Fetherston v Peninsula Health [2004] FCA 485

FEDERAL COURT OF AUSTRALIA

Fetherston v Peninsula Health [2004] FCA 485

DISCRIMINATION – disability discrimination – medical practitioner employed by public hospital – vision impairment due to diabetes – failure to provide aids – termination of employment – whether applicant discriminated against on ground of disability – whether requirement of independent assessment of visual disability reasonable – refusal to allow independent eye specialist to provide report to employer – whether termination "because of" disability – whether treatment less favourable than treatment that would be given to a person without the disability in "circumstances that are the same or are not materially different" – assessment of damages – interest

Disability Discrimination Act 1992 (Cth), ss 3, 4, 5, 6, 10, 15 Human Rights and Equal opportunity Commission Act 1986 (Cth) s 46PO(4)(d) Federal Court of Australia Act 1976 (Cth) s 51A Purvis v New South Wales (Department of Education and Training) (2004) 78 ALJR 1 applied Addis v Gramophone Company [1909] AC 488 cited Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 256 cited Stephenson v Human Rights and Equal Opportunity Commission (1995) 61 FCR 134 at 142-143 cited Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26 at [44] referred to Spencer v Dowling [1997] 2 VR 127 at 144-145 followed EMCL Pty Ltd v ESANDA Finance Corporation Pty Ltd [1999] FCA 978 at [62] applied GRAHAM JOHN FETHERSTON v PENINSULA HEALTH & ORS NO. V 391 OF 2002 HEEREY J 23 APRIL 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V391 OF 2002

BETWEEN: DR GRAHAM JOHN FETHERSTON

APPLICANT

AND: PENINSULA HEALTH

FIRST RESPONDENT

DR JOHN BOTHA

SECOND RESPONDENT

ASSOCIATE PROFESSOR DAVID LANGTON