Agius v St VINCENT'S Health - [2012] FMCA 840

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AGIUS v ST VINCENT'S HEALTH

[2012] FMCA 840

HUMAN RIGHTS – Deaf patient – whether hospital required to provide a qualified Auslan interpreter – where requirements of the hospital were reasonable in the circumstances – whether indirect discrimination against the applicant – whether provision of qualified interpreter would cause undue hardship.

Disability Discrimination Act1992, ss.5, 6, 24
Australian Human Rights Commission Act 1986 (Cth), s.46PH(1)(i)
Evidence Act 1995, s.69(1)

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336
Catholic Education Office v Clarke [2004] FCAFC 197
Commonwealth of Australian v Human Rights and Equal Opportunity Commission (1995) 133 ALR 629
Devers v Kindilan Society (ACN 004 947 782) (2009) 263 ALR 433
Devers v Kindilan Society (ACN 004 947 782) (2010) 116 ALD 239
Hurst v Queensland (2006) 151 FCR 562
Jackson v Lithgow City Council [2010] NSWCA 136
Jones v Dunkel & Anor 101 CLR 298
Nojin v Commonwealth of Australia [2011] FCA 1066
Queensland v Forest (2008) 168 FCR 532
Sluggett v Human Rights and Equal Opportunity Commissioner & Anor (2002) 123 FCR 561
State of Victoria v Schou (No 2) (2004) 8 VR120
Walker (by his next friend Walker) v Victoria (Department of Education and Early Childhood Development) (2011) 279 ALR 284
Waters & Ors v Public Transport Corporation (1991) 173 CLR 349

Applicant:

JOANNA AGIUS

Respondent:

ST VINCENT'S HEALTH (T/AS ST VINCENT’S HOSPITAL (MELBOURNE) LTD)

File Number:

MLG 342 of 2010

Judgment of:

Turner FM

Hearing dates:

30 and 31 March 2011, 1 April 2011, 12, 13 and 14 December 2011, 26 July 2012, 27, 28, 29, 30 and 31 August 2012

Date of Last Submission:

31 August 2012

Delivered at:

Melbourne

Delivered on:

14 September 2012

REPRESENTATION

Solicitors for the Applicant:

Access Law

Counsel for the Respondent:

Mr Harrington

Solicitors for the Respondent:

Middletons

ORDERS

The Application filed on 9 March 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 342 of 2010

JOANNA AGIUS

Applicant

And

ST VINCENT'S HEALTH (T/AS ST VINCENT’S HOSPITAL (MELBOURNE) LTD)

Respondent

REASONS FOR JUDGMENT

In this matter, the applicant Joanna Agius (“Agius”), seeks remedies for alleged discrimination against her by St Vincent’s Health (trading as St Vincent’s Hospital (Melbourne) Ltd) (“St Vincent’s”).
The applicant is deaf and brings her action pursuant to ss.5, 6 and 24 of the Disability Discrimination Act1992 (“DD Act”), as it was in 2008, when the alleged discrimination occurred.
Those sections provide:
Section 5 Disability discrimination
(1)For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2)For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or service may be required by the person with a disability.
Section 6 Indirect disability discrimination
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Section 24 Goods, services and facilities
(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person’s associates:
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2)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.
For Agius to succeed she must establish:
·That St Vincent’s imposed a “requirement or condition” that she access and/or receive medical treatment without the assistance of an Auslan interpreter;
·That the system at St Vincent’s for providing Auslan interpreters was unreasonable in the circumstances;
·That the staff, including physiotherapist Ashima Gupta (“Gupta”), indirectly discriminated against Agius by examining and treating her, and providing health services to her, without allowing her the assistance of an Auslan interpreter.
·That she suffered serious disadvantage by not being provided with an Auslan interpreter; and
·That if a “requirement or condition” was imposed on her by St Vincent’s, it was not reasonable having regard to the circumstances of the case.
Agius attended at the Emergency Department (“ED”) of St Vincent’s on:
a)12 August 2008 (the “first attendance”);
b)14 September 2008 (the “second attendance”); and
c)17 September 2008 (the “third attendance”).
St Vincent’s is a not-for-profit hospital that was established by the Sisters of Charity to provide general health and medical services to the public.
Agius alleges that St Vincent’s imposed a “requirement or condition” on her that she access and/or receive medical treatment without the assistance of an Auslan interpreter.
Agius made a complaint to the Human Rights and Equal Opportunity Commission (“HREOC”) on 24 February 2009. A Notice of Termination of that complaint was given on 11 January 2010. As a consequence of that Notice, Agius made application to this Court pursuant to s.46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth).
At the hearing before the Court Mr Perkins appeared for Agius, and Mr Harrington of Counsel appeared for St Vincent’s.

The Defence of St Vincent’s

On each ED attendance, Agius arrived unannounced and outside normal business hours. On each attendance, Agius used written English to communicate with staff, and permitted/directed her friend Ms Sandra Remedio (“Remedio”), an Auslan student, to assist her in communicating with staff. On each attendance Agius was treated for the condition she presented with; Agius has produced no evidence to show that she:
·Was not treated; or
·Was not treated properly; or
·Suffered as a consequence of the treatment she received.
Agius has not claimed that she was humiliated or particularly upset after each ED attendance.
Agius complains that because the ED did not ensure that an accredited external Auslan interpreter attended the ED on each attendance by Agius, it has indirectly discriminated against her in breach of s.6 of the DD Act.
That claim does not fit within s.6 of the DD Act.
Towards the end of the hearings, Mr Perkins agreed with the construction by the Court, that the “requirement or condition” imposed on Agius, was that she access and/or receive treatment without the assistance of an Auslan interpreter.
Mr Harrington submits that the concept of a “requirement or condition” involves the notion of compulsion or obligation (see Sluggett v Human Rights and Equal Opportunity Commissioner & Anor (2002) 123 FCR 561 at [56]). The Court accepts that submission.
Mr Harrington submits that it is a question of fact whether a “requirement or condition” was imposed (see Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 394.4). The Court accepts that submission.
Mr Harrington referred to the decision of Tracey J in Walker (by his next friend Walker) v Victoria (Department of Education and Early Childhood Development) (2011) 279 ALR 284 at [194] as follows:
“…a reasonable degree of precision is necessary when relevant requirements or conditions are being identified. A respondent is entitled to know what requirements or conditions it is said to have imposed on an applicant”.
The Court finds that, although it came late in the proceedings and after questioning by the Court, Mr Perkins stated the “requirement or condition” that Agius says was imposed by St Vincent’s (refer [13] supra). The Court finds that St Vincent’s did not impose “a requirement or condition” that Agius access and/or receive medical treatment without the assistance of an Auslan interpreter. Agius had the assistance of Remedio (post), and St Vincent’s was able to book an Auslan interpreter for Agius for the attendance on 14 September 2008, but due to illness that interpreter was unable to attend. At no time did St Vincent’s impose a “requirement or condition” that Agius access and/or receive treatment without the assistance of an Auslan interpreter. Agius had an Auslan student with her and could have arranged for an Auslan interpreter.
Mr Harrington submits that the evidence shows that on all three attendances, Agius was able to access and/or receive treatment at St Vincent’s without the assistance of an Auslan interpreter. The Court finds that it is not correct for Agius to assert that because of her disability, and in order to access treatment at St Vincent’s, she required an Auslan interpreter to be in attendance.
On the evidence the Court finds that Agius did not require an Auslan interpreter to be present in order for her to access and/or receive treatment at St Vincent’s.
Later in his submissions, Mr Harrington submitted that because Agius did not call Remedio as a witness, the inference should be drawn that Remedios’ evidence would not have assisted Agius’s case. When asked why Remedio did not give evidence Mr Perkins simply stated “I don’t (have) the answer to that” (Transcript “T” 30/8/2012 p.299, l.38).
In accordance with Jones v Dunkel & Anor 101 CLR 298 the Court draws the inference that the evidence of Remedio would not have assisted Agius, and draws the inference that Agius feared that to call Remedio would expose facts unfavourable to her (Ibid Windeyer J at p.321.1).
Mr Harrington refers to the decision of Black CJ (as he then was) in Queensland v Forest (2008) 168 FCR 532 at [7] about the operation of s.6(a) of the DD Act as follows:
“Section 6(a) therefore directs attention at the outset to two groups of people: persons with the disability that affects the aggrieved person and persons without that disability. Those with the disability are usually, in this field of discourse, referred to as comprising the comparator group, and those in the broader group are referred to as the base group. Discrimination occurs if the requirement or condition impacts more severely upon persons with a disability than it does upon persons without the disability. Since the requirement or condition may impact upon both groups, the Act requires reference to the proportionate impact and a consideration of whether “a substantially higher proportion of persons without the disability” can or are able to comply”.
That passage was cited with approval in Walker (supra) at [249].
Mr Harrington submits that the appropriate base group is persons who attend the ED unannounced, who do not have a hearing impairment, but who could have language-based or other communication difficulties. He submits that the comparator group is persons who are deaf. The Court accepts those specifications.
Mr Harrington submits that the inability to comply must result in serious disadvantage to the disabled person, and referred to the decision in Hurst v Queensland (2006) 151 FCR 562 at [134] as follows:
“We have concluded that Lander J erred in his construction of the “not able to comply” component of s 6(c). His Honour's own findings ought to have led him to conclude that Tiahna was relevantly "not able to comply" with the requirement or condition that she be taught in English, without the assistance of Auslan. In our view, it is sufficient to satisfy that component of s 6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can “cope” with the requirement or condition. A disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage. In Tiahna's case, the evidence established that it had done so”. (emphasis added)
In the present case, Mr Perkins asserts that the disadvantage suffered by Agius was that she might not have been able to fully understand what the staff at St Vincent’s were telling her.
On the evidence, the Court finds that Agius received medical treatment upon each attendance. She may have misunderstood the instruction by Gupta about whether to rest or exercise, but there is no evidence that what Agius did exacerbated her condition or slowed down her recovery. The Court finds that Agius did not suffer any serious disadvantage. She was able to communicate with staff at St Vincent’s through written English and through her friend Remedio, an Auslan student.
The above passage in Hurst was approved by the Full Court in Devers v Kindilan Society (ACN 004 947 782) (2010) 116 ALD 239 at [22].
Mr Harrington addressed the requirement in s.6(b) of the DD Act that if a requirement or condition is imposed it is “not reasonable having regard to the circumstances of the case”.
Mr Harrington submits that in assessing reasonableness the Court should apply the principles set out in Catholic Education Office v Clarke [2004] FCAFC 197 and approved in Walker (supra) at [255] as follows:
“Any requirement or condition which is imposed by an educational authority will only be the cause of indirect discrimination if it “is not reasonable having regard to the circumstances of the case”: see s 6(b) of the DDA. In Clarke (at [115]) Sackville and Stone JJ summarised the principles which had been developed in the application of s 6(b). They were:
(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111 ; 150 ALR 1 at 33–4 ; 50 ALD 360 at 389–90, per Sackville J (with whom Davies and Beaumont JJ agreed), and the authorities cited there;
(ii) The test of reasonableness 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 condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263 ; 88 ALR 621 at 634 ; 18 ALD 495 at 504, per Bowen CJ and Gummow J; Waters v Public Transport Commissionat CLR 395–396; ALR 547–8, per Dawson and Toohey JJ; at CLR 383; ALR 538, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82–83 ; 133 ALR 629 at 636–8 ; 41 ALD 27 at 34–5, per Lockhart J.
(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Stylesat FCR 263; ALR 634; ALD 504. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46 at 61–62 ; 137 ALR 653 at 667–9 ; 44 ALD 193 at 206–8, per Heerey J; Commonwealth Bank v HREOCat FCR 112–113; ALR 34–5; ALD 390–1, per Sackville J; and
(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporationat CLR 395; ALR 547, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at CLR 383–384; ALR 538–9). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOCat FCR 88; ALR 11; ALD 369, per Beaumont J; Victoria v Schou (2004) 8 VR 120 ; [2004] VSCA 71 at [26], per Phillips JA”.
Mr Harrington referred to the decision in Nojin v Commonwealth of Australia [2011] FCA 1066 where Gray J decided at [98]:
“Section 6(b) of the Disability Discrimination Act does not call for perfection. A system less than perfect can nonetheless be reasonable in the circumstances of a case”.
The Court has found that St Vincent’s did not impose a “requirement or condition” that Agius access and/ or receive treatment without the assistance of an Auslan interpreter, but if it did, the Court would find that the system at St Vincent’s for supplying Auslan interpreters where requested or where assessed to be necessary, was reasonable in the circumstances. Those circumstances include:
·That St Vincent’s is called on to provide interpreters in a variety of languages;
·Only a small percentage of patients require Auslan interpreters;
·It would be very expensive and inefficient to employ Auslan interpreters on a full time basis;
·Auslan interpreters are in short supply in Victoria; and
·Agius did not give St Vincent’s any notice that she required an Auslan interpreter.
Mr Harrington addressed the Court on the facts in the case, which include:
·Of the 38,956 attendances at the ED in 2008 – 2009, 57 were deaf persons.
·In 2008 – 2009, the ED had an operating loss of approximately $3,700,000.00.
·St Vincent’s operates an Interpreter Services Department.
·In the ED, if a deaf person objects to proceeding with treatment without an Auslan interpreter in attendance, treatment will usually be delayed, subject to any threatening health condition.
·There is a shortage of qualified Auslan interpreters in Victoria.
·It is often difficult to obtain an Auslan interpreter outside the hours of 9am to 5pm.
Mr Harrington refers to s.24 of the DD Act and the defence under sub-s.(2) that discrimination against a person on the grounds of their disability is not unlawful, if the provision of services would impose unjustifiable hardship on the provider.
Mr Harrington submits that it would impose unjustifiable hardship on St Vincent’s to have a system whereby it could provide Auslan interpreters from it’s own resources 24 hours per day, 7 days per week.
On the evidence, the cost of employing an Auslan interpreter would be $40,000.00 p.a. for a 40 hour week. The Court finds that it would cause unjustifiable hardship on St Vincent’s to employ full time Auslan interpreters, especially considering the limited number of attendances that they would be required for.

Mr Harrington submits that there is no evidence that in 2008 Agius could not lip read or use gesture, mime or some written communication. Agius passed Year 10 English and can read and write English. The Court finds that in such circumstances, and where Agius had the assistance of an Auslan student, Remedio, it would be unreasonable to require St Vincent’s to employ an Auslan interpreter.

The First Attendance

The first attendance was on Tuesday 12 August 2008 at 6.30pm. The Court finds that Agius attended unannounced with a rash. Agius had not booked an Auslan interpreter to attend. Mr Harrington asserts that Agius sent a text message to an Auslan interpreter but one did not arrive (T 31/8/2012 p.330, l.33). She communicated with the triage nurse by using written English. Remedio arrived at 9pm and assisted Agius with her communication in the ED. Agius later communicated with the ED doctor with the assistance of Remedio.
There is no evidence to substantiate any disadvantage suffered by Agius on that occasion. Agius has not proven that she was unable to have effective communication with the staff at St Vincent’s. Agius obtained access to, and received treatment. There is no evidence that Agius requested that treatment be delayed until after an Auslan interpreter arrived. There is no evidence of any adverse medical reaction to the treatment received.
The Court finds that Agius attended the ED and gained access to, and received, medical treatment. Agius has not established that she suffered any serious disadvantage.

The Second Attendance

The second attendance was on Sunday 14 September 2008 at 10am. The Court finds that Agius arrived unannounced. Agius had not booked an Auslan interpreter to attend. Agius communicated with the triage nurse via written English and her friends, Nadia Baradi (“Baradi”) and Remedio. The clinical notes record the attempt by St Vincent’s to obtain an Auslan interpreter. An interpreter was booked, but was later unwell, as a result of which an Auslan interpreter could not attend. Agius’s back injury was diagnosed by a competent doctor who administered pain relief. The care of Agius was then transferred to Gupta. Remedio offered to assist with communication between Agius and Gupta.
There is no evidence that Agius requested that treatment be delayed until after an Auslan interpreter arrived. There is no evidence of any adverse medical reaction to the treatment received.
The Court finds that Agius attended the ED and gained access to, and received, medical treatment. Agius has not established that she suffered any serious disadvantage.
Mr Harrington submits that the question at the crux of Agius’s case becomes:
“Upon accepting the offer of communication assistance from a friend of the applicant, an Auslan student Ms Remedio, in circumstances where a booked Auslan interpreter could not attend on a Sunday, did Ms Gupta indirectly discriminate against the applicant by communicating with her, examining her and treating her – (when) providing the health services?”
(Respondent’s Closing Submissions at [66] and T 30/08/12 p.276, l.16)
The Court finds that the clinical notes prepared by Gupta (Exhibit R1) are detailed and extensive. From those notes the Court finds that the communication between Agius and Gupta, with the assistance of Remedio was effective. Gupta was able to diagnose the problem and prescribe treatment. There is no evidence of improper medical treatment. The Court prefers the evidence of Gupta as to the advice given to Agius. Gupta had a precise recollection of the events. Gupta is the only person who gives out the exercise sheet.
Agius did not suffer any serious disadvantage.

The Third Attendance

The third attendance was on Wednesday 17 September 2008 at 9.30pm. The Courts finds that the applicant arrived unannounced by ambulance at 9.30pm. Agius did not arrange for an Auslan interpreter to attend and did not request an Auslan interpreter when she arrived. Agius arranged for Remedio to attend. The patient history was obtained “via friend who speaks Auslan” (Annexure SC-3 to the Affidavit of Sue Cowling sworn 22 November 2010, Court Book (“CB”) p.82). The patient history is detailed and shows communication between Agius and the triage nurse. Agius gave evidence that she received good treatment and that she had no complaints about it.
The Court finds that Agius has not established that she suffered any serious disadvantage.
Mr Harrington submits that St Vincent’s did not breach s.24 of the DD Act in that:
a)St Vincent’s did not deny Agius any health service or refuse to make available to Agius any health service [s.24(1)(a)];
b)St Vincent’s did not discriminate against Agius in the terms or conditions upon which it provided goods and services to Agius [s.24(1)(b)]; and
c)St Vincent’s did not discriminate against Agius in the manner in which it provided goods or services to Agius [s.24(1)(c)].
The Court accepts those submissions.
The Court accepts that Agius received medical treatment on each attendance and there is no evidence of any adverse health, or other adverse consequences resulting from that treatment.
The Court finds that Gupta provided a “near identical document” (Exhibit AG-1 annexed to her Affidavit filed 23 November 2010) to Agius on 14 September 2008.
The Court finds that if there was a requirement or condition imposed by St Vincent’s concerning communication, it was not unreasonable in the circumstances of the case, considering:
·That St Vincent’s ED operates 24 hours every day.
·Agius attended the ED only occasionally.
·In 2008 there were only 57 attendances at the ED by deaf persons.
·The cost of providing/employing a full time Auslan interpreter would be $40,000.00 p.a. for a 40 hour week.
·The difficulty of obtaining Auslan interpreters both between 9am and 5pm, and outside those hours.
·That there were reasonable alternatives to the provision of an Auslan interpreter, being Agius’s friends and Agius’s ability to read and write in English and use gesture forms of communication.
The Court finds that Agius was able to, and did, comply with the communication conditions or requirement, if any, imposed by St Vincent’s.
First, the Court finds that St Vincent’s did not impose any such requirement or condition. Agius did not ask that medical treatment be delayed until an Auslan interpreter attended. Agius was free to provide an Auslan interpreter and communicate through them.
Secondly, Agius was able to communicate with staff at St Vincent’s including by other means, as evidenced by the clinical notes.
The Court accepts that Agius’s subjective preference to communicate only through an accredited interpreter is not determinative (see State of Victoria v Schou (No 2) (2004) 8 VR120) of whether a “requirement or condition” is reasonable in the circumstances. The subjective preferences of the aggrieved person are not determinative of whether a requirement or condition is reasonable: Commonwealth of Australian v Human Rights and Equal Opportunity Commission (1995) 133 ALR 629 at p.636 -638. The test is an objective one (Ibid p.637, 640 and 650).
The Court finds that Agius has not established that she suffered any serious disadvantage – Agius received medical treatment for the conditions she attended with. There is no expert medical evidence of misdiagnosis, medical negligence, or improper treatment.
It is not necessary for the Court to determine whether Agius must meet the Briginshaw standard (post) in proving her case of adducing evidence of sufficient cogency to prove the serious allegations of unlawfulness on the balance of probabilities (see Briginshaw v Briginshaw & Anor (1938) 60 CLR 336). This is so, because Agius’s claims fail to meet the statutory requirements considered above. Agius has not established that she was denied medical treatment. Agius has not established that she was seriously disadvantaged by her treatment at St Vincent’s. Agius has failed to show that being required to communicate without an Auslan interpreter was unreasonable. There is therefore no need to consider the defence of unjustifiable hardship under s.24 of the DD Act.
Agius has not established that St Vincent’s imposed a “requirement or condition” that she access and/or receive medical treatment without the assistance of an Auslan interpreter. Agius has not established that any condition or requirement imposed by St Vincent’s was not reasonable. Agius has not established that the system at St Vincent’s was unreasonable in the circumstances. Agius has not shown that the staff at St Vincent’s indirectly discriminated against her by examining and treating her, and providing her with health services, without allowing her the assistance of an Auslan interpreter.
Agius has not established that she suffered any serious disadvantage by not being provided with an Auslan interpreter.
Mr Perkins made submissions that were contrary to the submissions to, and the findings of, the Court above. He submits that Agius suffered serious disadvantage through the risk that she may not have been communicating effectively with staff at St Vincent’s. In the circumstances, and having regard to the evidence, the Court rejects that Agius was exposed to that risk. Agius could have asked that treatment not be administered to her until she was provided with an Auslan interpreter, but she failed to do so. If there was a risk, she chose to take it. Agius suffered no serious disadvantage.
Mr Perkins submits that Agius is not seeking that St Vincent’s employ Auslan interpreters 24 hours per day, but the Court finds it difficult to see how the behaviour he complains of can be cured without having at least one Auslan interpreter employed at St Vincent’s at all times. Mr Perkins proposes no other solution.
Mr Perkins submits that Aguis does not make allegations against Gupta. The Court finds that there would be no basis for such allegations, if made.
Mr Perkins referred to the decision in Hurst (supra) at [121] – [128] as to what was said in Clarke about the applicant there being entitled to the full benefit of an education, and that sign language, lip reading and note taking were not as efficient as Auslan. The Court finds that may be so, but in the present case, communication between Agius and the staff at St Vincent’s was established on each attendance including through Remedio using Auslan.
Mr Perkins submits that Agius coping at the attendances was not sufficient and that she was entitled to the benefit of full communication. The Court finds that there is no evidence of the extent of any alleged lack of communication. Agius attended at St Vincent’s and received treatment on each attendance.
Mr Perkins made submissions as to how consultations with medical staff, including Gupta should proceed (T 30/8/2012 p.293 and 295, l.37). Mr Perkins is not a physiotherapist or other medical practitioner and is not in a position to give expert opinion about such matters.
Mr Perkins stated that the claim of discrimination is that St Vincent’s failed to provide an Auslan interpreter (T 30/8/2012 p.246, l.11). The Court observes that an Auslan student was present and assisted at each attendance. Communication was established.
Mr Perkins submitted that the “requirement or condition” imposed by St Vincent’s is that Agius access treatment in the absence of an Auslan interpreter. The Court has considered this claim (supra) and finds that Agius did not suffer any disadvantage as a result.
Mr Perkins submits that, on the balance of probabilities, there was miscommunication between Gupta and Agius. The Court finds that not to be established by the evidence.
Mr Perkins complains that Dr Akhlaghi was not called by St Vincent’s, nor were the triage nurses and submits that adverse inferences should be drawn. There was no need to call them as witnesses. As distinct from Remedio, the Court has evidence from Dr Akhlaghi and the triage nurses in the form of their notes. That evidence has been given through other witnesses. One of the triage nurses no longer works in the ED (T 31/8/2012 p.333, l.21). Adverse inferences are not drawn in relation to the failure to call them.
Mr Perkins submits that there was a “very serious difference” between the full benefit (of having an Auslan interpreter) and the help that was obtained (T 30/8/2012 p.303, l.25). That has not been established by the evidence. Remedio was not called to establish that.
Mr Perkins submits that “there is ample evidence that there are interpreters out there”. The Court finds that there is evidence that Auslan interpreters are in very short supply in Victoria, and hard to obtain, especially on short notice.
Mr Perkins submits that the evidence is that it is highly desirable to have an Auslan speaking patient assisted by an Auslan interpreter. The Court accepts that contention. However, St Vincent’s acted reasonably in proceeding to treat Agius, where she did not request a delay until an Auslan interpreter could attend, and where she could read and write English and had Remedio to assist her in Auslan.
Mr Perkins referred to the United Nations Convention on the Rights of Persons with Disabilities under which “persons have the right to medical… treatment”. The Court finds that Agius received medical treatment at St Vincent’s.
Mr Perkins submits that the consequences of the alleged discrimination against Agius are frustration, stress, anxiety and an increased risk of inappropriate treatment. Having found that the hospital did not discriminate against Agius it is not necessary to consider these alleged consequences.
Mr Perkins did not address the Court in relation to the remedies sought in para.24 of Agius’s complaint to the HREOC (CB p.19) being that:
a)The hospital implement a policy that ensures that deaf people requiring Auslan interpreters to communicate are provided with such;
b)Or if the hospital already has such a policy, to develop a procedure that ensures that all relevant staff are aware of such a policy; and
c)Damages.
As observed above, it is hard to see how (a) could be achieved other than by St Vincent’s employing an Auslan interpreter on a full time basis. It is likely that more than one full time interpreter would need to be employed, in case more than one deaf person attended the ED at any one time. To do this would impose unjustifiable hardship on St Vincent’s [s.24(2)].
In any event, the Court has found that the actions of St Vincent’s were not in breach of the DD Act. Remedies are therefore not called for.
Mr Perkins states that Agius seeks the following damages:
·For the first attendance - $5,000.00.
·For the second attendance - $10,000.00.
·For the third attendance - $15,000.00.
As there was no discrimination, the application for damages is dismissed.

Mr Harrington in Reply

Mr Harrington submits that the clinical notes of Dr Akhlaghi and Gupta are business records and admissible under s.69(1) of the Evidence Act 1995 as evidence of what occurred. The Court accepts that submission. The documents were “part of the records kept by a person, body or organisation in the course of… a business”. Mr Harrington referred to Jackson v Lithgow City Council [2010] NSWCA 136 where ambulance records, being clinical notes of the ambulance officers, were held to be business records.
Mr Harrington submits that Agius did more than cope with the conditions as to communication with staff at St Vincent’s, as on each attendance she received the required medical treatment. The Court accepts that submission. Proper communication was established at each attendance. Agius was able to comply with the system for communication with staff.
Mr Harrington submits that Agius has not discharged the onus of establishing that the “requirement or condition” or alleged to be imposed by St Vincent’s was not reasonable. The Court accepts that submission. The way St Vincent’s required communication to occur was reasonable in the circumstances, where Agius could read and write in English, and where she had the assistance of Remedio, an Auslan student.
Mr Harrington referred to Devers v Kindilan Society (ACN 004 947 782 (2009) 263 ALR 433 at first instance where Marshall J stated at [79]:
“Although she was disadvantaged by the failure to provide qualified interpreters… this does not inevitably lead to the conclusion that the requirement or condition was not reasonable in all the circumstances”.
That decision was not overturned on appeal. The Court applies the above statement here.
Mr Harrington referred to the Affidavit of Agius filed on 12 December 2012 where in [22], Agius claims that her dealings with the hospital made her profoundly traumatised and upset. The Court accepts the submission by Mr Harrington that the fact that an applicant feels disadvantaged, (here traumatised and upset), does not mean that the requirement or condition was not reasonable in the circumstances (T 31/8/2012 p.334, l.25).
For the reasons stated herein the Court finds that St Vincent’s did not discriminate against Agius.
The application filed on 9 March 2010 is dismissed.

I certify that the preceding eight-five (85) paragraphs are a true copy of the reasons for judgment of Turner FM

Date: 14 September 2012