        Section 4 - "Disability"

I have reached the above stated conclusion and made the determination on the
assumption that the complainant was at all material times suffering a
"disability" within the meaning of s.4 of the DDA. I have left until now the
question whether on the evidence given to the inquiry it can be properly held
that the complainant suffered a "disability" as defined. The medical evidence
given by Dr Martyn is to the effect that methadone is designed to normalise or
to stabilise the health of a person addicted to heroin who would otherwise be
subject to the painful and distressing symptoms which are associated with
withdrawal from heroin in the case of one who is addicted to it. As the
complainant pointed out the effectiveness of the program depends on the user
being able to determine over time the appropriate daily dose. A person with
the appropriate dose can then live a reasonable lifestyle free from the
symptoms of heroin withdrawal. In short, methadone treatment is designed to
improve and stabilise the lifestyle of the person on the program.
Dr Martyn expressed the view that methadone does not make a person exhibit
signs of intoxication nor does the use of methadone put the user at a greater
risk of intoxication. Similarly he gave evidence that Hepatitis C does not
cause a person to appear to be intoxicated nor does Hepatitis C cause a person
to exhibit signs of intoxication with a moderate intake of alcohol.
The primary "disability" relied upon by the complainant is the presently
existing opiod dependence, that is, the condition of heroin/methadone
dependence in combination.
A question may arise under the DDA as to whether a person suffering an
addiction whether on account of a drug or alcohol suffers a "disability" within
the meaning of the DDA. Prima face such a condition of addiction may be
thought to be comprehended by sub-paragraph (g) of the definition. Such an
inclusion however may give rise to difficulties in the administration of the
DDA. However that question does not arise here because the alleged
"disability" is the complainant's dependence on methadone in order to relieve
against the symptoms of heroin withdrawal even though the use of the methadone
is itself addictive and so renders the complainant opiod dependant. The
question therefore arises whether the complainant given his present dependence
on methadone thereby suffers a disability. If it is properly said that the
original addiction to heroin falls under sub-paragraph (g) of the definition
can it be properly said that the treatment of that addiction by methadone which
is designed to relieve against withdrawal from heroin likewise falls within
paragraph (g) given that the treatment itself is addictive?
In my view a person who suffers a "disorder illness or disease" of the kind
described in sub paragraph (g) of the definition of "disability", does not
suffer a disability as defined if the appropriate treatment regime gives relief
against the consequences of the "disorder etc" which are stated in the
definition even though the treatment itself creates a condition of dependence
which may be permanent. On that basis one might conclude that opiod dependence
in these circumstances does not constitute a disability as defined.
The second aspect of the complainant's "disability" is said to be the condition
of Hepatitis C. Such a medical condition falls within sub-paragraph (c) and is
clearly within the definition. However there is no evidence that that
condition of Hepatitis C can properly be identified as the basis for the
respondent's decision to expel the complainant nor of any other action by or on
behalf of the Club which is allegedly discriminatory.
I have concluded that the complaint has not been substantiated.