Virgin Australia should have allowed “Willow” to fly … Numerous appellable errors in disability discrimination case … Full Feds to the rescue … Primary judge should have paused for “reflection” … Kate Lilly reports

A man whose guide dog was refused permission to fly with Virgin Australia will receive $10,000 in damages, after the Full Feds overturned a decision of Judge Sandy Street in the FCC.

David Mulligan successfully argued that Virgin had discriminated against him under s.24 of the Disability Discrimination Act 1992.

In an ex-tempore judgment, Judge Street dismissed Mulligan’s claim at the first hearing and ordered him to pay Virgin’s costs.

Last month, Geoffrey Flick, John Reeves and John Griffiths overturned the FCC decision and found for Mulligan and his pooch.

The Full Feds added it was “perhaps surprising that the primary judge decided to deliver ex-tempore reasons rather than to first pause for reflection”.

Mulligan suffers from cerebral palsy and has difficulties with his hearing, eyesight and balance. As such, he relies on his guide dog, “Willow”, for assistance.

In 2010, Mulligan attempted to book a flight with Virgin Australia. A dispute subsequently arose as to whether Willow could accompany Mulligan in the passenger cabin.

Although Willow had been trained and certified by Dogs NSW, the airline’s assistance dog policy only covered animals certified by the Australian Guide Dog Association.

After almost two years of back and forth with Virgin, Mulligan lodged a complaint with the Australian Human Rights Commission – alleging unlawful discrimination.

Mulligan said he was forced to travel from Coffs Harbour to the Gold Coast by train and bus, after the death of two relatives. As a result of Virgin’s decision he was also unable to attend the death of another relative in Victoria, and was prevented from visiting an elderly family member with cancer.

The AHRC later terminated Mulligan’s application on the grounds there was “no reasonable prospect of the matter being settled by conciliation”.

On July 19, 2013 Mulligan lodged an application in the Federal Circuit Court, alleging that Virgin had discriminated against him under s.24 of the Disability Discrimination Act 1992 (refusing goods, services and facilities).

Virgin pleaded that it had invited Mulligan to provide evidence that Willow was an assistance animal with proper accreditation under its policy.

The airline denied it had discriminated against Mulligan. As an alternative, it argued that allowing Willow on the flight amounted to “unjustifiable hardship” and would threaten the safety of passengers and crew.

At first instance, Sandy Street dismissed Mulligan’s case and saddled him with Virgin’s costs.

Specifically, HH found that:

HH also reasoned that:

Mulligan promptly appealed. The AHRC was granted leave to appear as amicus curiae.

The Full Federal Court found that Street’s reasoning was marked by “numerous appellable errors”.

First, HH’s “erroneous belief that the instruments were relevant and, indeed, determinative of the case was a fundamental error. That error permeated the entirety of the primary judge’s reasoning”.

Street had also misconstrued reg 256A(2) – in quite the opposite way. The full feds found he had “adopted an unduly narrow view” in restricting the operation reg 256A(2) to persons with visual or hearing impairment alone.

“We see no warrant in the language of reg 256A or in the object or purpose of that provision to confine its operation to circumstances where the person being accompanied by the dog must only be visually impaired or hearing impaired and not also have some additional disability, such as cerebral palsy. Plain words would be required to support the narrow construction adopted by the primary judge.”

The FFC also noted that Street had wrongly characterised the CASA regulations as exhaustive, as to the circumstances Virgin could permit an assistance dog in the passenger cabin.

In doing so, HH did “not [turn] his mind at all to the potential relevance of whether Willow was an ‘assistance animal’ within the meaning of s 9(2) of the Disability Discrimination Act“.

The court added:

“It is difficult to understand why the primary judge did not address these important issues, not the least because it was expressly pleaded in [2] of the further amended statement of claim that, at all material times, Mr Mulligan had ‘an assistance animal’ and reference was made to s 9(2)(a) and (c) of the DDA.”

The FCC concluded that Willow did qualify as a trained “assistance animal” under s.9 of the DDA. Accordingly, the dog could be regarded as part of Mulligan’s disability for the purposes of direct discrimination. On this basis, Virgin was required to treat Mulligan in the same way as a customer without a disability (and without a dog).

“We find that the airline’s conduct during the period from at least December 2010 to at least September 2012 in refusing permission for Willow to travel in the cabin with Mr Mulligan constituted direct discrimination within the meaning of s.5 because Virgin Australia treated Mr Mulligan less favourably than it would treat the comparator. Such discrimination is unlawful under s.24 of the DDA.”

Mulligan sought $50,000 in compensatory damages for non-economic loss. In addition, he asked for aggravated damages in the same amount, and exemplary damages to the tune of $100,000.

That claim proved optimistic. The FCC observed that the evidence relating to the damages was limited, and felt that an award of aggravated and exemplary damages would be inappropriate. Accordingly, Mulligan was awarded $10,000 in compensatory damages, with costs in his favour.

Mulligan v Virgin Australia Airlines Pty Ltd