Heystraten -v- Naidu [2000] NSWADT 33

CITATION: Heystraten -v- Naidu [2000] NSWADT 33 DIVISION: Equal Opportunity Division APPLICANT Richard Heystraten PARTIES: RESPONDENT Radhakrishna Naidu t/a Surry Hills Medical Centre FILE NUMBER: 991071 HEARING DATES: 14/03/2000 SUBMISSIONS CLOSED: 03/14/2000 DATE OF DECISION: 03/29/2000

BEFORE: Raphael K - Judicial Member; Clayton S - Member; Nemeth de Bikal L - Member APPLICATION: Disability Discrimination - Goods and Services MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: APPLICANT REPRESENTATION: A Healey, barrister RESPONDENT P Braham, barrister ORDERS: 1. Application dismissed.; 2. Applicant's order for costs on an indemnity basis made on 18 February 2000 to remain in force.

1 On 29 February 1999 Mr Richard Heystraten who was then working as a cook with the Positive Living Centre in Surry Hills cut his finger on the meat slicer in the kitchen. The wound bled profusely and Ms Barbara Delcasse dressed it and put Mr Heystraten in her car to go to the Surry Hills Medical Centre, a short distance away. When they entered the centre Mr Heystraten was taken aside immediately and placed in a treatment room. He was seen by the nurse on duty, Ms Heather Stewart. Ms Stewart inspected the dressed wound but did not redress it. After settling Mr Heystraten Ms Stewart was about to leave the room when Mr Heystraten informed her of his HIV and Hepatitis positive status. When Ms Stewart returned to the room they had a conversation as a result of which Mr Heystraten left the premises and went to seek treatment at St Vincent's Hospital with a referral from the centre. 2 Mr Heystraten claims that the terms of the conversation and the actions of the nurse constituted discrimination against him on the grounds of disability for which the proprietor of the centre Dr Radhakrishna Naidu is vicariously liable. Following the incident Mr Heystraten claims he was unable to work properly and eventually had to give up his job at the Positive Living Centre. He developed a suspicion of the medical profession and required regular counselling often on an urgent basis. He claims that a number of significant improvements in his quality of life which had come about prior to the accident and which were closely associated with his being able to work at the Positive Living Centre were lost and asks the Tribunal to award him damages for the act of discrimination and claims certain other relief intended to ensure that acts of discrimination do not re-occur at the Surry Hills Medical Centre. 3 The Tribunal heard evidence from Mr Heystraten and Ms Delcasse. An affidavit of Robert White was read on behalf of the applicant. Dr Naidu and Ms Stewart gave evidence for the respondent. 4 The act of discrimination alleged against the medical centre is that it declined to treat Mr Heystraten and referred him to St Vincent's Hospital because he had revealed his positive HIV status. This is denied by the centre which says that the sole reason for the complainant being referred to St Vincent's Hospital was that there was only one Doctor on duty who was with a patient and with three others waiting and that it was believed that Mr Heystraten would receive speedier treatment at St Vincent's Hospital. 5 There is no suggestion that Dr Naidu was present at the surgery at the time or was in any way involved in the alleged acts of discrimination. 6 It will be clear from the above that the complaint turns upon what was said between Ms Stewart and the complainant. The Tribunal is quite satisfied that if Mr Heystraten was declined treatment at the centre because of his HIV status then this would constitute discrimination for which Dr Naidu would be liable. Evidence was given that it was the policy of the centre where they were unable to treat patients immediately and had suggested that they went to St Vincent's casualty or elsewhere to offer them the opportunity to remain in the centre waiting. This did not occur with Mr Heystraten. 7 Tribunals and Courts of Law are frequently asked to decide which of two versions of the same conversation they accept. It is often a very difficult task particularly where both witnesses are credible. The decisions are made with the benefit of a number of factors. Perhaps the most important is the witnesses' demeanour in the witness box, his or her method of giving the evidence, the way questions are answered in cross-examination, the willingness to acknowledge the possibility of error and changes in recollection due to the passage of time. Other matters that would be looked at include the interest the witness might have in the outcome of proceedings and the inherent likeliness or unlikeliness of the evidence when considered with the background of the known facts. Finally, most Tribunals seek to find some form of corroboration from other evidence of whatever nature. 8 The decision that is made by the Tribunals is not one between believing one witness and not believing another or holding that one witness is telling the truth and the other is lying. More often than not the decision comes down to the preference of one recollection over another. Recollection is notoriously unreliable. The unreliability can rise out of a misconstruction of words said almost immediately or from difficulty with accurate recollection over time. Often once a form of words is recollected as being what was said that recollection becomes fixed and immutable. But just because one party is adamant that certain things were said it does not mean that that person's evidence is to be preferred. 9 The Tribunal has no doubt that Mr Heystraten and Ms Stewart gave their evidence truthfully. Neither attempted to deceive or mislead the Tribunal. Ms Stewart told the Tribunal what she honestly believed she said and Mr Heystraten told us what he honestly believed he heard. Ms Stewart was closely cross-examined about what was said and it was put to her that she said the words deposed to by Mr Heystraten in his affidavit at paragraph 8. The conversation he there deposes to was as follows: Stewart: "No offence to you or your HIV status, but we cannot treat you here. We don't have the clean-up facilities to treat you. You will have to go to a hospital. We will give you a referral." 10 In her affidavit Ms Stewart denied that conversation, but under cross-examination she explained that she had said that she denied the conversation because it did not accurately reflect what she said although she conceded that she had said much of it. Ms Stewart agreed that after Mr Heystraten had told her that he was HIV positive she said "Oh" and left the room. She then stated that she couldn't remember exactly what she said but it was certainly possible that she said "No offence to you or your HIV status but we can't treat you here." What she denies absolutely is saying the words "We don't have facilities". She stated that the medical centre most certainly had clean-up facilities. She denied that the decision to refer Mr Heystraten to St Vincent's had anything whatsoever to do with his HIV status and confirmed the evidence given in her affidavit that she had contacted the only doctor on duty who had suggested that the complainant be referred there because of the wait involved at the medical centre. 11 During the course of her evidence Ms Stewart said that it was her own belief that the medical centre did not have resources, by which she meant human resources in terms of doctors, and it occurs to the Tribunal that what Ms Stewart may have said was: "No offence to you or your HIV status but we can't treat you here, we don't have the resources. We will have to send you to St Vincent's." 12 If that is what was said it is quite understandable that Mr Heystraten who by his own admission and medical history was of a nervous or highly strung disposition might have misconstrued the word "resources" as "facilities" and automatically believed that the reference that was being made was a reference to facilities required arising out of his HIV condition. This is what he reported to Ms Delcasse immediately and this has been the consistent complaint. Ms Stewart was firm in her view that the comments which were made to Mr Heystraten and his treatment did not arise out of his HIV status but arose out of the status of his injuries. In effect what she was saying was that any person who presented with Mr Heystraten's injuries would have been treated in exactly the same way. If this is the case then Mr Heystraten was not discriminated against on the grounds of his particular disability, namely HIV positive status. Generally, any person attending upon a Doctor's surgery is a person under a disability but when the disabilities are universal discrimination could only arise if one disability is treated differently from another. 13 It is the Tribunal's view that Mr Heystraten has not made out the onus of proving on the balance of probabilities that his treatment was brought about because of his particular disability. In coming to this conclusion the Tribunal has had regard to all of the evidence given. This includes the evidence given by Ms Stewart and Dr Naidu as to their personal and the practice's attitude towards persons of an HIV positive status. The practice is in Surry Hills. By its own admission it does not have a large percentage of HIV positive patients but it must be aware that any patient coming to it from that area could be a person in a high risk category. It is almost inconceivable that the practice would not operate according to universal precautions that have been in existence for at least a decade. No evidence was given as to what extra work clean-up facilities for HIV positive persons might involve, if they were well known and required particular equipment it would have been easy for the complainant's Counsel to have asked either Dr Naidu or Ms Stewart whether they were present in the centre at the time. The evidence that was given of procedures seemed to indicate that where it was known that a person who was bleeding was HIV or Hepatitis positive slightly more care would be taken and two pairs of gloves would be worn. If this is all (and it is the only evidence the Tribunal has) then the suggestion that the lack was of "resources" rather than "facilities" has merit. 14 The words deposed to by Mr Heystraten in paragraph 8 of his affidavit indicate a clear discriminatory intent. In that context it was appropriate to look at the surrounding circumstances and one of these was the personal circumstances of Ms Stewart. Evidence was given that Ms Stewart is the mother of a haemophiliac boy who was also Hepatitis positive. In the past Ms Stewart's son had been the object of considerable discrimination in her country of origin, New Zealand. Ms Stewart was an activist against this type of discrimination and gave evidence that she fully understood its nature. In Sydney she worked for the Mardi Gras committee medical support unit and for Foley House. The Tribunal took these facts into account when considering whether or not the complainant had satisfied the test of establishing that the words were said on the balance of probabilities. In the face of Ms Stewart's denials and having been impressed by her demeanour in the witness box and her willingness to concede matters were she might have been mistaken, the Tribunal was not satisfied that the onus had been discharged. The line is a fine one but we do not believe that the complainant managed to cross it. 15 The Tribunal dismisses the complaint but in doing so wishes it to be noted how important it is when dealing with persons under a disability that a party's actions are fully comprehended. It is almost trite to note that when people say words to the effect that "I do not do something with regard to your disability" it is invariably thought that the complete opposite is true. This can lead to perceptions of discrimination that in particular cases are totally unjustified but may result in proceedings such as these being taken quite legitimately. This Tribunal has no reason whatsoever to doubt the motives of Mr Heystraten and the fact that the proceedings have not been successful will not reflect in any way to his detriment or that of those persons who have been so supportive to him.