FEDERAL COURT OF AUSTRALIA

QBE Travel Insurance v Bassanelli [2004] FCA 396

DISCRIMINATION LAW – ss 5 and 24 of the Disability Discrimination Act 1992 (Cth) (DD Act) contravened by insurance company by declining to issue any policy of travel insurance to an individual with metastatic breast cancer, on the basis of that cancer, for a short overseas holiday – insurance company sought to rely upon exemption in s 46 of DD Act which would make lawful any breach of ss 5 and 24 of DD Act – construction of s 46(1) of DD Act – consideration of inter-action of s 46(1)(f) and s 46(1)(g) of DD Act – where onus of proof lies in establishing the exemption in s 46 of DD Act – whether travel insurance policies offered by other insurance companies are relevant factors in deciding under s 46(1) of DD Act reasonableness of the insurance company’s discrimination – whether discrimination reasonable having regard to relevant factors

Disability Discrimination Act 1992 (Cth) ss 5, 24, 46

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PH(1)(a)

Explanatory Memorandum to the Disability Discrimination Bill 1992 (Cth)

Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 applied

Vines v Djordjevitch (1955) 91 CLR 512 applied

Waters v Public Transport Commission (1991) 173 CLR 349 applied

Clarke v Catholic Education Office [2003] FCA 1085 applied

Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 applied

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 applied

Secretary, Department of Foreign Affairs v Styles (1989) 88 ALR 621 applied

Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 applied

Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 cited

Pettit v Dunkley [1971] 1 NSWLR 376 applied

Gamser v Nominal Defendant (1977) 136 CLR 145 applied

Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264 applied

QBE TRAVEL INSURANCE v DENICE BASSANELLI

S 806 of 2003

MANSFIELD J

7 APRIL 2004

ADELAIDE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a Federal Magistrate given on 26 September 2003.  The learned Magistrate declared that the appellant had unlawfully discriminated against the respondent, contrary to ss 5 and 24 of the Disability Discrimination Act 1992 (Cth) (the DD Act) by declining to issue to her a policy of travel insurance on 19 July 2002.  The appellant was ordered to pay to the respondent damages of $5000 and interest, and to pay the respondent’s costs.

2                     On the appeal, People with Disability Australia Incorporated (the intervenor) was given leave to appear, limited to making submissions as to the proper construction of the relevant provisions of the DD Act.  The intervenor’s submissions were not on all fours with those of either party.

the facts

3                     There is now no issue about many of the relevant facts.

4                     The respondent was born on 3 August 1965.  In May 1997, she was diagnosed with early breast cancer.  In December 2000, she was diagnosed with metastatic breast cancer.  For that condition, she was at the material time being treated with four-weekly biophosphonate infusions as a day care patient, and was taking a series of prescribed medications.

5                     In about July 2002, the respondent won a competition to travel to Japan.  She arranged to travel to Japan between 26 and 31 July 2002.  On 19 July 2002, through her travel agent, she applied to the appellant for travel insurance for the trip.  She completed an application form for the travel insurance for submission to the appellant.  She disclosed the information about her medical condition and treatment as set out in [4] above.  She did not expect to obtain travel insurance in respect of any events related to or arising from her disclosed medical condition.  Although the form she completed is headed ‘Preliminary Medical Appraisal Form’, and includes a section to be completed by a doctor, that section was not completed.  The respondent was not asked to procure its completion.

6                     The form was then sent by the travel agent to the appellant.  It was marked by the travel agent ‘Urgent reply pls’.  It was considered by the officers of the appellant.  On the same day, 19 July 2002, the respondent, through her travel agent, was notified of the appellant’s decision in the following terms:

‘Unfortunately NO POLICY whatsoever may be issued on our behalf.

Consideration has been given to many factors including the medical condition(s), length of the trip, destination and age.

Should you have any questions please contact the Medical Appraisal Department on the above telephone number.’ 

The respondent did not then contact the appellant.  Through her travel agent, she procured alternative travel insurance satisfactory to her.  She completed her travel to Japan.

7                     Subsequently, on 2 September 2002, the respondent made a complaint to the Human Rights and Equal Opportunity Commission (HREOC) that the appellant had unlawfully discriminated against her, contrary to ss 5 and 24 of the DD Act by refusing to grant her any travel insurance in respect of her then proposed trip to Japan.  On 26 March 2003, HREOC, after conducting an investigation into the complaint, terminated the complaint under s 46PH(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act).  The delegate of the President of HREOC was satisfied that the alleged unlawful discrimination was not unlawful discrimination.  Reasons for that decision were given.

8                     On 10 April 2003, the respondent applied to the Federal Magistrates Court under s 46PO of the HREOC Act to challenge that decision.  The present appeal is from the decision of the learned magistrate in substance reversing the decision of the delegate of the President of HREOC.

the legislation

9                     The learned Magistrate found that the respondent, by reason of her condition of metastatic cancer, had a disability as defined in s 4 of the DD Act.  He also found that the refusal of the appellant to grant the respondent any form of travel insurance was, in the circumstances, discrimination against her on the ground of her disability contrary to s 5 of the DD Act.  By reason of her disability, the appellant had treated the respondent less favourably than, in circumstances that are the same or not materially different, it would have treated a person without the disability. 

10                  Section 24(1) of the DD Act renders it unlawful for a person who provides services to discriminate against another person on the ground of the other person’s disability by refusing to provide the other person with those services.

11                  Section 24(2) of the Act provides:

‘This section does not render it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.’

12                  Before the learned Magistrate, the appellant sought to invoke the protection of s 24(2).  It was unsuccessful.  His Honour was satisfied that providing travel insurance to the respondent (excluding claims related to her pre-existing medical condition) would not have required the appellant to provide a service in a situation of unjustifiable hardship.

13                  The conclusions of the learned Magistrate on those matters were not the subject of attack on the appeal.

14                  Division 5 of Pt 2 of the DD Act contains the provision upon which the present appeal turns.  Part 2 contains the provisions prohibiting disability discrimination.  Division 5 contains exemptions so that, if a person comes within a specified exemption, the conduct to which the exemption refers is not unlawful under Pt 2.  Relevantly, section 46(1) of the DD Act provides:

‘(1)      This part does not render it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, by refusing to offer the other person:

…

(c)               a policy of insurance against accident or any other policy of insurance; or

…

if

(f)                 the discrimination

(i)                 is based upon actuarial or statistical data on which it is reasonable for the first-mentioned person to rely; and

(ii)               is reasonable having regard to the matter of the data and other relevant factors; or

(g)               in a case where no such actuarial or statistical data is available and cannot reasonably be obtained – the discrimination is reasonable having regard to any other relevant factors.’ 

15                  Section 46(2) applies where, instead of a refusal, there is discrimination in the terms or conditions which are offered.  It is otherwise in the same terms as s 46(1).

the magistrate’s reasons

16                  The learned Magistrate was asked to, and did, address whether s 46(1) applied by reference to the circumstances prescribed in s 46(1)(g).  He was not asked to address whether the circumstances prescribed in s 46(1)(f) applied.  That is, his Honour considered whether the disability discrimination he had found to have occurred by the appellant refusing to offer to the respondent a policy of travel insurance excluding claims related to her pre-existing condition was ‘reasonable having regard to any other relevant factors’.

17                  For reasons which appear in [28] – [35] below, I do not consider that the approach his Honour was asked to take is the correct one.  But that is the way the case was conducted at first instance and (apart from the submission of the intervenor) on appeal.  I shall therefore consider the appeal as if no relevant actuarial or statistical data was available or could reasonably have been obtained upon which the appellant’s decision whether to issue a policy of travel insurance could have been based.

18                  The learned Magistrate, under s 46(1)(g), had to take into account ‘any other relevant factors’.  He identified the task as follows:

‘The first point I would make is that the fact that one insurer may provide cover for a particular risk does not mean that it is unreasonable for another insurer to decline it.  The court must first look, objectively, at the reasons put forward by the insurer for declining the risk and consider the evidence brought to justify that decision.  The reasonableness or otherwise of that evidence can be tested against the conduct of other insurers who are offered the same risk.’ 

He identified the appellant’s reasons for declining to issue any policy of travel insurance as being ‘the problems surrounding claims causation issues’.  He accepted the evidence that decisions whether to agree to indemnify under a policy of travel insurance often have to be made speedily, and on the basis of scanty information provided by telephone from a hospital in a foreign country.  He also accepted that there are cases where it is difficult to decide even on the best evidence if a claim is causally related to a pre-existing condition.

19                  Those general considerations were not of themselves sufficient for the appellant to come within s 46(1).  The Magistrate said of such considerations:

‘But it seems to me that this is what insurers do.  Insurers essentially take a bet upon whether a particular set of circumstances will or will not occur.  In order to calculate the amount of the premium they assess actuarially their previous claims history, which will include cases where very large claims have been paid because of the acceptance of risk under the type of circumstances outlined which may not otherwise have been accepted.  The cost of these mistakes is then built into the policy costs of the very large number of people who take out travel insurance policies with the respondent.  I say “large number” because we know that 30,000 + people make claims a year.’

That did not lead the Magistrate to conclude that an insurer must always issue a policy of travel insurance when such considerations are more real by reason of a pre-existing medical condition  He accepted insurers may, and do, exclude insurance in respect of pre-existing medical conditions.  He accepted that insurers may, and do, sometimes seek further information to enable them to better assess the risks associated with granting a particular policy of travel insurance, or may in particular circumstances reasonably decline to grant a policy of travel insurance or may reasonably impose a special premium upon the grant of a policy of travel insurance.

20                  However, as he observed, the appellant in this matter had declined to grant any policy at all because of the respondent’s pre-existing condition of metastatic breast cancer.  He asked whether it was reasonable for it to have adopted that general attitude.  He did not accept that the fact of the travel destination being Japan was of much influence upon the appellant’s decision, but found it was in reality the medical condition itself which led to the decision.

21                  The learned Magistrate said that the appellant bore the onus of establishing the reasonableness of its conduct.  He found that the appellant’s refusal to issue any policy of travel insurance to the respondent was unreasonable.  He considered first its reasons for not issuing a policy which excluded all medical events.  He correctly identified the appellant’s reasons as being that such a policy would be uneconomical and was not a standard policy.  But, he noted, the appellant had in the past issued such policies, and at the time of the hearing had such a policy available.  The risk of property damage loss was no greater by reason of the respondent’s pre-existing medical condition.

22                  His Honour then considered the appellant’s reasons for not issuing a policy which covered medical events excluding those related to the respondent’s pre-existing medical condition.  He said:

‘… the matters which I have taken into consideration in coming to this conclusion are the nature of insurance contracts generally, the history of catastrophic and problem claims provided by the respondents, the whole of the medical evidence which indicated that many of the problems likely to be experienced by someone in the applicant’s position could be easily traced back to her pre-existing condition even if some may have given cause for concern and the actions of other insurers in the market in issuing policies to the applicant.  I also took into account the fact that the trip was only for six days and that the application for a policy was made only a few days prior to the applicant travelling.  I noted that the insurer did not make any attempt to obtain further medical information and that its main witness made it clear that any information that she did obtain would just reinforce her decision.  I am of the view that the balancing of these factors weighs in favour of the applicant.  It cannot pass the appropriate test of reasonableness being to my mind a decision of convenience only.’ 

23                  The respondent was awarded damages of $5000 for the distress which the appellant’s conduct in contravention of the DD Act had caused her.  Her evidence as to the distress she experienced was accepted.

the grounds of appeal

24                  The notice of appeal contains eight grounds.  One complains of the qualification of the damages, and the inadequacy of the reasons for assessing the damages.  The others are either merely assertive (e.g., that the conclusion that s 46(1)(g) did not apply was erroneous) or complain about the weight given to certain of the evidence.  Collectively, they indicate the appellant’s real complaint is that the learned Magistrate simply reached a conclusion about the applicability of s 46(1)(g) in the circumstances which he ought not to have reached.

25                  At the hearing, senior counsel for the appellant refined the grounds of appeal to some degree.  He contended the Magistrate had erred:

1.                  by imposing upon the appellant the legal, as distinct from an evidentiary, onus of showing its discriminatory conduct was reasonable;

2.                  by having regard to the fact that some other insurers have provided to the respondent policies of travel insurance excluding claims related to her pre-existing medical condition;

3.                  by having regard to the fact that, at the time of the hearing, the appellant issued a policy of travel insurance excluding all medical events;

4.                  by forming his own view on the evidence as to the reasonableness of the discrimination, rather than considering whether on the material before the appellant and as understood by the appellant, it could reasonably have made the decision complained of, or alternatively by forming his own view on the evidence as to the reasonableness of the discrimination, rather than considering whether on the material before the appellant judged objectively, it could reasonably have made the decision complained of; and

5.                  by failing to address properly the particular circumstances (in essence, an attack upon the decision simply because it ought not to have been made).

In addition, the attack upon the amount of damages awarded, and the inadequacy of the reasons for decision about damages, was maintained.

THE construction OF S 46(1) OF THE DD ACT

26                  Senior counsel for the appellant and the respondent agreed that the case had been conducted at first instance upon the basis that s 46(1)(f) and s 46(1)(g) provided alternative ways by which an insurer might fall within the exemption for which s 46 provides, and upon the basis that it was appropriate to address only the alternative provided for in s 46(1)(g).

27                  The learned Magistrate noted that, in this matter, statistical data had not been provided, so he had to consider all relevant circumstances.  That was how he was asked to proceed by the parties.  He recorded that the appellant ‘concedes’ that there was no actuarial or statistical data relied upon or available when it made its decision.  There was no agreement, in terms of the introductory words to s 46(1)(g), that ‘no actuarial or statistical data is available and cannot reasonably be obtained’ on which it is reasonable for the appellant to have relied.

28                  Section 46(1) provides that certain disability discrimination is not unlawful if two elements exist.  The first is that the discrimination involves certain conduct:  the refusal to offer one of five specified superannuation or insurance services.  The second relates to the quality of the conduct which would otherwise constitute unlawful discrimination.  The quality of the conduct must fall within one of the two alternatives in subs 46(1)(f) or subs 46(1)(g).  They are not simply alternatives.  The introductory words of subs 46(1)(g) make it clear that the exemption under s 46 is available in the circumstances provided for in s 46(1)(g) only where ‘no such actuarial or statistical data is available and cannot reasonably be obtained’.  The precondition to the availability of the alternative in subs 46(1)(g) to provide the exemption, by use of the word ‘such’, clearly refers to the circumstances to which s 46(1)(f) refers.

29                  Section 46(1)(f) requires that:

(1)               the discrimination is based upon actuarial or statistical data and is information which it is reasonable for the discriminator to rely on, and

(2)               the discrimination is reasonable having regard to the data and ‘to other relevant factors’.

30                  The first of those elements focuses upon the decision-making of the discriminator.  The use of the expression ‘is based’ and the reference to reliance must mean that the discriminator actually based its decision upon certain actuarial or statistical data.  Then the inquiry directs attention to the reasonableness of the discriminator in having relied upon the data.  It involves an objective judgment about the nature and quality of the actuarial or statistical data relied on.  The actuary or statistician (or the data itself) may indicate that for whatever reason it would not be reasonable to rely upon it.  It may be qualified, or be an insufficient sample for reliable use, or not be directly applicable to the particular decision.  There may be other reasons why, on its face, it would not be reasonable to rely upon it.  There may be actuarial or statistical data upon which it may be unreasonable to rely for other reasons external to the data being relied upon.  The data may be incomplete, or out-of-date, or discredited, and the decision-maker ought, in the circumstances, to have known that.

31                  Once the haven of s 46(1)(f)(i) is reached, to be eligible for protection under s 46(1)(f), it is also necessary for the discrimination to have been reasonable having regard to the data and to other relevant factors.  That clearly also involves an objective judgment.  It is a judgment to be made objectively with the knowledge and in the circumstances of the discriminator, but including factors of which the discriminator ought to have been aware.  Section 46(1)(f)(ii) refers to the reasonableness of the discrimination whereas s 46(1)(f)(i) refers to the discrimination being based upon data having a certain quality.

32                  The exemption under s 46(1)(g) is available only when ‘no such actuarial or statistical data is available and cannot reasonably be obtained’.  As noted above, the use of the word ‘such’ in my view refers to data to which s 46(1)(f)(i) refers.

33                  I consider that, on its proper construction, the exemption for which s 46(1)(g) provides is only available if there is no actuarial or statistical data available to, or reasonably obtainable by, the discriminator upon which the discriminator may reasonably form a judgment about whether to engage in the discriminatory conduct.  If such data is available, then the exemption provided by s 46(1)(g) cannot be availed of.  The decision made upon the basis of such data must run the gauntlet of s 46(1)(f)(ii), that is the discriminatory decision must be reasonable having regard to the matter of the data and other relevant factors.  If the data (and other relevant factors) do not expose the discriminatory decision as reasonable, then there is no room for the insurer to move to s 46(1)(g) and thereby to ignore such data.  If such data were not available to the insurer but were reasonably obtainable, so that its discriminatory decision might have been measured through the prism of s 46(1)(f), again there would be no room for the insurer to invoke the exemption under s 46(1)(g).

34                  Hence, if the exemption pathway provided by s 46(1)(f) ought to have been followed by the insurer, whatever the outcome of its application, the exemption pathway provided by s 46(1)(g) would not also be available.  It is only if there is no actuarial or statistical data available to, or reasonably obtainable by, the insurer upon which it is reasonable for the insurer to rely, that s 46(1)(g) becomes available.  The legislative intention is that the reasonableness of the discriminatory conduct be determined by reference to such data, if available or reasonably obtainable, and other relevant factors.  That conclusion is consistent with the Explanatory Memorandum to the Disability Discrimination Bill 1992 (Cth) concerning the superannuation and insurance exemption.

35                  Hence, in my view (and as contended by the intervenor), as the criteria for the availability of s 46(1)(g) were not shown to exist (except perhaps by acquiescence of the respondent in the assertion by the appellant), strictly speaking the focus should first have been upon s 46(1)(f) and only if no reliable data was available or reasonably obtainable could s 46(1)(g) have been invoked.  I note that one of the appellant’s witnesses Professor Fox, a well experienced specialist oncologist referred to statistics being obtainable on the analysis of the outcome of thousands of Australian women with metastatic breast cancer going back until the late 1970s.  Whether that material would fall within the sort of data to which s 46(1)(f) refers is not presently for me to determine.

36                  Nevertheless, the parties conducted the application at first instance as if the exemption pathway provided under s 46(1)(g) of the DD Act were available to the appellant.  I think the respondent is bound by that conduct.  Had the point been taken that s 46(1)(g) was not available, the appellant may have conducted the proceeding differently.  My reasons for decision hereafter assume that the qualifying threshold for access to s 46(1)(g) has been met.  It was assumed by the parties that the anecdotal evidence of a broadly statistical nature, and the opinions of medical specialists including Professor Fox based in part upon statistical studies, was material to which the learned Magistrate could have regard when considering whether the exemption under s 46(1)(g) was enlivened.  I shall also proceed on that basis.

the appeal issues

(1)        Onus of proof

37                  In my judgment, the learned Magistrate correctly identified the existence of an onus of proof upon an insurer to qualify for the exemption under s 46 of the DD Act once it has been shown that an insurer has engaged in discrimination in contravention of ss 5 and 24 of the DD Act.

38                  In a matter such as the present, once the issue is raised as to whether an insurer comes within the exemption provided by s 46, the question of where lies the burden of proof of the facts which enliven the exemption turns upon the construction of the particular enactment:  see Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 601 per Brennan, Dawson and Gaudron JJ, and at 611 per Toohey and McHugh JJ.  Toohey and McHugh JJ at 611 said:

‘When a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso turns on whether it is part of the total statement of the obligation.  If it is, the onus in respect of the qualification, exception or proviso is on the party asserting a breach of the obligation.  If it is not, the party relying on the qualification, exception or proviso must prove that he or she has complied with its terms.’ 

39                  Clearly enough, proof of the contravention of ss 5 and 24 of the DD Act in this matter lay upon the respondent.  She was the one who sought to establish the grounds upon which she claimed to be entitled to relief from the appellant.  The structure of Pt 2 however makes it plain, in my view, that the exemptions in Div 5 do not impose conditions upon the establishment of a contravention of s 24 (or the provisions in Divs 1, 2 and 3 of Pt 2) of the DD Act:  cf Vines v Djordjevitch (1955) 91 CLR 512.  If that were so, one would expect the exemptions to be more closely tied in context to a particular provision or provisions establishing discrimination under the Act.  The appellant’s argument, if correct, would mean also that a person who has established discrimination in apparent contravention of s 24 (or of one of the other provisions in Divs 1, 2 or 3 of Pt 2) would also have to establish the non-applicability of the exemption in s 46 and each of the exemptions in Div 5 of Pt 2 available under ss 45 to 54.  The terms of s 46 and its place in Div 5 dealing with exemptions indicates that it provides for an excuse or ground of exclusion which assumes the existence of the grounds upon which liability for discrimination exists.  It provides for the avoidance of that liability if additional or special facts are proven.  They are facts which are likely to be within the special knowledge of the insurer.  The reasons for the insurer’s discriminatory conduct are the focus of its attention.  Consequently, there are sound reasons for placing the burden of proof on the insurer seeking to rely upon the additional or special facts:  see per Dixon CJ, McTiernan, Webb, Fullager and Kitto JJ in Vines v Djordjevitch at 519.  See also Waters v Public Transport Commission (1991) 173 CLR 349 (Waters); Clarke v Catholic Education Office [2003] FCA 1085 at [51] per Madgwick J.

(2)        Other travel insurance policies

40                  The learned Magistrate was presented with extensive evidence about travel insurance policies offered by other insurers to persons with pre-existing conditions.  The appellant made submissions about the weight that should be given to such evidence.

41                  The Magistrate regarded the evidence as of little weight except for those policies of travel insurance which the respondent had actually purchased.  Accordingly, he considered the fact of the issue of those particular policies as a relevant factor for the purposes of s 46(1)(g).  The policies to which he gave weight included that issued by another reputable insurer to the respondent for her trip to Japan at the end of July 2002, which excluded claims arising out of her existing medical condition, as well as the travel insurance policy obtained, which again excluded claims arising out of her existing medical condition, for her trip to Japan between 11 and 23 April 2003.

42                  In my judgment, the learned Magistrate could regard that material as relevant.  He was careful to identify any terms of such policies which might have been of significance in the weight to be attributed to that evidence.  He was also careful to ensure that the weight given to that evidence was determined having regard to the information provided to those insurers.  He referred specifically to what the appellant’s witness Ms Thompson said about the policy which was issued to the respondent in respect of her trip to Japan in late July 2002.

43                  The reasonableness of the discrimination is a matter to be judged having regard to any other relevant factors.  The appellant sought to justify the discrimination by reference to the respondent’s medical condition and treatment and the fact she was travelling to Japan.  The reasons did not claim some special knowledge on the part of the appellant, or some factors peculiar to it.  They were reasons one would expect to be matters reputable insurers in competition with the appellant would also have regard to.  Consequently, in my judgment, the fact that another reputable insurer with apparently the same or similar knowledge was prepared to issue a policy of travel insurance excluding claims relating to the pre-existing medical condition for the same travel was a matter which the Magistrate was entitled to consider as relevant.  What weight was given to that evidence then was for the Magistrate to decide.  If, for example, all but one insurer with the same knowledge base and the same information were prepared to issue a policy of insurance in substantially the same terms, in the absence of some material peculiar to the particular insurer’s circumstances, that evidence could clearly be relevant to the question s 46(1)(g) raises.

44                  In this context, it is important to note that the Magistrate put such evidence in an appropriate context.  See his Honour’s remarks recorded at [18] above.

(3)        The appellant’s property loss policy

45                  The learned Magistrate found the appellant’s discrimination was not reasonable on two scenarios.  One arose from its failure to have issued a property loss and damage policy only, excluding all medical events.  The other arose from its failure to have issued a policy which excluded only claims arising from or related to the respondent’s pre-existing medical condition.  It is the former of those scenarios to which this ground of appeal refers.

46                  The argument, even if accepted, would not result in the appeal being successful.  The Magistrate’s reasons for the second of those scenarios, set out in his summary in the passage quoted at [22] above, would still stand.  In substance, it was the second of those two scenarios which was the principal focus of the appeal.

47                  The argument is simply that it was wrong to have regard to the fact that the appellant, in September 2003, had available a property loss and damage policy only.  It was submitted that fact was not relevant in considering whether it was unreasonable for the appellant to have refused to issue any policy at all.  In reaching that view, the Magistrate first had regard to the fact that the appellant had in the past issued such policies (that is prior to July 2002).  That finding was in response to the appellant’s contention that it was reasonable to have issued no such policy because it would be uneconomical and because it was not a standard form policy.  That the appellant, within a year or so, had such a standard form policy available is also evidence which, in my judgment, the Magistrate was entitled to consider.  It has long been regarded as permissible to prove that conduct engaged in after an industrial accident may be adduced to show that, at the time of the accident, steps were available which could have avoided the accident:  see Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201.  Such evidence does not prove that at the time of the accident it was unreasonable, and therefore negligent, not to have taken those steps earlier.  In the absence of evidence from the employer explaining why the precautionary steps were not taken earlier, it is material which can be relevant to such an issue:  see e.g. Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18.

48                  The learned Magistrate adopted that process of reasoning.  I do not think he was in error to have done so.  In my judgment the Magistrate did not fall into error in his reasoning or in his conclusion concerning the first scenario.  (It was not argued on the appeal that the appellant had not discriminated at all against the respondent by refusing to issue her with a policy of property loss and damage only because it would not have issued such a policy to a person without a disability).

(4)        The correct question?

49                  This ground of appeal focuses upon the concept of reasonableness in s 46(1)(g).

50                  The appellant’s first contention is that the reasonableness of the discrimination is to be judged only upon the material known to the insurer, assuming that material to be correct.  I do not accept that contention.

51                  In Secretary, Department of Foreign Affairs v Styles (1989) 88 ALR 621 (Styles), Bowen CJ and Gummow J at 634 said:

‘…the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. … The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other.  All the circumstances of the case must be taken into account.’

52                  The written submissions of the appellant adopted that passage of the majority judgment as applicable to the concept of reasonableness under s 46(1)(g) of the DD Act.  The passage was quoted with approval by Dawson and Toohey JJ in Waters at 395-396.  In Waters, Brennan, Deane, Dawson, Toohey and McHugh JJ (Mason CJ and Gaudron J dissenting on the particular point only, but not in the result) concluded that reasonableness for the purposes of the provisions of the Equal Opportunity Act 1984 (Vic) is a question of fact to be decided by weighing up all the relevant factors.

53                  It is the discrimination which must be shown to be reasonable.  The decision as to reasonableness is made having regard to ‘any other relevant factors’.  Relevance also involves an objective measure.  Section 55 of the Evidence Act 1995 (Cth)usefully describes relevant evidence as evidence that, if accepted, could rationally affect the assessment of the probability of the existence of a fact in issue.  Any matter which is rationally capable of bearing upon whether the discrimination is reasonable would fall within the umbrella of relevance.

54                  Consequently, in my view, the words of s 46(1)(g) themselves demonstrate that the appellant’s contentions should be rejected.  It is not for the insurer to determine what material should be used for the purpose of determining the reasonableness of the discrimination.  It is also not for the insurer to impose upon a judgment of objective fact its understanding of the material before the insurer for the purpose of determining the reasonableness of the discrimination.  Clearly the reasons advanced by an insurer in support of its discriminatory conduct will be considered carefully, and the material upon which the reasons are based will be given due weight.  But determination of the reasonableness of the discrimination as a matter of fact should be determined in the light of all relevant matters, and should be determined objectively upon that material.

(5)        Was the discrimination reasonable?

55                  The learned Magistrate identified the factors he took into account in the passage set out in [22] above.  It is not contended that he should not have taken those matters into account, or that he failed to take into account matters which he should have taken into account.  The attack is really upon the finding of fact that the discrimination was not reasonable having regard to relevant matters.

56                  His Honour also correctly identified the appellant’s reasons for having declined to issue any policy of travel insurance, excluding claims arising from or related to her pre-existing condition.  They were that it is sometimes difficult to determine whether the claim is causally related to the pre-existing condition, that decisions whether to accept a claim must often be made hurriedly and on limited information provided by telephone, and that difficulties in communication to countries such as Japan make the prospect of making a correct decision even more difficult.

57                  He noted that the appellant did have the capacity to issue a policy which excluded pre-existing conditions, or which may have been issued at a special additional premium.  The appellant did not explore those options.  It refused to grant any policy to the respondent by reason of her pre-existing condition.  It is the discrimination which is reflected in that decision which is to be reasonable having regard to any relevant factors.

58                  The appellant adduced evidence about ‘claims causation risks’ and anecdotal evidence of catastrophic large claims.  It also adduced evidence about the progressive incidents of metastatic cancer.  The Magistrate accepted all that evidence.

59                  The evidence of the appellant (as identified in the written submission referring to evidence) included evidence from Michael John Garrard, Shirley Ann Thompson, Professor Fox and Dr Charles Corke.  Mr Garrard is the former deputy manager of the appellant.  He did not play a role in its decision to refuse the respondent travel insurance.  His affidavit is more by way of argument, asserting the reasonableness of the appellant’s discriminatory conduct.  It is largely based upon information provided to him by Ms Thompson and by Dr Corke.  He described the difficulty confronting the appellant as that it:

‘would be impossible to prove that any complication is as a result of the disease process and that no other person could have suffered this outcome if they did not have the underlying condition.’

60                  He confirmed, as the Magistrate found, that the destination was very much a secondary consideration.  He said the respondent’s medical condition meant she would not have been treated by the appellant as an acceptable risk for any form of overseas travel insurance.

61                  Mr Garrard’s evidence provided some anecdotal statistical evidence.  He said the appellant issued numerous policies of travel insurance each year.  He did not say how many policies were issued in which some form of pre-existing medical condition was excluded.  There were about 30,000 to 35,000 claims on issued policies each year.  Over a period of 20 years, he had seen only about 50 claims in which there had arisen the difficulty of deciding whether there was some causal link between the condition that was the subject of the claim and the reported pre-existing medical condition.  As a matter of arithmetic (assuming the number of claims each year over the 20 year period was 30,000), that would mean that the difficult claims represent about 0.008% of all claims.  No information was given about the number of policies issued, but it would be very many more than the number of claims.  He did not explain whether all, or any, of the 50 difficult claims concerned a claimant with a pre-existing condition similar to the respondent’s medical condition, or whether they had arisen when there was in place some policy or protocol or guideline specifically to consider proposals for travel insurance where a particular pre-existing medical condition had been tabbed as potentially of significance.

62                  In fact, the decision not to offer any travel insurance to the respondent was made by Ms Thompson based upon her knowledge and experience.  The appellant did not have a formulated policy either to refuse any travel insurance in respect of persons suffering from a pre-existing condition such as that of the respondent, although it may have had such a policy in respect of other pre-existing medical conditions.  Nor did it have a formulated protocol to require particular medical information and an individual assessment (including perhaps a premium loading) before making a decision whether to issue a policy of travel insurance in the case of persons with the respondent’s particular pre-existing medical condition.

63                  Ms Thompson is an experienced nurse.  She prepared for the appellant ‘medical appraisal department guidelines’ for consideration of applications for travel insurance.  They are periodically updated.  The guidelines include a list of ‘challenging conditions’.  The ‘challenging conditions’ at the time (and still) include the following:

‘Conditions that are even more challenging and should be considered for “NO POLICY” are as follows:

Terminal cancer – prohibited to cover under policy

Metastatic cancer.’

64                  She had regard to the respondent having been diagnosed with breast cancer in May 1997 and with metastatic breast cancer in December 2002.  She had regard to the fact that the treatment included biophosphonates, indicating bony metastases and so the possibility of fractures or compression of the spinal chord ‘if that is where the metastases were located’.  She considered the condition gave rise to ‘possible medical complications such as increased risk of infections and blood clotting disorders’, and it suppressed the immune system so there was a real risk of infection.  She regarded it as ‘almost impossible’ to decide with any certainty whether certain medical conditions are associated with a pre-existing condition, due to the large number of possible medical complications suffered by a person with metastatic cancer.

65                  She concluded:

‘In my opinion, and from the cases I have been involved in, whatever medical event befell the applicant, be it accidental injury or illness, it would be more complicated, the prognosis poorer and the medical event may have precipitated the final stages of her underlying disease.  On site medical care and any repatriation costs would be higher than for any client without similar underlying disease.  This made it too great a risk for QBE to agree to offer the Applicant a policy.’

66                  She gave evidence of two cases, involving ‘cancer’ where in one instance pneumonia and in the other a stroke led to expensive claims because the pre-existing medical condition was either the real cause or a significant aggravating cause of the severity of the condition, but the insurer nevertheless accepted the full claim.

67                  Dr Corke, the consulting doctor to the appellant, was asked only in October 2002 to advise the appellant about the influence of ‘metastatic cancer’ upon general susceptibility of a patient to other illness and injury.  His report is as follows:

‘With reference to the influence which metastatic cancer might have on the general susceptibility of a patient to other illnesses and injuries I would submit the following observations:

Cancer, particularly metastatic cancer, is well recognised to significantly predispose to deep venous thrombosis and thromboembolism.  These conditions are also associated with long distance travel.

Cancer is associated with depression of the immune system which predisposes to infectious disease and results in a more severe course when infection occurs.

Any accidental traumatic injury occurring in a patient with metastatic cancer would be expected to be more complicated (as healing is delayed in these patients).

Where the disease involved bone then the chance of fracture, even from a minor injury, would be more likely.

Unfortunately patients with metastatic cancer are at substantially more risk of developing other illnesses not directly due to the cancer and are likely to have a more prolonged period of recovery from illness and injuries they sustain.’

Dr Corke is on occasion asked by the appellant to adjudicate in cases where a person with an underlying medical condition is involved in an accident or develops another condition to ‘dissect’ what is causing the current complaint.  He professes the medical experience enabling him to do so.  Even accepting, as he says, that it is often very difficult to determine whether an underlying condition has caused or contributed to the illness suffered whilst travelling, or has made recovery more prolonged, the appellant clearly has qualified medical resources to enable such judgments to be made.  For example, given the second paragraph of his report, one could understand a decision to refuse to indemnify in respect of deep venous thrombosis suffered whilst travelling.

68                  Professor Fox provided reports to the appellant only during 2003.  They are dated 25 February 2003 and 25 July 2003.  His views were not the foundation or part of the foundation for the appellant’s discriminatory conduct.  They may provide evidence to support the correctness of Ms Thompson’s understanding of the significance of the respondent’s pre-existing condition.

69                  The first report of Professor Fox dealt with ‘the issues of recurrence of metastatic cancer and whether or not recurrence can be predicted’ in certain individuals.  There is a significant incidence of cancer in Australia.  In the case of metastatic (i.e. spread) breast cancer, there is generally a period of about six months from commencing hormonal treatment to relapse or progressive disease.  Relapse then may be, but need not be, acute and may require hospitalisation and evacuation to Australia.  Professor Fox described eight relapse emergencies.  There is nothing to indicate in his report that, in the event of one of those relapse emergencies occurring, there is particular difficulty in identifying the condition as related to the pre-existing condition.  He also referred to the risk of venous thrombosis or pulmonary embolism, which he describes as syndromes of metastatic cancer.  Again, there is no particular difficulty identified in ascribing the onset of such an illness to the pre-existing condition, if it be the case.

70                  Professor Fox also described ‘prognostic factors’ which indicate individuals with a greater or lesser risk of developing tumour recurrence and its complications.  The mobility of the respondent put her in the lower risk category.  He noted however that there is a significant potential for such persons to deteriorate over a period two to three months.  That is not suggested to be a real concern in the respondent’s circumstances.  She planned to travel to Japan within a few days, and for a short time.  If she were in clinical remission (as she was), she was not especially vulnerable to recurrence in that time frame.  Professor Fox also identified the sites of metastatic disease as a prognostic determinant.  There is no evidence that the appellant could not have sought, and learned of, those sites through the respondent’s medical advisers.

71                  Accordingly, his first report of 25 February 2003 does not really much advance any claim by the appellant that its discriminatory conduct was reasonable.  It dealt with the risks of recurrence of metastatic cancer and whether recurrence can be predicted in certain individuals.  It described how recurrence might appear.  As the respondent expected any illness arising from or related to her pre-existing condition to be excluded, any recurrence in the way he described (even if, on his analysis, quite unlikely to occur during her trip to Japan) would not be covered by the proposed policy.

72                  The subsequent report of Professor Fox of 29 July 2003 was provided upon the basis of information partly available to the appellant at the time of its decision, and partly on information from the respondent’s treating doctors which (presumably) the appellant could have procured at short notice had it been sought.  As a result of that information, Professor Fox identified several of the eight relapse emergencies which might have applied to the respondent.  He confirmed, based upon the reports from the respondent’s doctor, that she was young and active, and at the lowest end of the scale of vulnerability to recurrences.

73                  In response to the question about the diagnostic problems which might arise in ‘attempting to isolate the pre-existing condition’ should the respondent suffer some other accidental injury whilst travelling, Professor Fox said:

‘It can be difficult to sort out various medical events as subsequently related or not related to her metastatic cancer.  Clearly should she fracture her femur at the site of the bone metastasis that would be obvious.  Sometimes with cerebral events that can be difficult to determine whether there is another underlying cause, and similarly with intercurrent illnesses, e.g. infections in lungs or urinary tract, etc.’

74                  On the other hand, accidental injury at an identified metastatic site would ‘almost certainly’ be due to the pre-existing condition.  He indicated that a fracture at another site (presumably without serious external trauma) may be due to a general thinning of the bones as a result of malignancy, and the cause ‘could be difficult to determine’.  He also said it would be difficult to ‘sort out’ the management of an unrelated medical condition as her underlying disease may pre-dispose her to a number of different events such as venous thrombosis and a greater propensity for infection.

75                  In his oral evidence, Professor Fox explained that sometimes it may be hard to determine whether a disease or illness is caused by the pre-existing condition.  He gave the example of a stroke, which may be due (for example) to high blood pressure or to tumour metastases.

76                  Professor Fox told the learned Magistrate that it would not be too difficult to say whether a recognised common danger of metastatic cancer was related to that condition.  He referred to the examples of deep vein thrombosis, or a fracture at a lesion site or from generally weakened bones.  He also said that in the event of treatment for a totally unrelated event, if problems occurred then because of metastasis, generally the treating doctor would be able to recognise that.  He did, however, refer to ‘grey areas’, although ‘a lot of the major matters’ could be recognised and explained to the proposed insured in advance.

77                  He also said:

‘The risks are related to the cancer, but then – yes, sure.  It’s just that these events, medical events, either due to the cancer or due to the treatments are sometimes difficult to dissect out, generally often difficult to dissect out.  It’s a common problem but you’re right.  The risk of anything happening in six days is quite low, just simply on a time basis.’ 

78                  Earlier cases on the meaning of reasonableness under discrimination legislation have focussed on whether discrimination has been made out.  The expression has been given its ordinary meaning, albeit that it appears in legislation reflecting positive social policy.  In Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 (Commonwealth Bank), the Full Court addressed whether the bank had engaged in discriminatory conduct contrary to the Sex Discrimination Act 1984 (Cth).  The issue turned, in part, upon whether the bank imposed a condition on female employees which was ‘not reasonable having regard to the circumstances of the case’.  See also Waters; Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74; and Styles.

79                  The meaning of ‘reasonable’ in s 46(1)(g) must depend upon its context in the DD Act (see e.g. per Dawson and Toohey JJ in Waters at 395).  But I do not think the expression in s 46(1)(g) requiring the discrimination to be ‘reasonable having regard to any other relevant factors’ should be given other than its ordinary meaning.  There is no cause to give them some refined meaning by reason of their expression in the exemptions part of the DD Act.  They are words of ordinary parlance.  There is no legislative indication that they should be given some more refined meaning.  The objects of the DD Act, as expressed in s 3, do not in my view require the Court to give the expression other than its ordinary meaning.   The fact that those words may apply only after discriminatory conduct otherwise in contravention of the DD Act has been established does not provide a context for some more refined or onerous meaning.  The content, and context, of s 46(1)(g) directs attention to the reasonableness of established discrimination.  Whether the discrimination is shown to be reasonable is a question of fact in all the relevant circumstances.  See the discussion by Sackville J in Commonwealth Bank at 33-34.

80                  The learned Magistrate concluded that the discrimination of the appellant was not shown to have been reasonable.  In my judgment, that conclusion was readily available.  Indeed, having regard to the fact that the conclusion was based upon essentially uncontested evidence, upon which I could form my own view, I agree with the conclusion.

81                  The discrimination occurred upon the basis of the decision-making system described above.  The causation issues of concern to the appellant involved knowledge of the condition of metastatic breast cancer generally, and an unrefined and anecdotal knowledge of previous large claims.  As to the latter, the appellant did not apply that anecdotal knowledge in any coherent way to its decision-making.  It did not address whether its premiums for travel insurance were fixed having regard to the fact that over a 20 year period it had experienced about 50 difficult causation claims.  Apart from describing anecdotally two of those claims, it did not address how many of those 50 or so claims had been accepted.  It did not address whether all or any (if any) of those 50 or so claims which had been accepted were ultimately considered as claims it should not have accepted or at what cost.  It did not indicate whether, with the greater medical knowledge now available, or the capacity to seek further medical information about the proposed insured before deciding to issue a policy of travel insurance, those claims would not now present the same causation difficulties.  It did not address how many of those 50 or so claims involved policies of travel insurance issued only shortly before the proposed overseas travel, and for a short period of travel only.

82                  Its evidence is that less than one in 10,000 claims result in decisions which the appellant regards as difficult claims.  It has not explained whether the 50 or so difficult claims involve one or a few particular pre-existing conditions.  It has not explained whether it has had any difficulty with claims in the past in respect of metastatic breast cancer, or whether any such difficulties have arisen in respect of that condition where the claimant has been treated by particular forms of medication or in particular ways, or whether the stage of progress of the disease has been relevant to the difficulty.  The labelling of a condition as ‘cancer’ or more precisely as ‘metastatic cancer’ does not of itself mean that it is a reasonable decision to refuse to insure all persons with that condition.

83                  As the evidence of Professor Fox shows, there are events which may arise in the progress of metastatic breast cancer which can reasonably readily be identified as caused by that illness.  In the respondent’s circumstances, they were quite unlikely to arise.  There are medical conditions which may also arise which are well known as potentially related to such an illness, such as venous thrombosis, fracture upon or minor trauma at a metastatic site, so that the appellant should reasonably readily identify whether they may be related to that illness.  There are also incidents which may occur on overseas travel which, although apparently unrelated to the illness, may be more prolonged or complex or difficult to treat by reason of the illness.  But the appellant’s evidence did not go near to showing the extent to which such problems might arise, or at what cost, or how they might be addressed, in the case of the respondent.  Instead, by virtue of the anecdotal claims experience which did not relate specifically to the respondent’s pre-existing medical condition, the appellant discriminated against the respondent.  It declined her any travel insurance.  Its decision excluded her from insurance property loss.  It excluded her from insurance for any family emergency (for example, she was concerned to be able to return promptly to Australia if one of her children in the care of relatives needed urgent care whilst she was away, or if her husband travelling with her, fell seriously ill or was injured).  It excluded her from insurance for any personal illness or accident, even minor illness or accident, occurring whilst she was overseas for a short period, even if the illness or injury was unrelated to her pre-existing medical condition.

84                  The appellant made no attempt to seek further medical information from the respondent or from her medical advisers.  As the Magistrate found, the view was taken that any such information could only re-affirm the appellant’s decision.  In my judgment, the decision of the learned Magistrate that the discrimination was not reasonable having regard to the relevant factors should not be disturbed.

85                  For the reasons given, I consider the appellant applied a decision-making process which was too formulaic or which tended to stereotype the respondent by reference to her disability.  Such grouping of individuals, whether by race or disability, without proper regard to an individual’s circumstances or to the characteristics that they possess, may cause distress or hurt.  This case provides an illustration.  Legislation such as the DD Act is aimed to reduce or prevent such harm.  Section 46 of the DD Act recognises that there are circumstances in which discrimination by reason of disability may be justified (or, at least, not be unlawful).  It requires that the particular circumstances of an individual who is discriminated against be addressed, but not in a formulaic way.  Even if the exemption pathway provided by s 46(1)(f) is utilised, the reference to ‘any other relevant factors’ confirms that legislative intention.

86                  Lest it be thought that the point has been overlooked, I note that the appellant’s notification of its refusal to insure invited the respondent, if she had any questions, to contact the appellant.  The Magistrate found the notification did not reasonably give the impression that there was any point communicating further with the appellant.  I did not understand senior counsel for the appellant to contend that finding was wrong.  I agree with the finding.  The invitation was not one which, in context, conveyed any prospect of the appellant altering its decision in the light of further information or discussion.  It is not a matter which I regard as adding to any measure of the reasonableness or otherwise of the appellant’s discrimination.

(6)               Damages

87                  The Magistrate was obliged to provide reasons for his decision:  Pettit v Dunkley [1971] 1 NSWLR 376; Gamser v Nominal Defendant (1977) 136 CLR 145.  The reasons must reveal why the Court arrived at its decision:  Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264.

88                  In my view, the reasons for the award of damages are adequate.  The Magistrate gave damages for the distress which the respondent suffered by the appellant’s refusal to issue a policy of travel insurance.  He accepted the appellant’s evidence about the nature and extent of the respondent’s distress.  He took account of the fact that the respondent had secured an alternative policy of travel insurance and had in fact travelled to Japan.  He excluded any element of damages for the respondent’s personal campaign for fair treatment for cancer sufferers.  Short of describing in detail the respondent’s evidence, I think there was little more the Magistrate could have been expected to do.  Senior counsel for the appellant, in the course of argument, did not suggest other matters upon which the Magistrate should have dilated to expose his process of reasoning.

89                  I also reject the contention that the damages awarded were manifestly excessive.  The evidence of the respondent demonstrates how deeply she was distressed by the appellant’s discriminatory conduct.  She said she was ‘devastated’.  She said:

‘When living with cancer like I do, you need to keep a positive outlook on life, and winning this trip was a good omen as we were planning an overseas family holiday in 2003.  Japan would be a great dress rehearsal.  The refusal by QBE was like being given the cancer diagnosis again.  I was angry that “someone” that doesn’t know me was telling me to stay home, be good and just die quietly.  They, QBE, wanted to bury me before my time is up.’ 

For a time, she felt the appellant had taken away all that was positive about winning the holiday.  She described the appellant as reaffirming the ‘negatives about cancer’.  It was not suggested her reaction was not a reasonable one.  Medical evidence was not necessary for the Magistrate to accept the respondent’s distress.  In my view, the amount awarded was within the range of compensatory damages which the Magistrate might have awarded.

conclusion

90                  For the reasons given, I consider the appeal should be dismissed.  I so order.

Associate:

Dated:              6 April 2004