Burns v Director General of the Department of Education
[2015] FCCA 1769
•10 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BURNS v DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION | [2015] FCCA 1769 |
| Catchwords: REMEDIES – Human rights – power to order apology – circumstances in which an apology ordered. WORDS AND PHRASES – “consult” – “consultation”. |
| Legislation: Constitution, s.109 Disability (Access to Premises – Building) Standards 2010 (Cth) Disability Standards for Education 2005 (Cth), ss.1.4, 2.2, 3.3, 3.4, 4.2, 5.2 |
| Campbell v Kirstenfeldt [2008] FMCA 1356; (2008) EOC 93-515 Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121; 81 ALD 66 Clarke v Catholic Education Office & Anor [2003] FCA 1085; (2003) 202 ALR 340; (2003) 76 ALD 84; (2004) EOC 93-310 Cooke v Plauen Holdings Pty Ltd trading as Bica Prolab [2001] FMCA 91 Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352; (2001) EOC 93-168 Escobar v Rainbow Printing Pty Ltd (No.2) [2002] FMCA 122; (2002) 120 IR 84; (2002) EOC 93-229 Forbes v Commonwealth of Australia [2003] FMCA 140; (2003) EOC 93-288 Grulke v K C Canvas [2000] FCA 1415 Haar v Maldon Nominees [2000] FMCA 5; (2000) 184 ALR 83 Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243; (2002) 120 FLR 243; (2002) 71 ALD 567; (2002) EOC 93-238 Jones v Toben [2002] FCA 1150; (2002) 71 ALD 629; (2002) EOC 93-247 Kutluv Director of Professional Services Review [2011] FCAFC 94; (2011) 197 FCR 177; (2011) 280 ALR 428; (2011) 123 ALD 399 Lee v Smith & Ors (No.2) [2007] FMCA 1092; (2007) EOC 93-465 Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34 Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133; (2003) 78 ALJR 1; (2003) 77 ALD 570 Sheehan v Tin Can Bay Country Club [2002] FMCA 95; (2002) EOC 93-240 Sievwright v Victoria [2012] FCA 118 Travers v State of New South Wales [2001] FMCA 18; (2001) 163 FLR 99 Walker v State of Victoria [2011] FCA 258; (2011) 279 ALR 284 Walker v State of Victoria [2012] FCAFC 38 |
| Applicant: | TAHLIA BELLA BURNS BY HER LITIGATION GUARDIAN, DAVID JOHN BURNS |
| Respondent: | DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION |
| File Number: | PEG 69 of 2012 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 15, 16 and 18 July 2013 |
| Date of Last Submission: | 18 July 2013 |
| Delivered at: | Perth |
| Delivered on: | 10 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr GMG McIntyre SC |
| Solicitors for the Applicant: | Granich Partners |
| Counsel for the Respondent: | Ms CJ Thatcher |
| Solicitors for the Respondent: | State Solicitor’s Office |
ORDERS
The parties confer forthwith with respect to the form of the final order as to damages, and costs. Any minute of proposed consent order be filed by 4.00pm on 15 July 2015, but otherwise the matter is adjourned to a further directions hearing at 4.00pm on 17 July 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 69 of 2012
| TAHLIA BELLA BURNS BY HER LITIGATION GUARDIAN, DAVID JOHN BURNS |
Applicant
And
| DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION |
Respondent
REASONS FOR JUDGMENT
Introduction
Tahlia Bella Burns (“Tahlia”), is a minor who sues (by her father and litigation guardian, David John Burns (“Mr Burns”)) the Director General of the Department of Education in Western Australia (“Director General”) for alleged disability discrimination contrary to the:
a)Disability Discrimination Act 1992 (Cth) (“DD Act”);
b)Disability Standards for Education 2005 (Cth) (“Disability Standards”); and
c)Disability (Access to Premises – Building) Standards 2010 (Cth) (“Access to Premises Standards”).
at the Kardinya Primary School (“KPS”) from 2009 to 2012.
Timeline
A brief timeline of events is as follows:
Date
Event
2004 (21 April)
Tahlia born.
2009 (4th Term)
Commences pre-primary at KPS 2 days per week. At Carson Street School (“CSS”) 3 days per week.
2010
Commences Year 1: 3 days per week at KPS; 2 days per week at CSS.
2011
Commences Year 2: 3 days per week at KPS; 2 days per week at CSS.
2011 (2 November)
Tahlia’s last day at KPS.
2012 (10 May)
Tahlia’s enrolment at KPS cancelled.
The parties and the people
The applicant
Tahlia was born on 21 April 2004.
The available medical evidence indicates that Tahlia has multiple disabilities. Those disabilities are set out in more detail below.
The respondent
The Director General is an “educational authority”, as defined in s.4(1) of the DD Act (as set out below), and is vested with powers and functions set out in the School Education Act 1999 (WA) (“SE Act”) (relevant provisions of which are also set out below).
Some other people involved
Mr Burns, is Tahlia’s litigation guardian for the purposes of these proceedings, and is also her father. He is also the music teacher at KPS, and has taught at KPS for many years.
Mrs Burns is Tahlia’s mother, and Mrs Millett is Tahlia’s grandmother.
Mr Lin is the principal of KPS.
Ms Monley is a deputy principal of KPS.
Ms Mervyn is a deputy principal of KPS.
Tahlia’s class teachers were as follows:
a)in pre-primary: Ms Norton;
b)in Year 1: Ms Robinson; and
c)in Year 2: Ms White.
A number of education assistants (“EAs”) assisted Tahlia whilst at KPS, including the following:
a)Ms Brindley;
b)Ms Lawrence;
c)Ms Norton;
d)Ms Draper;
e)Mis Hill; and
f)Ms Kennedy.
A number of other persons who were involved, included the following:
a)Ms Ballantyne, who was a Teacher Conductor, and the Conductive Education Services Coordinator at CSS;
b)Ms Collins, the Regional Executive Director, South Metropolitan Education Regional Office in the Department of Education;
c)Ms Fitzpatrick, a Teacher Conductor and Communication Coordinator at CSS;
d)Ms Galati, the Learning Support Coordinator at KPS;
e)Ms Harvey, a senior consultant (Access) in the Facilities Programme Delivery Directorate of the Department of Education;
f)Ms Henderson, a member of the Department’s Disability High Support Team, and for 20 years until 2005 the Deputy Principal of the Kim Beazley School for Students with High Support Needs; and
g)Stafford, a Senior Occupational Therapist, Manual Handling Consultant at the Independent Living Centre (“ILC”).
It is relevant to observe at this early stage that none of the persons who gave evidence on behalf of the Director General were cross-examined. Their evidence has therefore been accepted by the Court insofar as it relates to factual issues, none of that evidence being inherently unbelievable or incredible. Further, the evidence of the Director General’s witnesses, not being challenged, has also been preferred to the evidence of Mr and Mrs Burns, who were extensively cross-examined, where there is a conflict on the factual material.
There were also two expert reports tendered: the O’Brien Harrop Access Report and the Keen Report, both of which were exhibits in the proceedings. The experts were not cross-examined. There were not significant differences between the opinions of the experts, and the Court has generally referred to the more detailed O’Brien Harrop Access Report in the following Reasons for Judgment.
The nature of Tahlia’s disabilities
On behalf of Tahlia it is said that her disabilities are:
a)significant vision impairment in both eyes;
b)suspected intellectual disability of unknown degree;
c)varus alignment of the left knee;
d)dysplasia of the right hip;
e)global developmental disability;
f)complex movement disorder;
g)muscular skeletal problems, including hyperextension of the knees; and
h)epilepsy, controlled by medication.
The Director General says that medical reports indicate that Tahlia has multiple disabilities, including:
a)cerebral palsy;
b)intellectual disability;
c)epilepsy;
d)cognitive speech and motor problems;
e)microcephaly;
f)visual impairment;
g)movement disorder; and
h)developmental delay.
For present purposes it is not necessary to determine the precise nature and extent of each of Tahlia’s disabilities. It suffices to observe that there is no dispute that Tahlia has multiple serious disabilities which fall within the definition of “disability” in s.4(1) of the DD Act.
Statutory framework
At the relevant times, s.22(2) of the DD Act provided that:
(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:
(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(b) … ; or
(c) by subjecting the student to any other detriment.
Section 23 of the DD Act provided that:
It is unlawful for a person to discriminate against another person on the ground of the other person's disability:
(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
(c) in relation to the provision of means of access to such premises; or
(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or
(f) by requiring the other person to leave such premises or cease to use such facilities.
Section 4(1) of the DD Act defines “disability” as follows:
"disability " , in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
Section 4(1) of the DD Act also defines “educational authority”, “educational institution” and “education provider” as follows:
"educational authority" means a body or person administering an educational institution.
"educational institution" means a school, college, university or other institution at which education or training is provided.
"education provider" means:
(a) an educational authority; or
(b) an educational institution; or
(c) an organisation whose purpose is to develop or accredit curricula or training courses used by other education providers referred to in paragraph (a) or (b).
Section s.5 of the DD Act described direct discrimination as follows:
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
“Reasonable adjustment” is defined under s.4(1) of the DD Act as:
[a]n adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
There is no definition of “adjustment” in the DD Act, but s.3.3 of the Disability Standards defines “adjustment” as follows:
A measure or action or a group of measures or action taken by the education provider that has the effect of assisting a student with a disability.
Section 1.4 of the Disability Standards defines “reasonable” as “in relation to an adjustment, has the meaning given by s 3.4” of the Disability Standards.
Section 3.4 of the Disability Standards provides as follows:
(1) For these Standards, an adjustment is reasonable in relation to a student with a disability if it balances the interests of all parties affected.
(2) In assessing whether a particular adjustment for a student is reasonable, regard should be had to all the relevant circumstances and interests, including the following:
(a) the student’s disability;
(b) the views of the student or the student’s associate, given under section 3.5;
(c) the effect of the adjustment on the student, including the effect on the student’s:
(i) ability to achieve learning outcomes; and
(ii) ability to participate in courses or programs; and
(iii) independence;
(d) the effect of the proposed adjustment on anyone else affected, including the education provider, staff and other students;
(e) the costs and benefits of making the adjustment.
(3) In assessing whether an adjustment to the course of the course or program in which the student is enrolled, or proposes to be enrolled, is reasonable, the provider is entitled to maintain the academic requirements of the course or program, and other requirements or components that are inherent in or essential to its nature.
Section 6 of the DD Act defined indirect discrimination as follows:
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.
The claims made on Tahlia’s behalf appear to include claims, poorly pleaded and particularised, that the Department contravened certain of the Disability Standards which commenced operation on 18 August 2005. It is unlawful for a person to contravene a Disability Standard: DD Act, s.32. The relevant Disability Standards relate, in broad terms, to reasonable adjustments, enrolment, participation, curriculum development and the provision of support services. Relevant Disability Standards are set out, where necessary, in more detail below.
For the purposes of the Disability Standards “disability”, “educational authority” and “educational institution” are defined in the same terms as the DD Act definition at s.4(1) of the DD Act: Disability Standards, s.1.4; Acts Interpretation Act 1901 (Cth), s.46(1)(b).
Matters in respect of which discrimination asserted
On behalf of Tahlia a number of matters were asserted which were said to constitute discrimination on the ground of disability, either directly or indirectly, or to be a breach of the Disability Standards or the Access to Premises Standards. As the Director General pointed out in the course of proceedings the pleadings on behalf of Tahlia were not entirely consonant with the matters asserted in the Points of Claim, and likewise the submissions initially made did not in all respects reflect what was in the Points of Claim. As the proceedings developed, and in particular in final submissions, certain matters previously asserted to be discrimination, or in breach of the relevant Standards, were not pursued, or were pursued differently.
Each of the matters asserted is set out and dealt with below.
Tahlia’s speech and failure to provide training in the use of the PODD book
It is alleged on behalf of Tahlia that she only spoke occasionally and communicated by using a communication book, known as a PODD book, and also communicated by use of her eyes and head.
It is alleged on Tahlia’s behalf that the Director General failed to provide adequate training to teachers and EAs at KPS in the use of the PODD book for Tahlia, and that that inadequate training resulted in:
a)teachers and EAs not communicating with Tahlia to the maximum extent possible; and
b)Tahlia not having access to the curriculum to the greatest extent possible, given her disabilities.
The Director General denies:
a)the applicant’s claims with respect to Tahlia’s speech and communication and says that:
i)Tahlia vocalised on occasion, but did not demonstrate any genuine speech, and did not demonstrate any degree of effective communication with the use of the PODD book; and
ii)given the degree of uncontrolled involuntary movement that Tahlia had, it was not possible to determine with any degree of uncertainty whether Tahlia was consistently communicating with the use of her eyes and head; and
b)that staff were inadequately trained in the use of the PODD book with Tahlia, and says that staff at KPS were provided with training in the use of the PODD book by the teachers at CSS and also visiting teachers from the Centre for Inclusive Schooling.
The PODD book is said to be a method and tool for developing and utilising augmented language input. It provides strategies to support the design, production and implementation of communication systems that enable genuine communication for a variety of functions in all daily environments: Mr Burns’ Affidavit at [125].
Mr and Mrs Burns assert that Tahlia communicates by the PODD book, and signals with her eyes and head, and understands basic English commands: Mr Burns’ Affidavit at [7] and annexures DB 2 and DB 5.
Mr Burns says that there was inadequate use of Tahlia’s PODD book: Mr Burns’ Affidavit at [125].
Mr Burns says that in the 2010 IEP it was stated that Tahlia’s PODD communication book would travel everywhere with her, and be available to her at all times: Mr Burns’ Affidavit at [126] and annexure DB 18. Mr Burns says that the PODD book could sit on the back of Tahlia’s walker or be carried by the EA, but that during most recesses and lunchtimes outside it was not with Tahlia, and that for most of 2010 the PODD book was not brought to the music room for music. Mr Burns says that despite noting at a 24 August 2010 meeting that the ILC would provide KPS with free training in the use of the PODD book the offer was never taken up by KPS: Mr Burns’ Affidavit at [127] and annexure DB 19. Mr Burns also says that the relief EAs were not trained in the use of the PODD book: Mr Burns’ Affidavit at [136].
Mrs Burns also says that in the first term of 2010 a relief EA was employed to relieve Ms Brindley, and that that relief EA told Mrs Burns that she did not know how to use the PODD book. Mrs Burns had to explain Tahlia’s likes and dislikes. Ms Burns says that Tahlia and she arrived late one day to an empty classroom and after 10 minutes the relief EA appeared, and Mrs Burns was told to do computer with Tahlia until her classmates returned, but the relief EA did not know the password and needed to find another EA, Ms Hill to assist with the computer. Mrs Burns was with Tahlia and used the PODD book to communicate. The relief EA witnessed Mrs Burns using the PODD book and did not ask any questions relating to it. After 30 minutes Tahlia’s classmates returned back to the class: Mr Burns’ Affidavit at [56].
Mr Burns says that during a case conference on 25 June 2010 Tahlia’s Year 1 teacher at CSS indicated that Tahlia’s communication and her ability to use the PODD book had deteriorated. Further, an issue arose at that case conference with respect to whether or not blinking should be accepted as a “yes” for Tahlia rather than using a voice or nod for “yes”, and notwithstanding Tahlia’s CSS Year 1 teacher explaining the importance of this to Ms Robinson, Tahlia’s Year 1 teacher at KPS, Ms Robinson refused to follow the instruction, as a consequence of which blinking was now ingrained in Tahlia: Mr Burns’ Affidavit at [138].
Mr Burns says that at KPS during 2011 Tahlia’s PODD book of over 140 pages was taken away from her and replaced with an inadequate single paged instruction sheet for toileting and computer lessons and for meal times. Mr Burns observed that Ms Lawrence, one of Tahlia’s EAs had not had any professional learning in relation to Tahlia’s PODD book: Mr Burns’ Affidavit at [143]-[144].
At a 2 November 2011 case conference questions arose concerning the use of the PODD book. In the detailed transition plan to provide for Tahlia in Year 3 plans had been made to train staff in the use of the PODD book: Mr Burns’ Affidavit at annexures DB 14 and DB 15. It was also noted that it was difficult to use the PODD book in conjunction with mainstream students: Mr Burns’ Affidavit at annexure DB 15. Mr Burns said that he asked questions about the distinction between a passport and the PODD book, and that he did not receive satisfactory answers, and it appeared that staff were unaware of what was on the back of the PODD book.
At a case conference on 24 August 2010 Mrs Burns suggested that KPS approach the ILC so that staff could be trained and advised how to use and implement Tahlia’s PODD book at school: Mrs Burns’ Affidavit at [49].
Mrs Burns says that the KPS staff had insufficient training with the PODD book and that on 3 March 2011 an incident was written in the teacher parent communication book which was removed from Tahlia’s bag. Mrs Burns says that on 2 March 2011 the staff failed to use or refer to the PODD book to ascertain why Tahlia was “playing up”, what was wrong or what Tahlia had to say about the matter: Mrs Burns’ Affidavit at [45]. Mrs Burns wrote a letter on 3 March 2011 to Ms Lawrence with a copy to Ms White indicating that:
… the reason you have given [for Tahlia sitting on the box chair rather than on the floor] was because Tahlia was playing up. I highly recommend the use of the PODD book at all times for effective communication and finding out her reasons. She wanted to tell you something and wanted you to use the PODD book. Tahlia wanted to say to you that she was experiencing pain in her mouth as her teeth are coming through. It would have been a great opportunity to use the PODD book and have a conversation with her. Tahlia has lots to say just like any other child. The PODD book is Tahlia’s voice and with this it will provide effective communication and better understanding between Tahlia and yourself and that situation would not arise.
Mrs Burns’ Affidavit at annexure LB 12.
Mrs Burns says that on 10 February and 5 May 2011 she mentioned to Ms White, and in the 5 May 2011 case conference, how the ILC could assist KPS in applying and using Tahlia’s PODD book: Mrs Burns’ Affidavit at [46].
On 5 May 2011 Mrs Burns says that she was surprised to see Ms White quickly take Tahlia’s PODD book instead of using the single sheet stuck on the table in the wet area for meals while people were observing. Mrs Burns says that the IEP states that Tahlia’s PODD book communication is to travel with her and be made available at all times. Mrs Burns says that she has observed that the single sheet stuck on the table for meals, and computer in the wet area previously, and her PODD communication book was hardly seen around her: Mrs Burns’ Affidavit at [30].
Mrs Burns says that on 17 May 2010 she spent half a day at KPS and noted the lack of the use of the PODD book during diary time and writing lesson. Ms Brindley copied Tahlia’s message in the communication book instead of using the PODD book to ask more questions and encourage communication with Tahlia: Mrs Burns’ Affidavit at [60].
Mrs Burns says that on 19 May 2011 two new EAs were feeding Tahlia. Mrs Burns was concerned that they were not adequately trained in the PODD, feeding or manual training, as Mrs Burns observed that they were unable to adequately communicate or feed Tahlia. Mrs Burns says that she had never seen these EAs before and never saw them again: Mrs Burns’ Affidavit at [48].
On 24 August 2011 Tahlia’s PODD communication book was not available at the Melville Swimming Pool: Mrs Burns’ Affidavit at [80].
Mrs Burns says that on 26 August 2011 Ms Lawrence was unable to use the PODD book to inform Tahlia that her swimming class was finished and that she was to go and shower and return to school: Mrs Burns’ Affidavit at [50].
Mrs Burns says that on 31 August 2011 Tahlia wanted to tell the swimming instructor that she had something to say with the use of her PODD book. Mrs Burns says that she had to request Ms Kennedy and Ms White who were talking together away from the pool to obtain the PODD book. Ms Burns also said that she had to walk into the pool in order for Tahlia to tell the instructor that she was feeling uncomfortable in the water as she had a “yucky burp” coming. Mrs Burns says that at CSS the PODD book was always placed at the poolside for easy access to promote communication: Mrs Burns’ Affidavit at [51].
Mrs Burns also says that in late August 2011 the Department of Education assigned a swimming instructor, who was also a qualified teacher, to Tahlia, who did not how to use the PODD book, but who was able to speak in AUSLAN (which is a sign language) which Tahlia could not use because she was visually impaired: Mrs Burns’ Affidavit at [52].
On 2 September 2011 the PODD communication book did not have the current and past teachers’ and EAs’ names updated, nor were Tahlia’s current 2011 classmates’ names updated despite updated names having been provided on 18 April 2011 to Ms White: Mrs Burns’ Affidavit at [81].
Mrs Burns says that on 2 November 2011 KPS removed the teacher parent communication book for a second time.
Mrs Burns says that in 2011 in the accessible toilet a single information communication sheet was stuck above Tahlia’s eye level on the wall next to the mirror. This single information communication sheet was not consistent with Tahlia’s PODD communication book, and comprised only 12 cells whereas in Tahlia’s PODD book there are 32 cells over two separate pages. Mrs Burns said that the information sheet was confusing for Tahlia: Mrs Burns’ Affidavit at [78].
Mrs Burns’ evidence was that Tahlia only spoke three words: “yes”, “dad” and “mum”, and that her vocabulary had not increase since 2009, although Mrs Burns said that Tahlia was “trying”: Transcript, 16 July 2013, pages 87-88.
Ms Norton, Tahlia’s pre-primary teacher at KPS, gave evidence that:
a)when Tahlia attended at CSS they endeavoured to elicit a turn of the head for “no” and a blink for “yes” from Tahlia, but that she never picked up the blink, and because of Tahlia’s lack of muscle control, her head always turned;
b)KPS tried to follow CSS but never got a definitive response from Tahlia, and despite talking to her all the time she did not know how much Tahlia understood, and Tahlia could not return the conversation; and
c)she watched Ms Burns demonstrating the PODD book with Tahlia, but that in Ms Norton’s view it was not authentic, and Ms Burns flicked through the pages at great speed and Tahlia had no impact upon the outcome.
See Ms Norton’s Affidavit at [20], [21] and [27].
Ms Norton gave evidence that she and another EA, Ms Draper, had a half day generic training session at CSS to introduce them to communication using the PODD book, where it was explained what the PODD book was for and how it was used. Ms Norton and Ms Draper were also shown videos of children using the PODD book. The children in the videos were not at Tahlia’s level as they were children who could sit and point to the pictures: Ms Norton’s Affidavit at [19].
Ms Robinson, Tahlia’s Year 1 teacher, gave evidence that she and Ms Brindley spent a morning at CSS observing Tahlia in her classroom. They also both attended a professional learning session provided and run by CSS for EAs and teachers working with children who use the PODD book both at CSS and mainstream schools: Ms Robinson’s Affidavit at [36].
Ms Robinson says that:
a)i) Tahlia never uttered any words;
ii)she did observe that Tahlia made noises, but they were not necessarily when Ms Robinson asked her a question, but were random or an expression of excitement;
iii)CSS wanted to teach Tahlia a “yes” and a “no” with a nod or a shake of Tahlia’s head, and that she went to CSS to observe, and CSS teachers spent a day at KPS;
iv)she did not witness any responses at CSS and that she was unable to elicit responses at KPS;
v)most of the time a blink was accepted as a “yes”, but often that was inconsistent; and
vi)responses would be accepted, but she could not say Tahlia had definitely understood the question: Ms Robinson’s Affidavit at [47]; and
b)Tahlia did not engage with other children, and that other children played around her while she sat: Ms Robinson’s Affidavit at [57].
Ms Brindley said that:
a)Tahlia had a lot of spontaneous movements, and that Ms Brindley often took such movement as a response, even though she could not be certain that it was in fact a response; and
b)there was never any clear communication with Tahlia using the PODD book, and Tahlia often just banged the PODD book: Ms Brindley’s Affidavit at [30].
Ms Galati gave evidence that she had seen Tahlia laugh and cry, but had never heard her speak, and that she had never communicated with Ms Galati in any way: Ms Galati’s Affidavit at [27].
Ms White gave evidence that the EAs (Ms Brindley, Ms Kennedy and Ms Lawrence) and she attended CSS towards the end of 2010 and observed Tahlia, paying particular attention to how she moved around the room, the prompts she was given, the use of the PODD book, feeding and toileting. Ms White says as the classroom teacher she did not feed and toilet Tahlia herself, but the EAs operated under her direction so she needed to be informed on those types of issues: Ms White’s Affidavit at [18].
Ms White gave evidence that Tahlia was unable to effectively communicate using the PODD book. Ms White said that she tried to follow the CSS approach of a nod for a “yes” and a shake for “no” but was never able to get a consistent response from Tahlia, or any response, and that whilst Tahlia responded to loud noises with a startled reflex she did not respond very well or consistently to her own name: Ms White’s Affidavit at [51] and [64]. Ms White further said that at no time was there any verbal communication from Tahlia, and that she never heard her say a word. Further, that Tahlia had very few interactions even with other children, and that she parallel played with children but never played with another child, and Ms White never saw her have any meaningful interaction with another child: Ms White’s Affidavit at [66]-[67].
Ms Kennedy gave evidence that she had not seen any firm evidence to indicate that Tahlia understood English very well, as Tahlia did not respond. Ms Kennedy said that she spoke to Tahlia at length and never got anything back, and that she tried many different strategies but it made no difference. Ms Kennedy said that she never heard Tahlia say any words, and that the only time she heard noise from her was when she did not want any more water or food, at which time she would also put up her arm. Ms Kennedy said that despite trying very hard to get a response from her using the PODD book, Tahlia did not communicate through the PODD book. Ms Kennedy said that when Ms Burns used the PODD book with Tahlia, Ms Burns was directing Tahlia. See Ms Kennedy’s Affidavit at [27], [29] and [31].
Ms Kennedy gave evidence that she attended CSS at the end of 2010 with Ms White (who was Tahlia’s Year 2 teacher) and Ms Lawrence (the main relief EA) for half a day to observe whilst Tahlia was in the classroom. Ms Kennedy said there were about five children in the classroom and they all sat on boxes in an arch around the teacher who had a PODD book. Ms Kennedy said they all had an assistant of their own who sat behind them: Ms Kennedy’s Affidavit at [14]-[15]. Ms Kennedy says that she did not have training on how to use the PODD book: Ms Kennedy’s Affidavit at [32].
Ms Hill said that she never heard Tahlia speak, and that Tahlia laughed and cried, but that happened randomly and at no particular time. Ms Hill also said that she got no response from Tahlia on the PODD book: Ms Hill’s Affidavit at [16] and [22].
Ms Hill gave evidence that she did some PODD book training at CSS. She recollects being shown a film showing an assistant/teacher working with a child painting using a PODD book. She then did a role play with others using the PODD book. Ms Hill says that it was difficult with Tahlia because she did not appear able to see the pictures, respond to the verbal cues and that the wait time was very long: Ms Hill’s Affidavit at [31].
Ms Ballantyne, a specialist Teacher Conductor, and the Conductive Education Services Coordinator at CSS, said that Tahlia would vocalise and verbalise, but that she never heard her say words as such and that she did not talk: Ms Ballantyne’s Affidavit at [34].
Ms Ballantyne gave evidence that she created a five day training package for KPS staff. She says that CSS invited the KPS staff to come to CSS because it was much easier to train them there. Ms Brindley came to CSS for five days and got an overview on Tahlia in the classroom, how she accessed the curriculum, communicated, ate, drank, went to the bathroom, transferred, got up and down to the floor and so on. Ms Ballantyne says that after five days a person was not fully equipped to go and replicate what was done at CSS, but it gave the person an idea of what Tahlia was capable of doing. Ms Ballantyne says that Ms O’Neill, a teacher, Ms Alicia Bani, a teacher, and Ms Theodorsen, a speech pathologist, and she, also spent time at KPS to assess how Tahlia would access the same things in the KPS environment. They looked at the toileting, as did the physiotherapist and occupational therapists. Ms Ballantyne says that they would come to “a consensus on something” and then Mrs Burns would change it: Ms Ballantyne’s Affidavit at [27]-[28].
Ms Fitzpatrick, a Teacher Conductor and Communication Coordinator at CSS, said that the PODD book was designed so that it was likely to move on to the next place if Tahlia said yes, and that would occur automatically. Ms Fitzpatrick went on to observe that:
a)you had to be trained to recognise Tahlia’s movement and to be able to distinguish between what is a “yes” and what is a “no”, and that that was quite time consuming;
b)you had to be trained how to help scaffold the short messages that Tahlia was able to get out;
c)at times Tahlia’s sentence structure was a combination of two to three symbols at the very most, and more frequently, it was a one word answer if it was in response to a question by a teacher or EA; and
d)she most definitely got a response from Tahlia in the form of nods and shakes, but that was something that had developed over a number of years, and was not clear at first, but was rather a learnt thing which Tahlia had to be taught.
See Ms Fitzpatrick’s Affidavit at [30]-[32].
Ms Henderson (a very experienced teacher of the disabled) said that Mr and Mrs Burns told her that they felt that Tahlia was able to use the PODD book to communicate. Ms Henderson said that that was not her experience of it as a teacher, and that she used the PODD book with Tahlia but did not get any responses, and that in terms of looking for a response, she was looking for clarity of being able to follow an instruction and find an answer: Ms Henderson’s Affidavit at [41].
Consideration – Tahlia’s speech and failure to provide training in the use of the PODD book
The Court notes that although there was much evidence concerning the “use” of the PODD book, the only allegations in the Points of Claim are that:
52.The inadequate training of staff in the use of the PODD book has resulted in:
(i)Teachers not communicating with the Applicant to the maximum possible extent;
(ii)The Applicant not having access to the curriculum offered by the Respondent at KPS to the greatest extent possible, given her disabilities.
The evidence of the parents with respect to Tahlia’s use of the PODD book was somewhat contradictory. Mr Burns suggested that Tahlia found it easier to use the PODD book when no distractions were present, whereas Mrs Burns said that Tahlia was not distracted, at all, when using the PODD book.
Tahlia’s teachers at KPS indicated that as often as not they did not get a response at all from Tahlia when using the PODD book.
The evidence establishes that there was training of several teachers and EAs from KPS in the use of the PODD book. There is no independent expert evidence that Tahlia is able to communicate using the PODD book, or that further training of the KPS teachers or education assistants would have made any difference to Tahlia’s means or manner of communication, either with or without the PODD book. In relation to the alleged failure to train teachers and EAs in the use of the PODD book, there is no independent expert evidence as to what, if anything, might have been achieved by that training. There is no evidence as to what further training might properly have been undertaken, or whether that training would have made any difference in terms of Tahlia’s ability to, or willingness to, communicate, or the teachers or EAs’ capacity to understand what, if anything, Tahlia might have been endeavouring to communicate by use of the PODD book. In the absence of expert evidence, difficulties alleged to have arisen in relation to the use of the PODD book for communication purposes by Tahlia, simply cannot be made out.
There is no, or no sufficient, evidence to establish any basis for a finding that Tahlia was discriminated against in relation to the use of the PODD book at KPS. There was no expert evidence about the effect, if there be an effect, of the manner in which the PODD book was used at KPS by the teachers and education assistants concerned. It follows that there is no basis for asserting that Tahlia was denied access to, or had limited access to, a benefit provided by an education authority, or that any detriment was suffered as a consequence of the means and manner of use of the PODD book.
In all of the above circumstances, there is no basis for the Court to find that Tahlia was discriminated against on the basis of her disability in relation to the means and manner of use of the PODD book to communicate with her or that there was a lack of teacher and EA training in the use of the PODD book, or that there was any breach of the Disability Standards in relation thereto.
Use of a box chair
It is alleged that because of her disabilities Tahlia required the use of a box chair at KPS to enable her to sit upright or behind a desk and while eating.
The Director General denies the applicant’s claims with respect to the use of a box chair at KPS and says that:
a)in early 2010 the applicant’s parents supplied a box chair for Tahlia to use in the classroom at all times. Staff at KPS raised concerns about the suitability of the box chair and whether it provided Tahlia with sufficient support;
b)in early to mid-2010 therapists from Rocky Bay Inc, then a disability service provider for Tahlia, suggested a Kelly chair for Tahlia on the basis that it would provide her with better support. Tahlia’s parents then refused the Director General access to advice from medical specialists and therapists concerning the appropriate type of chair for use by Tahlia in the classroom; and
c)the box chair was heavy and difficult for the EAs to move around, and in September 2010 the Principal sought to order a new box chair, at KPS’s expense, as it was considered a spare box chair would be useful as staff would not have to struggle so much to move it around. Tahlia’s parents complained and refused their permission for KPS to purchase a second box chair.
Mr and Mrs Burns provided a custom box chair and cut out table to KPS until 12 October 2010 when KPS received their own box chair and table to be used by Tahlia: Mr Burns’ Affidavit at [77].
Mr Burns described the box chair as being one with handles on the side, that is, either side, for Tahlia to support herself with. Mr Burns said that while using this chair Tahlia was able to maintain her concentration and sit with good posture. By contrast Mr Burns says that when Tahlia trials chairs using restraints she slumps and has difficulty concentrating. Consequently, Mr Burns (and Mrs Burns) do not agree that Tahlia needs a chair with restraints.
Mr Burns asserted that a report by an occupational therapist, Ms Snowdon, from SITS Occupational Therapy, supported the Burns’ assertion that Tahlia did not need a chair with restraints (“Ms Snowdon’s Report”, which appears at Mr Burns’ Affidavit annexure DB 29). The Court notes that a careful reading of Ms Snowdon’s Report indicates that it makes no recommendation or comment in favour of Tahlia not having a box chair with restraints. Ms Snowdon does observe that Mr and Mrs Burns reported that Tahlia did not like having straps on her seating and tends to fight against those, but also went on to observe that “it is unlikely that Tahlia will remain seated at the back of a seat without a lap strap if lateral support is provided”: Mr Burns’ Affidavit at [84] and annexure DB 29.
Mr Burns says that after a meeting with Ms Moss, the Director of Schools for South-East Metropolitan, on 8 July 2010 Ms Moss agreed that Tahlia should have a box chair at KPS so that Mr and Mrs Burns did not have to transport the box chair to and from school: Mr Burns’ Affidavit at [89].
Ms Moss’ 9 July 2010 Letter states that:
You have agreed to arrange for a step suitable for Tahlia’s use in the disabled toilet at … [KPS] to be made available and also a box for Tahlia’s seating that may stay permanently at … [KPS]. If you could progress this as soon as possible it would be appreciated. If funding for this purpose is an issue, please contact Ross and he will arrange payment.
Mr Burns’ Affidavit at annexure DB 31.
In March 2011 Mr Burns says that Ms White told Mr and Mrs Burns that she was happy with Tahlia’s use of the box chair and the way that the Tahlia sat in the chair: Mr Burns’ Affidavit at [91].
Mrs Burns says that at the commencement of the 2010 school year Tahlia had to sit in a normal chair which failed to provide proper support resulting in Tahlia slumping and that she took a box chair and cut out table to KPS during the first term of 2010. The cut out table stayed at KPS until KPS got its own cut out table in the middle of second term. The box chair was taken to school by Mrs Burns until 12 October 2010 when KPS received their own box chair: Mrs Burns’ Affidavit at [34].
Mrs Burns asserts that during 2010 Ms Robinson contacted a service provider, Rocky Bay, and organised a meeting without her knowledge or consent, and that Ms Robinson did not consult Mr and Mrs Burns concerning the purpose of that meeting. Mrs Burns asserts that the occupational therapist who attended the meeting presented photos of a Kelly chair for Tahlia without consulting Mrs Burns or assessing Tahlia’s needs, and that the occupational therapist had not met Tahlia or assessed Tahlia prior to the meeting, and that Mr and Mrs Burns were not consulted as to whether the adjustment would be beneficial: Mrs Burns’ Affidavit at [37].
Ms Galati gave evidence that at KPS Tahlia sat on a box which Ms Galati believed was intended to make her concentrate. Ms Brindley would sit behind Tahlia holding her up. Ms Galati said she was amazed at how this was done because she would have found it exhausting: Ms Galati’s Affidavit at [45], and see also [46]-[49].
Ms Robinson gave evidence that the box looked very uncomfortable for Tahlia and did not provide her with back support. Ms Robinson said it was intended to help her sit and keep her feet down on the floor, but Ms Brindley never left Tahlia alone on the box chair. An EA or a teacher was always beside Tahlia when she was on the box chair: see Ms Robinson’s Affidavit at [72]-[75].
Ms White gave evidence that:
a)at the beginning of 2011 Mrs Burns told her that Tahlia was required to use the box chair for feeding, but the box chair did not have any back support and Tahlia continuously threw herself backwards onto the EA, while the EA was trying to support her while feeding her at the same time. Ms White thought that it was very physically demanding for the EA, and that following an assessment by an occupational therapist, two EAs were brought in to feed Tahlia, one trying to keep her body in the right position while the other fed her: see the Affidavit of Ms Stafford, annexure DS 1. Tahlia sat on the box when at CSS during learning activities, but that was interspersed with sitting on the ladder chair. At KPS Mr and Mrs Burns required Tahlia to sit on the box chair in the classroom and for feeding: see Ms White’s Affidavit at [22]-[23]; and
b)at meetings with Mrs Burns early in 2011 Mrs Burns said to Ms White that she required Tahlia to sit on the box chair in class, except when other children were sitting on the floor. Ms White said that there was no medical or therapist reports to substantiate the use of the box chair, but that Mr and Mrs Burns insisted on its use. In the beginning Ms White thought that Tahlia sat quite well on the box chair, but then she would throw herself back. Ms White wanted the help from physiotherapists and occupational therapists as to appropriate seating arrangements, but Mr and Mrs Burns denied access to the specialists: Ms White’s Affidavit at [90].
Ms Ballantyne gave evidence that whilst at CSS Tahlia sat on a slatted box/stool. She described the slatted box/stool as a wooden box with slats on the top, and that Tahlia sat on it beautifully. It required her to work her muscles. Because it was slatted, it was not very comfortable so she never sat in a bad position because it required her to constantly correct and work on her posture. Ms Ballantyne said that Mr and Mrs Burns did not want Tahlia to sit on the slatted box/stool at KPS as they wanted her to sit on the same equipment as the other students, who sat on little school chairs. Ms Ballantyne said that the little school chairs were not the right shape, and would not assist Tahlia’s posture as she would slump. The therapist from Rocky Bay suggested that Tahlia use a type of Kelly chair at KPS which had handles and was better for Tahlia’s safety and security in the new environment at KPS: Ms Ballantyne’s Affidavit at [37].
Ms Henderson gave evidence that when she spoke of integration it meant making children with disabilities like Tahlia’s appear to be as normal as other children in the group, so that if a person was to walk into the classroom and see the children all sitting on the floor listening to a story, it might take a little time to find that Tahlia had an EA sitting behind her giving her support to sit up straight because she did not have the power to do that herself. Ms Henderson said that Mr and Mrs Burns would not allow KPS to do that because when the children all sat on the floor for a story, Tahlia had to sit on a big blue box which was a box that had been bought as part of the conductive education programme from CSS. Tahlia sat on the big blue box in the middle of a group of children because Mr and Mrs Burns felt she concentrated better. Ms Henderson said that she never saw any evidence of that, and never got the opportunity to put in to practice any kind of programme which would have changed Tahlia’s sitting behaviour. Ms Henderson’s view was that, given the chance, Tahlia’s behaviour could have been modified sitting on the floor with her peers: Ms Henderson’s Affidavit at [35]. Ms Henderson said that she saw Tahlia sitting on a box on a number of occasions when she was working with her one-to-one, and also on a number of occasions when she joined Tahlia’s class group for activities. In Ms Henderson’s view the box was totally inappropriate: it belonged at CSS and not at KPS. In Ms Henderson’s view Tahlia had the capacity to sit on a chair, and KPS put all kinds of cushions around to make her more comfortable and that when Ms Henderson was working with her on a one-on-one basis she concentrated just as well sitting on a chair as anything else: Ms Henderson’s Affidavit at [36].
Mr Lin made efforts to get a box chair provided by KPS: see Mr Lin’s Affidavit at [129] and annexures DL 49, 50 and 51. Those efforts were ultimately successful, KPS providing a box chair in October 2010.
Consideration – use of a box chair
The evidence indicates that Tahlia had access to a box chair at all times in 2010 and 2011 at KPS. The arrangements with the box chair were largely dictated by Mr and Mrs Burns, until such time as KPS arranged a second box chair. It is apparent that there were difficulties in relation to the arrangements with respect to the provision of a box chair, or alternative kind of chair, but in the Court’s view those difficulties were as a consequence of miscommunication between KPS staff and Mr and Mrs Burns, and as much was acknowledged in final submissions by Senior Counsel for Tahlia, and that the issues which arose were not matters which arose because of Tahlia’s disability, and did not involve discrimination against Tahlia on the ground of her disability, or the denial to her of any benefit, or the subjecting of her to any detriment, because she was not without a box chair at any stage. It is apparent that there were different views about the efficacy of the box chair, and whether another type of chair might have been appropriate, or whether additional support was needed in relation to the box chair. There is, however, no, or no sufficient, evidence to demonstrate that Tahlia was discriminated against in relation to the use of the box chair, particularly in circumstances where its use was primarily dictated by Mr and Mrs Burns.
Reluctance to enrol Tahlia at KPS
It is alleged that the Principal of KPS, Mr Lin, was reluctant to agree to the enrolment of Tahlia at KPS in 2009: see Points of Claim at [29].
The Director General denies that there was a reluctance to enrol Tahlia at KPS in 2009. The Director General asserts that Mr Lin advised Mr Burns on two occasions in 2009 that there was a process that needed to be followed in respect to enrolment as set out in a Framework for Eligibility Criteria and Enrolment Processes in Education Support Schools and Centres 2008 policy for Department of Education schools such as KPS.
On 26 June 2008 an application for enrolment for Tahlia at KPS was made: Mr Burns’ Affidavit at [10] and annexure DB 6.
In response to the application for pre-primary enrolment Mr Burns received a handwritten note on KPS memo paper dated 30 June 2008 from Mr Lin. That memo said as follows:
I spoke with John Exeter [the Principal at CSS] about Tahlia – 2009 and there are a number of issues to be addressed:
· staffing problems at Carson Street
· alternative placement policy – new, how will it work?
· maximum EA time may be only 0.70 FTE
· full-timers may be given preference at Carson Street
· 60 on the wait list for places
Please discuss with me and talk to Carson Street Principal and Level 3 Coordinator when she returns.
Mr Burns’ Affidavit at annexure DB 7.
In August 2008 Mr and Mrs Burns received a letter accepting Tahlia into kindergarten, and not pre-primary, for 2009, and although Mr Burns informed KPS administration of the error a letter of correction was never received: Mr Burns’ Affidavit at [11] and annexure DB 8.
At some point CSS agreed on dual placement and Mr Burns asked the secretary at KPS what he needed to do for Tahlia to be placed in a pre-primary class. Mr Burns was told that he would need to put in an application. Mr Burns responded that he already a letter of acceptance. The secretary checked her file and it was missing, but it transpired that Mr Lin had the KPS copy and that he had taken it out of the file: Mr Burns’ Affidavit at [12]-[14].
Mr Burns asserts that Mr Lin was reluctant to enrol Tahlia because she did not then live in the catchment area for KPS. Mr Burns says that he was aware that a teacher and an education assistant at KPS had children and grandchildren attending KPS who did not live in the KPS catchment area: Mr Burns’ Affidavit at [15]-[16].
Mr Burns says that at a 3 September 2009 meeting Ms Monley asked if Mr and Mrs Burns were going to move to the area, and Mr Burns indicated that they had planned to eventually. Mr Burns also says that during a meeting with Mr Lin in 2009 Mr Lin became aggressive, enquiring whether Mr and Mrs Burns intended to force Tahlia upon KPS. Mr Burns said that he was made to feel that Tahlia was not welcome at KPS: Mr Burns’ Affidavit at [17]-[18].
A meeting was held on 3 September 2009 attended by Mr and Mrs Burns, Ms Goodier, Mr Lin, Mr Exeter, Ms Fitzpatrick, Ms Norton and Ms Monley. Mr Burns says that he explained that he and Mrs Burns wanted Tahlia to attend mainstream school so that she could learn from other students, and that because he worked at KPS picking up and dropping her off would be easy, enabling Mrs Burns to eventually work. Mr Burns says that the mediator at the meeting decided that Tahlia should be allowed to attend KPS. He says that Mr Lin proposed a trial period and term agreement, attempting to make acceptance of Tahlia’s enrolment conditional, but that the trial period suggestion was not accepted by the mediator. Mr Burns also says that KPS wanted Tahlia to repeat pre-primary, but the mediator agreed that Tahlia would not repeat pre-primary: Mr Burns’ Affidavit at annexure DB 9, being an agenda for a case conference on 3 September 2009.
A Record of Interview, which appears to be a summary of matters discussed at the 3 September 2009 meeting indicates that the preferred model of enrolment was enrolment at CSS with two days socialisation at Kardinya, followed by dual enrolment with three days at CSS and two days at KPS: Mr Burns’ Affidavit at annexure DB 10.
On 7 August 2009 Mr Lin wrote to Mrs Burns indicating that Tahlia had been accepted for a place in the KPS pre-primary programme for 2010. Subsequently, on 9 November 2009, Mr and Mrs Burns wrote to Mr Lin indicating that they wanted Tahlia to attend KPS in Year 1 for three days a week and CSS for two days a week in 2010. Mr and Mrs Burns also indicated that they were “very pleased with improvements we have seen in Tahlia this term, including her overall awareness”: see Mr Burns Affidavit at annexure DB 11.
It is common ground that Tahlia subsequently commenced pre-primary classes at KPS in Term 4 of 2009.
Mr Lin gave evidence that he wanted to ensure that KPS was appropriately resourced, and that it was appropriate for Tahlia to come to KPS. Also, Mr and Mrs Burns lived, at that time, in Canning Vale which was outside the local intake area for KPS, and lived very close to two primary schools with education support centres attached where Tahlia could have accessed both mainstream and special needs programmes: see Mr Lin’s Affidavit at [16]-[17] and [34].
Ms Monley gave evidence that she had no qualms about KPS enrolling Tahlia, but the question was whether KPS had suitable facilities for Tahlia: see Ms Monley’s Affidavit at [9]-[11].
Ms Henderson gave evidence that KPS had a long and rich history of assistance to special needs children, and that it appeared to her that KPS was “only too willing to implement anything that I suggested”. Further, Ms Henderson said that both the Principal (Mr Lin) and Deputy Principal (Ms Monley) were “really keen” to achieve outcomes and the teacher, Ms Robinson, was one of the best that she had ever worked with. Ms Henderson thought that Ms Robinson was undermined throughout her time at KPS by the situation she found herself in: Ms Henderson’s Affidavit at [22].
Consideration
It is relevant to note the provisions of s.16 of the SE Act which are as follows:
16. Information required when applying to enrol
(1) A person who wishes to make an application for enrolment at a school is to provide the following information to the extent that he or she is asked to do so —
(a) the date of birth of the enrollee; and
(b) the names and usual place of residence of —
(i) the enrollee;
(ii) where the enrollee is a child —
(I) the parents; and
(II) any adult person, not being a parent, who is responsible for the child;
and
(c) where the enrollee is a child, details of any provision in force at law —
(i) for the long-term care, welfare and development of the child; or
(ii) for the day to day care, welfare and development of the child;
and
(d) where applicable, the name of the school at which the enrollee is enrolled or was last enrolled; and
(e) the country of citizenship of the enrollee and, where applicable, whether the enrollee has the right to reside in Australia; and
(f) the vaccination status of the enrollee; and
(g) details of any condition of the enrollee that may call for special steps to be taken for the benefit or protection of the enrollee or other persons in the school; and
(h) any other information prescribed by the regulations.
(2) The principal may require documentary evidence to be provided in support of any information supplied by the applicant.
Pursuant to s.16(1)(g) of the SE Act Mr and Mrs Burns were required to provide KPS with details of any condition that Tahlia had that called for special steps to be taken for her benefit or protection, or the benefit or protection of other persons in KPS, which must include other students, and the staff of KPS. Section 16(2) of the SE Act provided that Mr Lin might require documentary evidence to be provided in support of Tahlia’s enrolment.
In the Court’s view, the evidence does not disclose a reluctance on the part of KPS to enrol Tahlia in 2009. The unchallenged evidence of Mr Lin and Ms Monley, which the Court accepts, is that there was no such reluctance. The evidence of Ms Henderson was that KPS had a long and proud history with special needs students. The evidence discloses an appropriate level of request from KPS for information concerning Tahlia’s disabilities, in an endeavour to ensure that if Tahlia were to be enrolled at KPS, KPS might provide appropriate educational services to Tahlia. It is not apparent on the evidence that KPS was seeking to deny Tahlia access, or seeking to limit Tahlia’s access, to any benefit that might be provided to her by KPS, on the ground of Tahlia’s disability, or that KPS was seeking to subject Tahlia to any other detriment. In the Court’s view, the evidence does not disclose any reluctance to enrol Tahlia at KPS, but rather a desire on the part of those, both at KPS and CSS, and on behalf of the Director General more broadly, to ensure that Tahlia was educated in an environment appropriate to her educational and physical needs.
Mr Lin gave evidence that on 3 November 2011 he wrote to Mr and Mrs Burns stating that he intended to require Tahlia to attend Carson Street until the issues relating to the tasks Mr and Mrs Burns were requiring staff to perform, and the issue of not being provided with access to independent professional advice from Tahlia’s medical specialists and therapists concerning her care and management had been resolved: Mr Lin’s Affidavit at annexure DL 52. Mr Lin said that he wanted to give Mr and Mrs Burns an opportunity to advise of any factors or reasons why he should not take the proposed action. Mr Lin sent a corrected copy of the 3 November 2011 letter: Mr Lin’s Affidavit at annexure DL 53. See also Mr Lin’s Affidavit at [133]-[134] and annexure DL 52.
Ms Collins gave evidence that by letter dated 28 February 2012 she wrote to Mr and Mrs Burns advising that the Department was considering cancelling Tahlia’s enrolment at KPS under s.83(2)(b) of the SE Act on the grounds that “an appropriate education programme can no longer be provided at the school for the child”. One of the grounds of consideration was that Mr and Mrs Burns continued to refuse to provide KPS with access to independent professional advice from Tahlia’s medical specialists and therapists concerning her care and management while at KPS. Further, an assessment by the Department’s Employee Support Bureau in April 2011 identified that practices at KPS placed employees at a moderate to high risk of physical injury when supporting Tahlia. As a result staff had withdrawn specific services to Tahlia on advice from their union, United Voice, making attendance untenable. Ms Collins asked Mr and Mrs Burns to meet with the Department’s Manager of Student Support, Statewide Services to discuss the issue of whether an appropriate educational programme could be provided for Tahlia at KPS and to hear their views and wishes in relation to Tahlia. Ms Collins also requested that Mr and Mrs Burns respond to her letter by 9 March 2012 informing her of any reasons or circumstances why Tahlia’s enrolment should not be cancelled. Finally, Ms Collins directed that Tahlia attend CSS until the issues regarding training, equipment and communications issues were able to be resolved: see Ms Collins Affidavit at [5]-[6] and annexure MAC 1. See also annexures MAC 1 to MAC 8 (inclusive).
A number of witnesses gave unchallenged evidence that when Mrs Burns and Tahlia attended at KPS after Mr and Mrs Burns had been told that Tahlia should attend CSS from 9 November 2011, that there was no untoward contact, aggression or rudeness by any member of KPS staff, and in particular no such conduct by Mr Lin: Ms Monley’s Affidavit at [112]; Ms Mervyn’s Affidavit at [22]; Mr Lin’s Affidavit at [207-212].
Consideration – Year 3 enrolment not permitted
Section 16(1)(g) of the SE Act provides that a school principal is entitled to ask for the provision of documents related to the enrolment of a child at a school. It was suggested in argument by Senior Counsel for Tahlia that s.16(1)(g) of the SE Act might be invalid by reason of inconsistency with the DD Act or Disability Standards: Constitution, s.109. In the Court’s view this is not so: s.16(1)(g) of the SE Act merely provides the Director General, or more particularly the principal of a school, with the capacity to obtain information relevant to a child’s enrolment. It is not directed at a person with a disability, and a child who is intellectually gifted, or a child sporting or entertainment prodigy, might equally be asked to provide information to a school under s.16(1)(g) of the SE Act. Further, in order to make any necessary reasonable adjustment, the information to be provided under s.16(1)(g) of the SE Act is necessary. The provisions of the DD Act, Disability Standards and Access to Premises Standards can, and must, be read together, and are not inconsistent.
By November 2011 KPS had made various efforts to resolve the issues concerning Tahlia, and in particular her mobility around the KPS site, and her placement in the classroom, but Mr and Mrs Burns refused to provide specialist medical and therapeutic information that they had received concerning Tahlia’s treatment. By November 2011 KPS had advised that the union representing the EAs considered that some of the tasks that were being performed by the EAs for Tahlia were putting the EAs health and safety at risk: Mr Lin’s Affidavit at [203]-[206] and annexures DL 52 and DL 53. On 3 November 2011 KPS issued a letter to Mr and Mrs Burns requesting that Tahlia be taken to CSS pending resolution of the issues concerning Tahlia’s mobility and handling.
Senior Counsel for Tahlia did concede that in relation to the medical and therapeutic information that the refusal to provide medical information to KPS might in part be attributed to an over-reaction by Mr and Mrs Burns to the incident with the occupational therapist who, to them, appeared to turn up without warning. See Transcript, 18 July 2013, page 172.
The Director General did not refuse to enrol Tahlia in Year 3 at KPS, but rather indicated that until such time as the issues at KPS were resolved, Tahlia should attend CSS. Mr and Mrs Burns manifestly did not agree with what was suggested by the Director General, and Mrs Burns continued to attend at KPS with Tahlia, and were refused access by KPS staff, notably Mr Lin and Ms Monley.
On the evidence, the Court is satisfied that the reason for the refusal to allow Tahlia to attend at KPS in 2012 was not Tahlia’s disability, but the Director General and KPS’s concern with respect to the health and safety of teachers and EAs, in particular, and students, a concern which was not alleviated by the refusal of Mr and Mrs Burns to provide appropriate information from Tahlia’s treating medical and therapeutic professionals which might have assisted the Director General to determine whether or not Tahlia could attend KPS again, or whether there was some other appropriate course of action.
Because the refusal to allow Tahlia to attend KPS in the early part of 2012 was based on health and safety concerns rather than being because of Tahlia’s disability there was no discrimination as alleged: Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133; (2003) 78 ALJR 1; (2003) 77 ALD 570 at [13] per Gleeson CJ. This finding renders it unnecessary to consider making an order with respect to Tahlia’s re-enrolment at KPS.
Remedies
The Court has dealt with some of the remedies sought in the course of the Reasons for Judgment which appear above, and some of the remedies sought fall away by reason of findings indicating that there was not discrimination on the ground of disability, or a breach of the Disability Standards or Access to Premises Standards. Save for an apology and damages, it is unnecessary to consider the other remedies sought.
Apology
An apology is sought as a remedy.
The Director General argues however that there is no evidence that an apology would provide any redress of loss or damage.
Section 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) provides that:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
The Court does have discretionary power to order an apology to be provided by a respondent in human rights proceedings: Grulke v K C Canvas [2000] FCA 1415 at [4] per Ryan J; Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352; (2001) EOC 93-168 (“Creek”). In Creek at [35] per Kiefel J the Federal Court would have ordered a short apology if the discrimination complaint had been made out, so as to vindicate the applicant in the eyes of her community.
In Cooke v Plauen Holdings Pty Ltd trading as Bica Prolab [2001] FMCA 91 the applicant was held to be “entitled to a formal apology”, an apology being “frequently worth more to an applicant than money”: at [43] per Driver FM. Where an apology is offered if liability is found, it may be ordered: Escobar v Rainbow Printing Pty Ltd (No. 2) [2002] FMCA 122; (2002) 120 IR 84; (2002) EOC 93-229 at [43] per Driver FM. In Campbell v Kirstenfeldt [2008] FMCA 1356; (2008) EOC 93-515 (“Kirstenfeldt”) at [40] per Lucev FM it was said, citing Forbes v Commonwealth of Australia [2003] FMCA 140; (2003) EOC 93-288 and Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34, that:
In relation to that conduct the applicant has sought a written apology. The Court has power to order an apology be made. Mr Kirstenfeldt gave evidence that he was prepared to give an apology to Mrs Campbell. In those circumstances, an apology in the terms sought by Mrs Campbell, which is set out above, is considered by the Court to be appropriate.
Where it is plain that an apology will not come freely from a respondent, a court may decide not to exercise its discretion to order what would be a forced apology: Jones v Toben [2002] FCA 1150; (2002) 71 ALD 629; (2002) EOC 93-247 at [106] per Branson J; Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243; 120 FLR 243; (2002) 71 ALD 567; (2002) EOC 93-238 at [245] per Hely J; Lee v Smith & Ors (No. 2) [2007] FMCA 1092; (2007) EOC 93-465 at [16] per Connolly FM.
There is, therefore, no doubt that the Court has discretionary power to order that an apology be made.
In this case, there is no conduct of the kind that saw an apology awarded in Kirstenfeldt, which involved virulent racist abuse. Nor is there any kind of systemic institutional conduct over a long period which might be seen to require an apology. Nor is there any form of physical assault which again, might be seen to require an apology. The discrimination which has been found in this case primarily arises because of the features of the built environment at KPS and a bureaucratic system which whilst endeavouring to deal with the problems for a disabled child in the built environment, has simply not acted or adapted quickly enough in respect of the limited issues in respect of which discrimination has been found. In the Court’s view there was a clear willingness on the part of KPS and the Department to grapple with the issues in respect of which discrimination has been found, but an inability to remedy them, either at all or within a reasonable time. In those circumstances, that inability, and the delay in dealing with the issues which arose, is not such as to warrant an apology. That finding is made having regard to the circumstances of this case, and the evidence of the persons involved, and does not foreclose the possibility of a case where the conduct, or systemic institutional inertia, might be such as to warrant an apology being ordered.
Damages
Insofar as disability discrimination has been found damages might be awarded, on the basis of general tort principles applied, with some flexibility. In this case, the Director General however argues that there is:
a)no particularisation of damages; and
b)no evidence of loss or damage that could be subject to any sort of award.
It was submitted on Tahlia’s behalf that the assessment of damages was in the nature of assessments of general damages, with the observation being properly made by her Senior Counsel that general damages in disability discrimination cases under the DD Act tended to be on the low side compared to normal torts damages.
In Clarke v Catholic Education Office & Anor [2003] FCA 1085; (2003) 202 ALR 340; (2003) 76 ALD 84; (2004) EOC 93-310 (“Clarke”) the Federal Court, at first instance, observed that damages were compensatory and no more: Clarke at [83] per Madgwick J. In Clarke the educational authority concerned had been found to have indirectly discriminated against a student by requiring him to receive teaching at one of their schools without the assistance of an AUSLAN interpreter. In awarding damages of $20,000 plus $6,000 in interest for the hurt caused to the student, the Federal Court said as follows:
Fortunately, as matters transpired, the injury to … [the student] has probably not been great: the injury to his parents’ sensibilities may have been acute but the damages are not to compensate them. They are to compensate the "aggrieved person", namely … [the student].
…
In the scheme of things, the harm to … [the student] is likely to prove to have been transient and not extreme. There is no warrant to inflate damages. In my view $20,000 together with some allowance for interest on three quarters of that sum would be ample compensation.
Clarke at [84] and [86] per Madgwick J.
On appeal, the sum of damages was not disturbed, and was described as “relatively modest”: Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121; 81 ALD 66 at [134] per Sackville and Stone JJ.
Historically, damages in disability cases have not been excessive as to quantum. A visually impaired person with a guide dog asked to sit outside on her next visit to a restaurant, and held to have been discriminated against on the basis of her disability, was awarded $3,000 by way of compensation for injured feelings, distress and embarrassment: Haar v Maldon Nominees [2000] FMCA 5; (2000) 184 ALR 83.
In Travers v State of New South Wales [2001] FMCA 18; (2001) 163 FLR 99 (“Travers”) a 12 year old girl with spina bifida required to utilise a toilet which was not the nearest and most accessible, was held to have suffered discrimination on the basis of her disability, and was awarded $6,250, assessed taking into account the following factors:
a)the applicant had not been entirely happy at the school before the incidents of February 1996 occurred;
b)the applicant’s removal from the school was caused by a number of factors which contributed to her unhappiness of which the discrimination was only one, albeit an important, factor;
c)no medical evidence was called and there was no allegation that the applicant was suffering from any psychiatric disturbance or post traumatic stress disorder;
d)there was no intention on the part of the school to deliberately discriminate against the applicant; and
e)the applicant had suffered no long term damage as she was happy at another school.
In Sheehan v Tin Can Bay Country Club [2002] FMCA 95; (2002) EOC 93-240 a disabled person was awarded $1,500 in damages for hurt and distress caused by the respondent’s refusal to permit the applicant’s assistance animal on to the premises.
In assessing damages in this case the Court obviously takes account of the nature of the discrimination which it has found, and the hurt, humiliation, distress and inconvenience caused to Tahlia (but not her parents) by reason of that discrimination. The Court’s views on those matters will be readily apparent from the Reasons for judgment in relation to each of those matters. The Court also takes into account, however, the following:
a)there is no specialist medical or therapeutic evidence properly before the Court as to what particular physical or mental injury might have been caused to Tahlia by any of the forms of disability discrimination found;
b)in relation to hurt, humiliation or distress Tahlia’s relatively young age means that any such hurt, humiliation or distress will be relatively transient;
c)it was not the intention of the Director General or anyone at KPS to deliberately discriminate against Tahlia; and
d)Tahlia’s removal from KPS was caused by other matters, and those matters and her removal from KPS may well have occurred in any event.
In all of the above circumstances, the Court considers that appropriate damages for the discrimination found are as follows:
a)for the inadequate toilet facilities: $3,500;
b)for the narrow disability car bays: $1,000; and
c)for the steepness of the ramps: $3,500,
being a total of $8,000.
Conclusions and orders
The Court has concluded that:
a)the Director General has discriminated against Tahlia on the ground of her disability in relation to:
i)requiring her to use inadequate toilet facilities from Term 4 2009 to November 2010;
ii)the use of the disabled parking bays which were too narrow; and
iii)Tahlia having to use ramps which were too steep to access her Year 1 classroom in 2010, and her Year 2 classroom for a week in May 2011,
but that otherwise the claims of disability discrimination, and breach of the Disability Standards and Access to Premises Standards, have not been made out; and
b)Tahlia is entitled to damages in the sum of $8,000.
With respect to damages, the Court is of the view that the proper order would see the amount of damages paid into an account supervised by an independent trustee: see, for example, the order made in Travers. The Court will also need to hear the parties as to costs. Having regard to those matters there will be an order that the parties confer forthwith, with a view to reaching agreement and filing a minute of proposed consent order to reflect these Reasons for Judgment, but otherwise adjourning the matter to a further directions hearing at 4.00pm on 17 July 2015.
I certify that the preceding three hundred and eighteen (318) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 10 July 2015
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