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

No. H98/51
Number of pages - 18

DATES OF HEARING: 23 April, 9 June 1999
#DATE 30:08:1999


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.


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.