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COVID-19 discrimination claim ‘offends common sense’, judge rules
A Federal Court judge said it would “offend common sense” if he allowed a woman to bring a claim of discrimination against a Melbourne hospital for requiring her to wear a face shield.
Naomi Neilson
Melbourne resident Julie Joy Myers claimed it would be in the public interest if the Federal Court allowed her an extension of time to bring proceedings alleging direct discrimination on the basis of disability, but Justice Francis Wheelahan it would be “counter-intuitive”.
“It is impossible to ignore that the respondent was providing medical services in June 2021 when there was a public health emergency on foot in relation to a disease caused by a contagious virus that resulted in the death of vulnerable people,” Justice Wheelahan said.
“In the legal and practical context, it would be counter-intuitive, and indeed it would offend common sense, to think that the respondent discriminated against the applicant in the way alleged because it took protective measures of requiring the applicant to wear a face shield instead of a face mask and directed her to a cubicle.”
At the time, Ms Myers said she had a medical certificate that stated she had a rash on her face likely caused by masks and had been advised by her doctor to refrain from wearing one until it healed.
She alleged no one at the hospital read the letter and that she was repeatedly denied a request to remove the shield.
The mask itself was placed on her without consent, she alleged. The court said it appeared to be a shield that went over her face but did not make any contact and was typically worn in Melbourne hospitals.
Despite it not touching her face, Ms Myers alleged the shield exacerbated the rash, caused a cut to her neck, caused headaches, dry-retching and psychological and emotional damage.
Ms Myers made a complaint with the Australian Human Rights Commission, which was dismissed in December 2021.
She had 60 days to escalate the matter but failed to do so until six and a half months later, alleging that the incident had left her with an anxiety-related condition that made it difficult to concentrate.
The Alfred Hospital said the excuse was not acceptable and that her actions indicated she “elected to press her discrimination claim in the Magistrates Court to the exclusion of any claim before this court”.
Justice Wheelahan said the claims “are not of sufficient merit to justify an extension of time to bring the proceeding, and that it would not be in the interests of the administration of justice to allow it”.
“Even on the assumption that the applicant sustained injury as a result of the requirement to wear a face shield, or to wait in a cubicle at the hospital, I am not satisfied that there is a reasonable case that this was because of unlawful discrimination,” he added.
Ms Myers originally appeared self-represented, but barrister Rolf Sorensen accepted a referral from the court for pro bono assistance.
“This had the result that the applicant’s case was presented in a very organised and coherent way that was of great assistance,” Justice Wheelahan said.
“Mr Sorensen is to be commended for the service that he provided.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
