Graham v State of NSW (Director General, NSW Department of Health, in respect of Ambulance Service Division) [2008] NSWADT

[2008] NSWADT 270

CITATION:	Graham v State of NSW (Director General, NSW Department of Health, in respect of Ambulance Service Division) [2008] NSWADT [2008] NSWADT 270
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Rosemary Graham RESPONDENT State of NSW (Director General, NSW Department of Health, in respect of Ambulance Service Division)
FILE NUMBER:	071016
HEARING DATES:	29-31 October 2007, 17-18 March 2008
SUBMISSIONS CLOSED:	18 March 2008
DATE OF DECISION:	3 October 2008
BEFORE:	Britton A - Deputy President; Schneeweiss J - Non-Judicial Member ; Nemeth de Bikal L - Non-Judicial Member
CATCHWORDS:	Complaint of disability discrimination - services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth)
CASES CITED:	Briginshaw v Briginshaw ((1938) 60 CLR 336 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commissioner of Police v Mooney (No.2) [EOD] [2003] NSWADTAP 67 Dutt v Central Coast Area Health Service [2002] NSWADT 133 IW v City of Perth (1997) 191 CLR 1 Martin v McKensey (No. 2) [2003] NSWADT 126 Purvis v New South Wales (2003) 217 CLR 92 Sasterawan v SSS Electronics Pty Ltd [2006] NSWADT 140 Turner v State Transit Authority & anor [2004] NSWADT 89 Waters v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPLICANT N Carney, barrister RESPONDENT T Anderson, barrister
ORDERS:	Complaint is dismissed.

1 These reasons concern a complaint made by Mrs Rosemary Graham against the NSW Ambulance Service. Mrs Graham contends that the Ambulance officers who attended her home in the early hours of 15 July 2005, in response to an emergency call, treated her in a dismissive and discourteous manner and refused to transport her to hospital. She contends that the reason for this treatment was because the attending officers erroneously concluded that her complaints of weakness, lack of balance and incoherent speech were feigned because they mistakenly believed she suffered from a psychiatric condition. She alleges that this mistreatment continued the following day when at the request of her treating doctor, she was transported to hospital by ambulance. She further contends that the Hospital’s decision to discharge her without treatment was influenced in part by the misinformation provided by the ambulance officers.

2 Forty eight hours after the emergency call to the Ambulance Service, consultant neurologist, Professor B Kichu Nair, assessed Mrs Graham and diagnosed a stroke, or more precisely, ‘a lacunar cerebral infract on the left side with mild persistent right leg weakness’.

3 Mrs Graham lodged a complaint about the Ambulance Service with the President of the Anti-Discrimination Board alleging discrimination on the grounds of disability in the area of services (section 49M of the Anti-Discrimination Act 1977 (the Act)). After investigating the complaint the President concluded it could not be conciliated and referred it to the Tribunal under section 93C of the AD Act.

4 Mrs Graham also lodged a complaint against the Hunter New England Area Health Service, which the President referred to the Tribunal. That complaint was subsequently settled and dismissed.

What Mrs Graham must prove

5 Section 49M of the Act provides:

Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those … services, or

(b) in the terms on which he or she provides the person with those … services.

6 Mrs Graham’s complaint is cast as one of so called ‘direct discrimination’ (section 49B(1)(a) of the Act). She must establish, on the balance of probabilities:

First, that the Ambulance Service refused her a service or discriminated against her in the terms on which it provided services;

Second, that the attending officers thought she suffered from a disability;

Third, that in the same or similar circumstances, a person not thought to be suffering from a disability would have been treated more favourably (‘differential treatment’);

Fourth, that one of the reasons for any less favourable treatment was Mrs Graham’s disability (‘causation’).

7 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45], the Appeal Panel said that in a case of direct discrimination differential treatment should be determined before causation as ‘if there is no relevant differential treatment it is unnecessary to consider the issue of causation’ at [45]. The Tribunal in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65] and Martin v McKensey (No. 2) [2003] NSWADT 126 at [46] questioned that approach and pointed to the practical difficulties where the assessment of differential treatment relies on a hypothetical comparator. In this case there is no evidence of an actual comparator and therefore, consistent with the approach adopted in Dutt and Martin, we will first consider causation.

8 In determining whether Mrs Graham has established her complaint, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent. (See the remarks of Dixon J in Briginshaw v Briginshaw ((1938) 60 CLR 336 at 361-362.)

9 For convenience we will examine these issues in two parts, first, the initial attendance at the Graham’s house on the morning of 15 July and second, the transport of Mrs Graham to hospital the following day.

A. First call out

10 In a statement prepared by Mrs Graham dated 3 March 2006 she stated she awoke in the early hours of 15 July 2005 after realising she had lost bladder control. She said she jumped out of bed, froze, and when asked by her husband what was wrong, found she was unable to speak and fell to the floor.

11 Her husband, Mr Malcolm Graham dialled ‘000’. An ambulance was dispatched and ten minutes later, Ambulance Officers, Ian Cerff and Dale Pirecki arrived at the Graham’s home. The Control Centre relay stated:

You are responding to a patient who had apparently suffered a stroke. The Patient is a 48 years old female, who is conscious and breathing.

12 Mrs Graham stated that one of the officers, who she later identified as Officer Cerff, after ‘doing some tests’ asked, ‘What is happening tonight Rosemary?’ to which she replied, ‘I don’t know, I just woke up feeling funny’. Officer Cerff was the senior officer and ‘took charge of the situation’.

13 According to Mrs Graham, Officer Cerff went on to question her further about what she had eaten, her general health, the medications she had been prescribed and how she felt when she went to bed that night. After examining her medications, he went on to ask Mrs Graham and later her husband, had she taken any drugs. Both denied that she had. According to Mrs Graham, the following words were exchanged:

Officer Cerff: This is bullshit, all bullshit, she is sitting there pretending to be out of it, yet she is listening and responding to everything we say, it’s absolute bullshit, she is bunging it on.

Mrs Graham: I am not bunging it on.

14 Mrs Graham said after the officers assisted her back to bed she overheard the following exchange:

Officer Cerff: Could she have taken any drugs without you knowing?

Mr Graham: No she wouldn’t do that.

Officer Cerff: It’s all bullshit, she is playing one on you mate, she is bunging it on.

15 Mrs Graham claims that she then ‘staggered out of bed’, pleaded with the officers ‘I’m not bunging it on’ and fell to the floor. On her account having observed her fall, Officer Cerff turned to her husband and said,

Oh this is such bullshit, look at her, this is the most purposeful fall I have seen in 15 years as an ambulance officer, why didn’t she fall in the bedroom, it’s bullshit, just bullshit, now get up Rosemary!

16 According to Mrs Graham, the officers again assisted her back to bed and as they rolled her onto her side she exclaimed ‘I’m all wet’. She claims that her pleas were ignored and Officer Cerff said, ‘Now stay there. Don’t get up again. Sleep it off.’

17 Mr Graham in a statement tendered in these proceedings dated 2 August 2006 gave a similar account to that given by his wife although he did not, nor claim to, overhear what was said when the officers put his wife back to bed. Included in the President’s Report was a statement prepared by the Graham’s son Mr Michael Graham. It was not tendered in the proceedings. Mr Michael Graham corroborated his mother’s account and claimed that he overheard one of the officers say, ‘you are full of bullshit Rosemary, now don’t get up again. Sleep it off’.

18 About a month after the incident, Officers Cerff and Pirecki were interviewed by a senior officer, Mr John Clark, as part of an internal investigation triggered by a complaint made by Mrs Graham. Statements provided by both officers to Officer Clark were tendered in these proceedings.

19 Officer Cerff testified that he had a ‘good recall’ of the events of that evening. His colleague, Mr Pirecki, conceded in cross-examination that his recollection was at best scant.

20 Officer Cerff gave this account of the evening to Officer Clark:

I found a 48 y o female prone on the lounge room floor (squirming). It immediately appeared to me to be purposeful movement, not a genuine fit. Along with my partner I assisted her onto the lounge - she appeared jelly-legged.

There were times during the history taking period when the patient behaved ‘normally’ and responded to my questioning then would appear to lose consciousness and be incoherent.

After a full examination which included Neuro obs, BSL, Blood pressure etc I decided there was no obvious Neuro anomaly and that the patient possibly may have ingested either some alcohol or drug. Following this assessment I fully documented these observations and history on the PHCR 40044.

I then assisted the patient along with my partner to her bedroom at this time the patient claimed that she couldn't walk (wouldn’t weight bear). Whilst assisting the patient in a difficult area of the house I mumbled under my breath softly I thought that this was bullshit, I said this softly because her husband was very near and I was being mindful of this so as not to cause an issue. The allegation contained in the INS report that I swore at the patient is not true the comment was not directed to any person in that house.

After putting the patient to bed I directed the husband back to the lounge room so that I could advise him appropriately.

In my professional experience I advised the husband there appeared to be no major problem evident and in my opinion there was some sort of substance reaction or Psychiatric event (this is a Medical term and not intended to be derogatory to any person) [emphasis added]. During this time the patient walked unassisted out of her bedroom down the hallway upon seeing us talking with her husband she again had, in my opinion, another purposeful collapse. I commented to the husband that earlier she couldn't walk now she can walk.

I advised the husband to observe her and as per my notes on the PHCR to recall Ambulance if changes in condition, or otherwise consult with her LMO in the AM.

21 A copy of the Patient Health Care Record completed by Officer Cerff immediately following the call out to the Graham’s, was tendered in these proceedings. Under the heading ‘Chief Complaint/ Patient Incident History’ he wrote:

This 48 year old lady presents squirming on floor with rambling sounds. In appearance Pt [patient] appears under influence ? alcohol; O/E BSL [blood sugar level] =5.1; No motor sensory dysfunction; vital signs W.N.L. [within normal limits]; Neuro obs n.a.d [no abnormalities detected]. Pt able to understand and obey all commands with lucid verbal response. Pt also making purposeful ‘decisions’ re feigning collapse etc. Prov. D [provisional diagnosis] = substance reaction or psychiatric. Partner advised to observe Pt (back in bed) & recall if any change in condition otherwise consult LMO in AM.

22 In a statement prepared for these proceedings dated 14 June 2007, Mr Cerff stated, ‘By the time we commenced walking Mrs Graham to her bedroom I believed that she was feigning her signs’. He claimed that that belief was based on the following:

(i) The fit she was supposedly having when he first observed her did not appear to be genuine

(ii) All her vital signs were within normal limits;

(iii) There were no neurological anomalies;

(iv) At times her responses and reactions to questions were lucid and normal and at other times they were not.

23 He said, after putting Mrs Graham in bed, he told her husband that he could not find anything wrong with her: ‘The problem could be (1) alcohol; (2) something else she had taken, or (3) psychiatric’. He said:

In using the word ‘psychiatric’ I was not intending to suggest that she was suffering from a psychiatric illness. Although I believed Mrs Graham was feigning her signs, I did not know why and in using the word ‘psychiatric’, I was avoiding telling her husband that she was faking her signs.

24 Officer Pirecki said in evidence that he thought it possible that he did not read the entry under the heading, Patient Incident History completed by Officer Cerff. He claimed he had no recollection of any discussion with Mr Cerff about his conclusion that Mrs Graham’s symptoms were ‘feigned’ and that was not a word he would have used.

25 Consultation with Dr Vogt At about 8 am that morning, Mr Graham made an appointment for his wife to be assessed by her GP, Dr Gerhard Vogt.

26 While seated in the waiting room Mrs Graham repeatedly slumped in her chair and had to be assisted to sit up. She was examined by Dr Vogt who after carrying out various tests and conferring with his colleague, decided that Mrs Graham should be taken to Manning Base Hospital for further investigations. In a document headed ‘Request for Consultation’, under the heading, ‘Reason for Referral’ he wrote,

Attacks of severe weakness of body collapsing frequently but fully conscious… (waves [unclear]) of muscular weakness ?

27 In January 2006, Dr Vogt provided the following information to Mrs Graham’s solicitors apparently in response to their request:

…When seen in the surgery she had reoccurring attacks of muscular weakness, was unable to stay in a sitting position and had to be supine.

All observations were normal apart from episodic weakness lasting about 10 minutes, accompanied by dysarthria. She was transferred by ambulance to Manning Base Hospital for assessment and treatment.

My initial diagnosis was a possible T.I.A. [Transient Ischaemic Attack] or a ‘stroke in evolution’.

Mrs Graham is a heavy smoker, has ischaemic heart disease, dyslipidaemia and generalised atherosclerosis, all risk factors for cerebro vascular happenings.

No specific treatment was given at the time as she was already using Iscover 75mg per day.

At present she is well and has no residual symptoms. Her prognosis is good for this episode and treatment of her risk factors has continued, but she is still smoking heavily.

Present treatment

[Medication listed]

…

I saw Mrs Graham again [at] the Cape Hawke Community Private Hospital late afternoon on 15/07/2005. Her acute symptoms had settled by then, but she still had some right leg weakness causing a limp when walking. She and her husband were both very upset with the assessment and treatment received at the emergency department of the Manning Base Hospital. She felt she was not taken seriously with her complaints and that her symptoms were based on non physical pathology, eg: stress, depression and possibly even malingering.

Necessary tests were ordered:

CT scan of the brain

U/S of carotid arteries

pathology tests

transthoracic echocardiogram

…

I referred Mrs Graham to Prof B K Nair of 10 12 South Street, Forster who saw her on 16/05/2005 in Cape Hawke Community Private Hospital and diagnosed a lacunar cerebral infarct on the left side with mild persistent right leg weakness.

Mrs Graham has now fully recovered.

28 Internal Investigation Two days after the incident Mr Graham rang the Ambulance Service to complain about his wife’s treatment. A copy of the record of complaint was tendered in these proceedings. It recorded that Mr Graham claimed that the attending officers had said that his wife’s complaint was ‘in her head’ and that their address ‘had a local knowledge of a psych. Patient history and she [Mrs Graham] is being treated accordingly…’. The record indicates that the following day Mrs Graham rang the Service and ‘…advised that a [name deleted] PR lived at residence previously. Similar age and appearance…[indecipherable] caution note on address.’

29 Officer Evan called for the records relating to the incident and met with the Grahams. As noted he also took a statement from Officers Cerff and Pirecki.

30 Officer Evans stated that the scope of his investigation was confined to determining whether a caution note had been placed on the Graham’s address and whether Officer Cerff had sworn at Mrs Graham. He found that Officer Cerff had used the word ‘bullshit’ once and a letter of apology was sent to Mrs Graham. He found no evidence to support the claim that the Graham’s house had a reputation within the Service.

What happened?

31 Much of the evidence about what happened during the 22 minutes, Officers Cerff and Pirecki were in attendance on the morning of 15 July is uncontested. Before proceeding to consider whether the elements necessary to establish a complaint of unlawful discrimination on the ground of disability have been established three factual disputes must be resolved namely whether Officer Cerff used the words ‘She’s just bunging it on!’; whether he used the word ‘Bullshit’ more than once and; third, whether the officers put Mrs Graham back into a wet bed and told her to ‘Sleep it off!’.

32 Bunging it on! Officer Cerff believed Mrs Graham had been faking her symptoms. While he denied using the words attributed to him by the Grahams, he admitted in cross-examination that had someone approached him after the event he would have said, ‘Yes - she was bunging it on’.

33 The Grahams insisted that Officer Cerff said on more than one occasion, ‘She’s bunging it on’. Mr Graham in our view was a reliable witness. Under cross-examination he made appropriate concessions about his recall of the sequence of the events, but remained steadfast in his claim that Mr Cerff had used the words ‘bunging it on’. That claim is also consistent with complaint evidence given to Officer Clark, two weeks after the incident (Exhibit R7, EC, Appendix A).

34 Officer Cerff’s admission that he said under his breath, ‘Bullshit’ when Mrs Graham was apparently unable to weight bear, is consistent with his alleged remark that she ‘was bunging it on’. It reveals a degree of frustration on his part, which is not surprising given his belief that he had been called out in the middle of the night for no good reason. Officer Pirecki’s evidence does not assist Mr Cerff, as, while he thought it unlikely that words of that type would have been used, he had no independent recollection of the evening.

35 We think it more likely than not, that Officer Cerff said at least once throughout the evening, ‘She was bunging it on’.

36 Use of the word bullshit! Officer Cerff admits to using the word ‘bullshit’ once. Officer Pirecki made no mention of the word in either statement but conceded in cross-examination that Officer Cerff had used the word but only once. The Grahams claimed he used it twice, possibly three times.

37 We are satisfied that Officer Cerff used the word bullshit more than once in the presence of the Grahams.

38 Placed back into a wet bed Mrs Graham claims that she was placed back into a wet bed and told to ‘sleep it off’. Officer Cerff denies that. Officer Pirecki could not recall putting Mrs Graham back to bed.

39 Mrs Graham’s account that she awoke in the early hours of the morning after realising she had lost bladder control is consistent with her claim that half an hour later she was put back into a wet bed.

40 Neither attending officer nor Mr Graham noticed that Mrs Graham was wet before she was returned to bed. Officer Cerff claimed that he saw no sign of incontinence when shortly after arrival he assisted Mrs Graham off the floor and onto the lounge.

41 On Mr Graham’s account he first noticed that his wife’s bed was wet when he stripped it later that afternoon.

42 While Mr Michael Graham claimed that he heard the officers say, ‘Sleep it off’ he did not claim to hear his mother’s protests about being put back into a wet bed.

43 While the evidence makes plain that at some point in the morning Mrs Graham noticed that her bed was wet, we could not be satisfied to the requisite standard that when she was put back to bed she said audibly ‘I’m wet. I’m all wet’.

Was Mrs Graham refused a service?

44 Mrs Graham must establish that the Ambulance Service through the attending officers, refused to provide her with a service.

45 Whether a service has been refused cannot be answered without first identifying the relevant service alleged to have been refused. Brennan CJ and McHugh J stated in IW v City of Perth (1997) 191 CLR 1 at 16-17: ‘In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides’ [emphasis added]. The identification of the relevant services is a question of fact per McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 404.

46 It is uncontroversial that the Ambulance Service provides services within the meaning of s 4 of the Act and that these include, among other things, transport services. As we understand the submissions made for Mrs Graham this was the service allegedly refused.

47 It is common ground that Mrs Graham was provided with some services on the morning of 15 July: ambulance officers attended her home within 20 minutes of receiving the 000 call; took a history and performed some tests. The submission advanced by Counsel for the respondent, Ms Anderson, is to the effect that as the Ambulance officers had concluded after a proper assessment that Mrs Graham’s condition did not warrant hospitalisation it could not be said that transport was refused. She points out that Mr Graham took no action when told by the attending officers that he should monitor his wife’s progress throughout the night, recall the ambulance service if her condition deteriorated and consult her general practitioner in the morning.

48 The Macquarie Dictionary, 3rd edition, defines ‘refuse’ to mean ‘to decline to give; deny (a request, demand, etc)’. Whether a particular service has been refused under section 49M(a), can only be determined by reference to all the circumstances. It does not necessarily follow that because Mrs Graham was not provided with one of the many services provided by the Ambulance Service that that service was refused. Here context is everything.

49 The officers had been called out following a report of a 48 year old woman ‘possibly having a stroke/CVA’. On arrival she was observed to be ‘squirming of the floor’ and making rambling sounds. She later collapsed. The officers were told that her condition had come on suddenly; her speech was slurred and there was no evidence of drugs or alcohol being involved.

50 In our view whether the service of transport was refused cannot be answered by simply asking why Officer Cerff reached the view that Mrs Graham’s condition did not require hospitalisation or whether there was a proper basis for that assessment. That enquiry might explain why the service was refused but does not detract from the fact that it was. The initiating call placed by Mr Graham was a request for urgent medical attention and it is implicit that it included a request that his wife be transported to hospital. That Mr Graham did not protest when the attending officers advised him that his wife would not be conveyed to hospital, does not mean that he withdrew his request for transport services. He admits to being in a state of shock and was wholly dependent on the assessment reached by the ambulance officers.

51 Whether the decision not to transport Mrs Graham to hospital constitutes unlawful discrimination is a separate and discrete question from whether a service was refused. In our view having regard to all the circumstances the failure to provide Mrs Graham with transport to hospital constitutes a refusal to provide a service for the purpose of section 49M(1)(a).

The subject disability

52 In the initiating complaint to the Board, Mrs Graham’s solicitor identified the relevant disability as a ‘perceived disability’, namely psychological attention-seeking or as her GP described ‘malingering’ (President’s report, Tab 3).

53 The Amended Points of Claim identify the relevant disability as a ‘presumed mental disorder, apparently a form a Factitious Disorder’.

54 In answer to a request for further particulars made by the Ambulance Service, the following definition of a factitious disorder was provided by Mrs Graham.

The term factitious disorder (FD) refers to the psychiatric condition in which an individual presents with an illness that is deliberately produced or falsified for the sole purpose of assuming the sick role.

55 “Disability” is defined in section 4 of the Act to mean:

(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person’s body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

56 Section 49A of the Act makes clear that the term disability is not confined to an actual disability and extends to a presumed disability that is, a disability a person is thought to have whether or not that is in fact the case. It provides:

49A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

57 Ms Anderson attacked the Amended Points of Claim and asserted that it did not identify the subject disability, with sufficient particularity. While trite that a respondent is entitled to ‘know the case it is required to meet’, it does not follow that a complainant alleging unlawful discrimination on the ground of a presumed disability is required to identify with precision the particular medical condition the discriminator believed them to suffer.

58 As the Appeal Panel observed in Commissioner of Police v Mooney (No.2) [EOD] [2003] NSWADTAP 67 at [61] the definition of disability:

[I]s a legal definition of disability rather than a list of conditions, diseases, illnesses or injuries which may be used in a medical or allied health context. The definition [of ‘disability’ contained in section 4 of the Act] reflects the approach to disability taken in significant relevant international instruments, such as the Declaration on the Rights of Disabled Persons (see Schedule 5 to the Human Rights and Equal Opportunity Act 1986 (Cth)). In that Declaration the definition of “disabled person” centres on people who, as a result of “deficiency”, may have a limited capacity to access by themselves “the necessities of a normal individual and/or social life”. Whilst some of the language used in that definition may be dated, it is clear that the definition is not intended to be a categorisation which turns upon medical-style illness, injury or disease classifications [emphasis added].

59 If Ms Anderson’s argument is correct then a maitre d’ who refused to serve a person because he thought they suffered from an unspecified infectious disease, would escape liability, unless the person refused service could specify the infectious disease the maitre d’ believed them to suffer. That interpretation would give the extended definition of disability contained in section 49A(c) limited operation and in our view would be inconsistent with a liberal approach to the interpretation of the Act.

60 In our view the Ambulance Service’s contention that the nature of the pleaded disability is uncertain cannot be sustained.

Had a caution note been placed on the Graham’s address?

61 The Grahams believe that the Ambulance Officers had confused Mrs Graham with a former resident who they understood had a habit of ‘crying wolf’. The Grahams claim they heard about the former resident from the ‘girl and guy ambo’ who had been called out to attend to Mrs Graham a few years earlier.

62 When investigated by Officer Clark he found no evidence to support that claim.

63 There is no evidence to suggest that the officers had been given information on the morning of the incident to suggest that the Graham’s address had a reputation. The only information they had been given was the address and a brief description of Mrs Graham’s condition.

64 Officer Pirecki said that 15 July 2005 was the first and only occasion he had visited the Graham’s home. Officer Cerff admitted that he had been called out to the address on a number of occasions when he first moved to the area in the early nineties but claimed to remember little about the former resident and denied that he could have confused her with Mrs Graham.

65 While possible that some officers considered that the Graham’s address had ‘a reputation’, we could not be satisfied to the requisite standard that Officers Cerff or Pirecki thought that to be the case.

Did the officers think Mrs Graham suffered from a psychiatric condition?

66 While denied by Officer Cerff, the preponderance of evidence makes clear that he had reached a view that Mrs Graham was ‘a nutter’, to use an expression used repeatedly in these proceedings, or suffered from some form of psychiatric condition which predisposed her to feigning symptoms of illness.

67 After putting Mrs Graham back to bed he told her husband that the problem could be ‘(1) alcohol, (2) something else she has taken, or (3) psychiatric’. In his statement he gave this explanation for using the word ‘psychiatric’, in the Patient Health Care record:

In using the word ‘psychiatric’ I was not intending to suggest that she suffered from a psychiatric illness. Although I believed Mrs Graham was feigning her signs, I did not know why and in using the word ‘psychiatric’ I was avoiding telling her husband she was faking her signs.

68 This explanation is inherently implausible. While understandable that Officer Cerff might be reluctant to tell Mr Graham that he thought his wife was faking, his explanation for doing so contradicts what he told Officer Clark a month after the incident:

In my opinion there was some sort of substance reaction or Psychiatric event (this is a Medical term and not intended to be derogatory to any person).

69 Officer Cerff’s explanation must also be regarded with a degree of scepticism given his provisional diagnosis of ‘substance reaction or psychiatric’ recorded on the night of the incident.

70 For these reasons we believe that Officer Cerff thought Mrs Graham was suffering from some form of psychiatric condition which predisposed her to feigning symptoms of illness. There is insufficient information to determine whether he communicated this or his colleague shared that view. Given Officer Pirecki’s apparent willingness to defer to his more experienced colleague nothing turns on this.

Was the subject disability a reason for the treatment suffered?

71 Mrs Graham must establish that one of the reasons for the refusal of the service was the subject disorder. That reason need not be the dominant or substantial reason (section 4A of the Act).

72 In Purvis v New South Wales (2003) 217 CLR 92, McHugh and Kirby JJ said (at pp 142, 143):

[w]hile it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.

73 While the evidence does not support a finding that the attending officers consciously decided to discriminate against Mrs Graham the evidence makes clear that there was a direct causal link between their treatment of her and the subject disability Officer Cerff believed her to suffer. We are satisfied that one of the reasons for refusing to transport Mrs Graham to hospital was Officer Cerff’s belief that Mrs Graham was feigning because of some psychiatric condition.

Would a person without the subject disability have been treated more favourably?

74 Mrs Graham must establish that the treatment she was afforded was less favourable than the treatment a person not thought to suffer from the subject disability was or would probably have been afforded in comparable circumstances. This exercise is undertaken by using an actual or hypothetical comparator. Here there is no evidence of an actual comparator. Accordingly it is necessary to employ a hypothetical comparator.

75 The leading case on the employment of a comparator for the purpose of determining whether less favourable treatment has been established is Purvis v New South Wales. In Purvis, the High Court considered an appeal from a decision by the Full Court of the Federal Court. That court had, in its turn, considered an appeal from a decision of Emmet J in the Federal Court in which he, the primary judge, had overturned a decision by the Human Rights and Equal Opportunity Commission (HREOC). HREOC had found that the expulsion of a child from a school on the grounds of violent misconduct flowing from his disability had breached the Disability Discrimination Act 1992 (Cth). The case was argued as a complaint of direct discrimination under section 5(1) of the Disability Discrimination Act 1992.

76 In Purvis, one of the major issues for determination was whether the proper comparator to determine whether the expulsion was “less favourable” was a child without disabilities who, like the appellant in that case, had exhibited violent behaviour or a child who had not, it being argued for the appellant that the violent behaviour was so intimately related to the disability that it was inappropriate to take it into account. The majority (Gummow, Hayne and Heydon JJ) held that the circumstances in which the complainant was treated by the school included his own violent behaviour. They said:

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled…

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability… (185 [223]-[224]).

77 Applying Purvis to this case, it is necessary to import into the comparison the characteristics or manifestations of the disability Mrs Graham was thought to have. The comparator, therefore, would appear to be a person:

who presented with no objective signs of any neurological abnormality;

whose vital signs, on testing, all appeared to be within normal limits; and

who displayed symptoms which were inconsistent with those objective signs and which the ambulance officers believed were feigned.

78 Officer Cerff decided that Mrs Graham’s condition was not serious within minutes of arrival. By the time he assisted her on to the lounge he had concluded that her complaints lacked veracity. This together with the absence of objective signs on testing led him to exclude the possibility that there might be a more sinister explanation for her condition. Confronted with the same symptoms six hours later, Mrs Graham’s treating doctor concluded that his patient’s condition warranted further investigation. Unlike Officer Cerff, Dr Voght was not prepared to rule out the possibility that further investigation was required. He accepted Mrs Graham’s symptoms as genuine. Officer Cerff did not.

79 The evidence makes clear that diagnosing Mrs Graham had not been a simple task. When seen by Dr Vogt, Officer Cerff and the hospital resident, all of Mrs Graham’s vital signs were found to be within normal limits. While not admitted by the respondent, the weight of evidence in our view supports a finding that in the 36 hours before being diagnosed by Professor Nair, she had been suffering, to use the expression used by Dr Vogt, a ‘stroke in evolution’.

80 If the hypothetical comparator, Mrs Graham’s treatment is compared to, was an able bodied person who was not thought to be feigning illness, had no abnormal signs on testing but the same reported symptoms as Mrs Graham - weakness, incoherent speech etc - we think it more likely than not that a decision would have been made to transport them to hospital. In that situation we think it likely the Ambulance officers would have taken a similar approach to Dr Vogt and concluded that the reported symptoms were of themselves serious enough to warrant further investigation, notwithstanding that they appeared to be at odds with the seemingly innocent results on testing.

81 However the majority in Purvis makes clear that where disability discrimination is alleged the characteristics or manifestations of the disability must be imported into the comparison for the purpose of determining less favourable treatment. Accordingly we must compare Mrs Graham’s treatment to that which would probably be afforded to a person who in all respects is identical to the hypothetical comparator described above, except that it must be assumed that they were thought to display the characteristics or manifestations of the subject disability namely feigning illness. Doing so in this case leads us to conclude that less favourable treatment has not been established.

82 As less favourable treatment has not been established this part of the complaint must fail.

B. Second call out

What happened?

83 In response to his request an ambulance arrived at Dr Vogt’s surgery at about 11 am and transported Mrs Graham to Manning Base Hospital.

84 According to Mrs Graham while being transported to hospital, the following exchange took place between her and the attending officer, David Priddle:

Officer Priddle: I don’t mean to be mean Rosemary, but you can’t keep crying wolf, it means we can’t do our job and we can get into trouble. Is there a reason that you don’t want to be at home, does your husband bash you?’

Mrs Graham: No

Officer Priddle: Is there any stress at home?

Mrs Graham: No

Officer Priddle: Well whatever the problem is, you have to get to the bottom of it, OK get to the bottom of it!

Mrs Graham: I am not bunging it on’

85 It is common ground that Mrs Graham became progressively more tearful throughout the course of being transported to hospital. Mr Priddle broadly agreed with Mrs Graham’s account of that conversation but denied saying ‘crying wolf’ or asking, ‘Does your husband bash you?’ He concedes that he might have used the term ‘cry for help’ and asked, ‘Are there any issues with domestic violence’.

86 Mrs Graham claims that as they pulled in to the hospital ‘in desperation to escape further harassment’ she said:

Ok then I am just bunging it on, now take me home, just take me home!

87 On arrival at the hospital the following exchange occurred between Mrs Graham, Mr Priddle and the admitting nurse:

Officer Priddle to Mrs Graham: Now just tell him [the admitting nurse] what you told me.

Mrs Graham: I am just looking for attention, I am just bunging it on!

Nurse: Now why would you say that Rosemary

Mrs Graham (began to cry): I just want to go home.

88 Mrs Graham was subsequently assessed by a resident doctor, referred to a mental health worker and discharged.

89 Mrs Graham was taken by her husband and a friend to a nearby private hospital and admitted. The following day she was seen by Professor Nair who diagnosed a ‘mild cerebrovascular accident - most likely lacunar cerebral infraction on the left side with mild persistent right leg weakness’. That diagnosis was subsequently by CT scan.

The terms on which the service was provided

90 Mrs Graham relies on section 49M(b) of the Act. The key question to be determined is whether the Ambulance Service, through Officers Priddle and Evans, discriminated against Mrs Graham in the terms on which it provided transport and associated services to her.

91 In Turner v State Transit Authority & anor [2004] NSWADT 89 the Tribunal (differently constituted), considered the scope of section 38M(b) which makes unlawful discrimination in the area of goods and services on transgender grounds and is in all material respects identical to section 49M(b). That case concerned an insulting comment made by a bus driver to a passenger. The Tribunal examined section 38M and concluded that it did not extend to conduct that relates to the manner in which the offending service is provided:

71 In our opinion, there is a gap or loophole in the section 38M which is relied on by the Respondents. Parliament may have intended to cover both the terms on which services were provided and the manner in which such contracts were performed. However, because section 38M(b) refers ambiguously to the “terms on which the other person is provided with those goods and services”, this seems to us to be a very strained interpretation of the section. The acuteness of the strain placed on the interpretation is made plain by the fact that counsel for the Respondents has referred us to legislation in other jurisdictions which shows that other Parliaments have been aware of the material distinction to be drawn between the terms on which a service is agreed to be provided and the actual performance of the service.

72 Section 38M(b) prohibits service providers from placing special, discriminatory conditions on their provision of services to transgender persons. In short, it seems to us that the prohibition relates to the terms and conditions on which services are offered to transgender persons. They must be no less favourable than the terms and conditions offered to other persons, in this case potential users of public bus services. Critically, the terms on which a service is provided are, unless later varied by agreement, settled before the service is provided. What happens after that is a matter of performance of the contract. In other words, it relates to the manner in which the service is actually provided.

73 We see no evidence on Mr Bond’s part, nor on the STA’s, of an intention to discriminate against transgender persons in the terms on which the bus service was provided to them. Ms Turner was allowed to board Mr Bond’s bus on exactly the same terms as everyone else.

74 Deplorable as the insult used by Mr Bond may have been, his argument with Ms Turner did not relate to the terms on which the service was provided to Ms Turner. Rather it related to the manner in which he provided it to her and that, in our opinion does not come within the scope of section 38M(b). It appears to us to be anomalous that there is no equivalent statutory prohibition in section 38M against providing a service in a manner which is in practice discriminatory. However that appears to be the case. It is a matter which ought be rectified urgently by the NSW Parliament.

92 That approach was adopted in Sasterawan v SSS Electronics Pty Ltd [2006] NSWADT 140.

93 Neither the Amended Points of Claim nor the submissions made for Mrs Graham, identify the discriminatory terms under which the “service” was allegedly provided.

94 If Mrs Graham’s evidence is accepted at its highest, that is her bona fides was repeatedly and aggressively challenged throughout the journey to hospital, nonetheless this part of her complaint must fail as it is a complaint about the manner of her treatment rather than the terms on which that treatment was afforded and not in our opinion caught by the Act.

95 For this reason this part of the complaint must fail.

Orders

Complaint is dismissed.