Innes v Rail Corporation of NSW (No.2)
[2013] FMCA 36
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| INNES v RAIL CORPORATION OF NSW (NO.2) | [2013] FMCA 36 |
SUMMARY
In accordance with the practice of the Federal Magistrates Court in some cases of public interest, the following Summary has been prepared to accompany the reasons for judgment delivered today. The Summary is intended to assist understanding of the decision of the Court. It is not a complete statement of the conclusions reached by the Court or the reasons for those conclusions. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment. The published reasons for judgment and this Summary will be available on the Internet at MAGISTRATES COURT OF AUSTRALIA
GRAEME INNES v RAIL CORPORATION OF NSW (No.2) [2013] FMCA 36 SUMMARY
Mr Graeme Innes, the Commonwealth Disability Commissioner, is blind. He has long campaigned for improvement in the quality of announcements made on trains run by the New South Wales Rail Corporation (RailCorp). On 27 September 2010 he had a meeting with Mr Mason, the Chief Executive of RailCorp, pointing out what he considered to be the organisation’s responsibility under the Disability Standards to provide clear, audible announcements of next stations on its services. Mr Innes believed that RailCorp had had sufficient time to put into effect a proper programme to ensure that these announcements were made in that form. He informed Mr Mason that if, after six months, matters had not improved he would commence making complaints under the Disability Discrimination Act 1992 (Cth) (DDA) to the Australian Human Rights Commission (AHRC). After that six months had elapsed, Mr Innes began to document his journeys and found that in a subsequent period between 28 March 2011 and 9 September 2011 what he described as clear, audible announcements were not made in respect of all the stops upon his journeys between 18-20 percent of the time overall. He had also, during that period, a meeting with Ms Gladys Berejiklian, the Minister for Transport for New South Wales, where he reiterated his complaints.
Mr Innes made 36 complaints to the AHRC, and when these failed to be resolved by conciliation, brought proceedings pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) in this court. Although he sought declarations and damages in respect of each individual failure, the case was conducted on the basis of the total percentage of failures.
Mr Innes made claims under s.24 of the DDA alleging discrimination in relation to the provision of services. The court found, and the parties agreed, that the relevant service was the provision of railway transport between designated points on the respondent’s railway network on specified days and specified routes. It also found that it was an essential part of the service that all passengers knew their whereabouts at any point in the journey. Without this essential part, the service had not been provided. The court found that the general method of providing passengers with knowledge of their whereabouts was by signage at stations along the route. Mr Innes, as a blind man, could not read the signage. RailCorp provided an alternative method of knowing one’s whereabouts, that being the announcement of the next stop and the stop itself. On the most modern railcars this was done by an automated system tied to a GPS. These cars were much in the minority on the trains Mr Innes travelled between his work in the city and his home at Roseville. In respect of railcars not fitted with this system, a guard’s announcement was made. In the 19 percent of occasions that Mr Innes complained about, the failure to provide a clear audible system was mostly due to guard’s failing to make an announcement at all or making an inaudible announcement. There were occasions when the failure was caused by mechanical failure.
Mr Innes complained that the discrimination which he suffered was both direct discrimination under s.5 of the DDA and indirect discrimination under s.6 of the DDA. The emphasis in both these claims was on the failure of RailCorp to make reasonable adjustments, and that:
“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.” (s.5(2)(b))
Under s.6 the complaint was that Mr Innes was required to comply with a requirement or condition and:
“(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.”
The court found that the definition of discrimination advanced in s.5 of the Act could not be utilised by Mr Innes because there was no evidence that the failure to make clear, audible announcements occurred because Mr Innes was blind. He was therefore not directly discriminated against. However, the court did find that the actions of RailCorp amounted to indirect discrimination against him because he was subject to a requirement or condition that in order to know his whereabouts on the journey he was able to read the signage. The court found that RailCorp could have alleviated the condition for Mr Innes (and other vision impaired persons), by making clear, audible announcements and that to do so would be a reasonable adjustment. The court found that despite RailCorp’s well-documented attempts to ensure that clear, audible announcements were made, the failure to do this on 19 percent of the relevant journeys constituted a failure to make those reasonable adjustments. The court found that in those cases Mr Innes was disadvantaged.
The court heard evidence concerning the manner in which RailCorp attempted to ensure that clear, audible announcements were always made, but concluded that “the steps taken lack an overarching procedural system based upon a clear compliance programme. The steps appear reactive and haphazard rather than proactive and planned. They certainly contain some effective procedures but they are not comprehensively co-ordinated.” The court was required to look at the relevant complaint period and noted that after it more effective steps were taken. It found that a compliance system, as recommended by Mr Innes’ witness, Mr Buck, was neither ineffective nor difficult to implement. The evidence indicated that this compliance system, coupled with the procedures that RailCorp put in place and continues to improve, constituted a method of providing the reasonable adjustment.
Mr Innes also made a claim that RailCorp had breached s.32 of the Act by contravening a Disability Standard, namely, Disability Standards 27.1 and 27.4. Standard 27.4 states:
“All passengers must be given the same level of access to information on their whereabouts during a public transport journey.”
The court concluded that it should look at the totality of the complaints over the period of the journeys and found that in 18 to 20 percent of them the Standard had been breached. It found that this failure rate could not constitute compliance, it being beyond the ordinary vicissitudes. Mr Innes and the court accept that clear, audible announcements will not be provided 100 percent of the time, but that a failure rate of 18 to 20 percent is in excess of that which would constitute compliance.
Mr Innes claimed that he should be awarded damages of $1,000.00 for each occurrence, and that those damages should be paid to Vision Australia. The court found that the complaints should be considered holistically and not individually, and came to the view that a figure of $10,000.00 appropriately compensated Mr Innes for the anxiety and distress caused to him by all the matters subject of the proceedings. The court found that it was not in a position to make orders as to the disposal of the damages. That is a matter for Mr Innes. In its conclusion the court said:
“It would appear startlingly obvious to the lay observer that passengers travelling upon trains need to know where to get off. It would be equally obvious that this information should be provided in a way that was effective for all passengers. If it was not, the lay observer would conclude that those passengers for whom the information was not provided effectively were ‘discriminated’ against as they understand the way the word is generally used, “to make a distinction, as in favour of or against a person or thing” [Macquarie Dictionary (3rd Edition)]. The lay observer would rightly feel that if the discrimination was to be the subject of legal process there should be protection against an unavoidable occurrence but otherwise might have little patience for complex casuistic argument over definition or the manner in which the discrimination was described. The observer would have little sympathy for suggestions that the persons or class not provided with the information by the railway operator could seek it out elsewhere. Yet this is what this case has been about. A lengthy series of arguments over the meaning of words and interpretation of a statute that proudly proclaims its ‘beneficial nature’. This is not to blame those whose duty it was to argue for their clients. Lawyers work with laws and if those laws are written obscurely or ineffectively the shortcomings should be exposed. If my reasoning in this decision is found to be wrong, as well it might, the lay observer may be startled. It is hoped, that being so, she will take the matter up with those who write such laws and seek a less complex way of determining when actionable discrimination occurs, one that is less expensive, less profligate of legal and judicial time, less stressful for the parties.”
FEDERAL MAGISTRATES COURT OF AUSTRALIA
GRAEME INNES v RAIL CORPORATION OF NSW (No.2) [2013] FMCA 36
HUMAN RIGHTS – Disability discrimination – where applicant blind – where applicant made complaints to the Australian Human Rights Commission in relation to trips on respondent’s railway service – where applicant claimed respondent failed to make clear, audible next stop announcements on its trains – where service defined as ‘the provision of railway transport between designated points at particular times and on particular routes of the respondent’s railway network’ – whether provision of information about whereabouts on railway network an essential element of service – where respondent’s policy is to provide clear, audible announcements – whether respondent refused to provide the service to the applicant – whether respondent provided service to applicant subject to a condition or requirement that he identify his whereabouts using signage – where applicant claimed reasonable adjustment was the making of clear, audible announcements on the respondent’s trains – where adjustments made – whether adjustments constituted reasonable adjustments – whether reasonable adjustments by or at the relevant period – whether applicant was or would be treated less-favourably than a person who was not blind in circumstances that are the same or not materially different – whether causal nexus between alleged less-favourable treatment and applicant’s disability – whether direct discrimination for the purposes of s.5 of the Disability Discrimination Act 1992 (Cth) (‘DDA’) – whether requirement or condition need be universally applied to all journeys – where failure to make clear audible announcements occurred on 18 to 20 percent of journeys – whether requirement or condition was reasonable – whether indirect discrimination for the purposes of ss.6(1) and or 6(2) of the DDA – whether breach of s.24 of the DDA.
HUMAN RIGHTS – Disability Standards for Accessible Public Transport 2002 (Cth) – where Respondent is an operator and/or provider of a public transport system – where date for compliance with Standards was 23 October 2002 – whether general information about transport services not accessible to applicant – whether applicant not given same level of access to information as passengers without vision impairment – whether Standards apply in the general and not the specific – whether breach of the Standards – whether breach of s.32 of DDA.
PRACTICE AND PROCEDURE – Federal Magistrates Court – where the Disability Discrimination Act 1992 (Cth) is expressed as being an Act of limited operation – whether court has jurisdiction in relation to claim under s.12 DDA.
DAMAGES – Assessment – where continuous or oft-repeated breaches of DDA – where damages compensatory – whether damages should be assessed for each breach or holistically.
COSTS – General rule – whether to exercise discretion to apportion costs.
Disability Discrimination Act 1992 (Cth), ss.5, 6, 12(8)(ba), 24, 24(a), (b), (c), 31(1), 32
Convention on the Rights of Persons with Disabilities and Optional Protocol, Article 9
Disability Standards for Accessible Public Transport 2002, Cl.27.4
Transport Standards Guidelines
Acts Interpretation Act 1901 (Cth), ss.15AA, 15AB
Copyright Act 1968 (Cth), s.115(4)
IW v The City of Perth (1997) 191 CLR 1
Purvis v State of New South Wales (Dept of Education and Training) (2003) 217 CLR 92
King v Jetstar Airways Pty Ltd (No 2) (2012) 286 ALR 149
Vance v State Rail Authority [2004] FMCA 240
Robinson v Commissioner for Police [2012] FCA 770
Wood v CalvaryHealth Care ActLtd [2006] FCA 1433
Partridge v Partridge [1894] 1 Ch 351
Re Edwards, Loyd v Boyes [1910] 1 Ch 541
In re Quinton Dick. Lord Cloncurry v. Fenton [1926] Ch. 992
Boon v Maher (1986) 7 NSWLR 232
Australian Federation of Air Pilots v Ansett Transport Industries(Operations) Pty Ltd (1991) 28 FCR 379
Forrest v Queensland Health [2007] 161 FCR 152
Catholic Education Office v Clarke [2004] 138 FCR 121
Forbes v Australian Federal Police (Commonwealth) 2004 FCAFC 95
Hollingdale v North Coast Area Health Service [2006] FMCA 5
Waters v Public Transport Corporation [1991] 173 CLR 349
Hurst v State of Queensland [2006] FCAFC 100
Penhall-Jones v The State of NSW [2008] FMCA 832
Killeen v Combined Communications Network Pty Limited [2011] FCA 27
Hall v Sheiban (1989) 20 FCR 217
Hawkins v Clayton (1986) 5 NSWLR 109
Hawkins v Clayton (1988) 164 CLR 539
Clutha v Millar (No 3) [2002] NSWSC 642
Qantas Airways Ltd v Gama [2008] FCAFC 69
Evans v National Crime Authority [2003] FMCA 375
Commonwealth v Evans (2004) 81 ALD 402
Cummings v Lewis (Wilcox J, 29 May 1992, unreported)
Cummings v Rundle (1993) 41 FCR 559
Joye v Beach Petroleum NL and Another (1996) 137 ALR 506
Collector of Customs v Reg Russell and Sons Pty Ltd (Nicholson J, 3 August 1995, unreported), [1995] FCA 562
Applicant: GRAEME INNES
Respondent: RAIL CORPORATION OF NSW
File Number: SYG 2646 of 2011
Judgment of: Raphael FM
Hearing dates: 13 August, 14 August, 15 August, 12 October & 22 November 2012
Date of Last Submission: 22 November 2012
Delivered at: Sydney
Delivered on: 1 February 2013 REPRESENTATION
Counsel for the Applicant: Ms K Edwards, Mr B Fogarty
Solicitors for the Applicant: Public Interest Advocacy Centre
Counsel for the Respondent: Ms K Eastman SC, Mr T Glover
Solicitors for the Respondent: Ashurst Australia ORDERS
The Respondent pay to the applicant the sum of $10,000.00 for breach of ss. 24 and 32 of the Disability Discrimination Act 1992 (Cth).
The Respondent pay the Applicant $881.99 interest on the sum of $10,000.00.
The Respondent pay the Applicant’s costs, such costs to be taxed or assessed in accordance with the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011 and paid at 80% of the Federal Court scale.
The Applicant pay the costs associated with consideration of the affidavit of Ms Wolff and the retention of Dr Roberts, such costs to be paid as per Order 3 and set against the costs awarded thereunder.
Orders 3 & 4 to be stayed for 10 days for parties to provide written submissions as referred to in paragraph [167] of these reasons.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEYSYG 2646 of 2011
GRAEME INNES Applicant
And
RAIL CORPORATION OF NSW Respondent
REASONS FOR JUDGMENT
Introduction
This case involves claims by Mr Innes that RailCorp of NSW (“RailCorp”) acted in contravention of the Disability Discrimination Act 1992[1] in various ways by not making clear audible next stop announcements on all or part of some thirty-six journeys that he took between 28 March and 2 September 2011 on the State rail system. Mr Innes had taken approximately 315 trips on RailCorp services in that time. His complaints about 36 of those journeys constituted, he said, a 19 percent failure rate of the audibility of on train announcements.
[1] “DDA”
Mr Innes is blind and has been since a young age. He is the Disability Commissioner in the Federal Human Rights Commission. He has a particular interest and concern about the clarity and audibility of on-train announcements, not only because of his personal experiences, where such failure occurred, as he claimed, frequently prior to the 36 journeys the subject of these proceedings, but also on behalf of all sight impaired people who were required to use this form of public transport. He recognises, however, that this case is brought on his own behalf and relates entirely to his personal experience on the 36 journeys complained of. The case is not a form of representative action or class action on behalf of all sight impaired persons.
Mr Innes filed three affidavits, on 21 November 2011, 2 May 2012 and 28 June 2012 of which the latter two were admitted into evidence. He was not cross examined. There was also admitted into evidence without cross examination on his behalf affidavits of Nicholas Gleeson, Marianne Jones, Timothy Noonan, Leanne Duggan and Giselle Mesnaj who are sight impaired persons who claimed to have had similar experiences to those of Mr Innes upon the Railcorp system. An affidavit was received from Janie Barrett, a photographer with the Sydney Morning Herald, who travelled with Mr Innes on an Emu Plains train from Town Hall Station to Milsons Point and then boarded another train to Town Hall. She gave evidence that she did not hear any stations announced on the return journey. She was able to navigate the system and identify her whereabouts using painted signs on the platforms and through a train network map and by using an automated screen at Milsons Point displaying the upcoming stops. It is argued that none of these aids are available to a sight impaired person. Finally, there was admitted an affidavit of Michael Simpson, the General Manager, Advocacy, with Vision Australia. He gave evidence based on his personal experience of barriers to independent public transport and included absence of announcements to indicate current location and intended destination, fully articulated announcements on trains and lack of station platform announcements. It was his view that public transport was a vital element of living independently. A lack of confidence in public transport meant that sight impaired persons might have to meet the cost of taxis or rely on family and friends to transport them from place to place.
The respondents gave evidence through Mr Eid, the acting Chief Operating Officer of Railcorp. To the extent that his evidence is relevant it will be discussed in greater detail but it went to a number of factors including the makeup of the rail fleet, the types of public announcements that were made, the response to complaints made by Mr Innes, in particular the use of “hidden shopper” surveys. He considered the role of the guards in announcements and the General Orders of Railcorp which set out the duties required of persons making announcements. He discussed other random checks, follow up coaching after the mystery shopper checks and discussed the equipment on the different types of trains within the system.
Mr Eid’s evidence was responded to by the evidence of Mr Neil Lindsay Buck who prepared a report based upon his specialised knowledge in the areas of compliance, risk management and complaint handling. Mr Buck looked at the systems employed by Railcorp for ensuring that clear audible announcements were made and concluded that none of the material that he had seen provided what he considered to be basic compliance information for effective management of the issue of inaudible announcements on trains. Mr Buck proposed systems for training against competency standards and discussed ways and tests and assessments he believed could be put into place with the effect of improving the failure rate of the provision of clear audible announcements.
As is frequently found in cases of this nature anticipated factual disputes turn out to be illusory and battle is joined not so much on what occurred but on whether what occurred constitutes a breach of the DDA. In this case there was also an extensive argument as to the relevance of Mr Buck’s evidence and his expertise. This will not be a matter of concern if I accede to the arguments of the respondent that the activities complained of do not fall to be considered as discriminatory under the current drafting of the law. It is one of the more concerning features of, what is admitted by all to be beneficial legislation, that it so frequently fails those it is intended to protect: IW v The City of Perth (1997) 191 CLR 1, Purvis v State of New South Wales (Dept of Education and Training) (2003) 217 CLR 92, King v Jetstar Airways Pty Ltd (No 2) (2012) 286 ALR 149.
In order to understand the submissions made by the applicant and their refutation by the respondent it is necessary to briefly set out the facts that are unchallenged or that I have found.
Evidence
Mr Innes relies on clear audible on train announcements to travel independently upon trains. He has used trains in Sydney his entire life and used them independently from about the age of 16. He believes public transport is the most viable form of independent transport for blind people given the expense of taxis. He specifically chose to live near a train station for ease of access to the network. Mr Innes uses trains on the North Shore line to travel to and from work. The station closest to his home is Roseville, although if a train is not stopping there he will disembark at Chatswood and take the bus from that suburb. During the relevant complaint period his work station was originally Town Hall but that changed in about June 2011 to Wynyard. He takes the journey between home and work approximately six to eight times a week. He also uses the network for social engagements, to travel for work or to visit family. His greatest concern is knowing where he is and what station he has reached. His training, whilst at school, included learning how to navigate stations, board trains and locating where he was during a journey. In those years there were no audible announcements on trains. Mr Innes believes his training is undermined if he does not know where he is during a train journey.
Mr Innes deposed that he has a number of techniques for working out where he might be during the course of a train journey including the use of sounds to identify whether a train is passing through tunnels or over bridges and the counting of stations. But these matters require continuous concentration, which, I would accept, is more difficult at the end of a tiring day. He also listens for on station announcements but says these are unreliable because sometimes they are not made or they are made too late to be of assistance. At larger stations there are a number of competing announcements.
Mr Innes’ evidence deals with what happens if he does not hear a clear audible announcement of where the next station is and his other techniques are applied unsuccessfully. He claims that this will usually mean that he misses his intended stop and will have to get off at a station he is unfamiliar with, find his way around that station to go to the appropriate platform to return or journey on to his proper destination. He considers this as extremely stressful and time consuming. He gave one example of a problem which occurred prior to the complaint journeys. It was on the night of the Federal election of 2010 when travelling home there were no announcements between Central and Roseville. He could not find anyone on the train to ask where he was. He incorrectly counted the stations and got off at Lindfield. What was usually a one kilometre walk home became a three kilometre walk and he did not arrive home until after midnight prior to a day on which he had to arise at 5.30a.m. to catch a flight to New Zealand. Mr Innes’ evidence alleged that when he is on a train on which there fails to be clear audible next stop announcements he becomes anxious because he has to concentrate, he is unable to read without interruption, he is not able to retain what he has read, he feels tense, he perspires and will often have a headache by the end of the journey that negatively affects his interactions with family with work colleagues. His problem is increased when he is travelling on a line or to a station with which he is unfamiliar.
Mr Innes deposes that:
“I value my independence and ability to travel in public transport very highly. I am a determinedly independent person, and I structure my life to maximize my independence and control over circumstances that surround me, which is why I have gone to lengths to ensure that I can use trains and effective means of travelling place to place on my own. This effort is significantly impacted upon when lack of on-train announcements reduces my ability to travel independently. I believe my self-esteem, inherent dignity and value as an independent member of the community are each significantly underpinned by having this ability. When this is taken away from me by the lack of on-train announcements, I feel frustrated and my self-esteem is significantly reduced.”[2]
[2] Mr Innes’ Affidavit of 2 May 2012 at [22]
Mr Innes has been advocating for improvements in the provision of clear audible next station announcements for some time. In 1999 he took part in negotiations for the development of the Disability Standards for Accessible Public Transport that were promulgated in 2002. He believed this would have involved representatives from RailCorp. He states:
“I can recall expressing frustration that transport providers would get a further five years from the commencement of the Public Transport Standards to ensure that announcements would be audible. I was disappointed at the time that we couldn’t negotiate a faster result on that issue.”[3]
[3] Ibid at [69].
On 27 September 2010 Mr Innes met Mr Rob Mason, the Chief Executive of Railcorp, and discussed his concerns. He indicated that in his view Railcorp was not complying with the Accessible Transport Standards because onboard announcements needed to be understood on all trains. He told Mr Mason that he would begin making complaints to the AHRC if in six months the problem hadn’t been rectified. Mr Innes deposed that he said to Mr Mason words to the effect:
“In order to comply with the accessible transport standards Railcorp should have been making announcements which could be understood on all trains by December 2007. I am very disappointed that this has not occurred and that such announcements are not being made almost three years beyond that date. If the problem is not rectified within six months of the date of this meeting I will begin lodging complaints under the Disability Discrimination Act.”[4]
[4] Ibid at [70].
Mr Mason replied:
“Railcorp will address the quality and frequency of onboard train announcements including the improvement of relevant equipment and crew training.”[5]
[5] Ibid.
Mr Innes was not satisfied that the matters had improved within those six months and so commenced making complaints on 28 March 2011. Following the first four complaints he met with the New South Wales Minister for Transport, the Honourable Ms Gladys Berejiklian on 11 May 2011 and the Deputy Chief Operating Officer Mr Tony Eid, to discuss his complaints. He was told that ongoing improvements were being made and he stated that the complaints would continue until the problem was resolved in the terms set out in the complaints. What Mr Innes sought in his complaints were:
“1.A written undertaking by Railcorp that the relevant audio equipment on all trains will be checked to ensure that it is working effectively in all carriages on or before 90 days from the resolution of this complaint, and a commitment that such equipment will be re-checked at least once very six months.
2.That all current and future Railcorp employees who are required to manually deliver on-train announcements receive training in the use of such equipment within 90 days of the Resolution of this complaint, and that such training is revised at least once every twelve months.
3.A written undertaking from Railcorp that regular audits of the delivery of on-train announcements will occur as part of their regular train audit procedure.
4.Compensation for the discrimination which has occurred of $1000, in the form of a donation to Vision Australia, proof of which is to be provided at the time of resolution of this complaint.”
The applicant prepared for the purposes of his final submissions, a summary of the complaints made during the relevant period. This is reproduced below:
“SUMMARY COMPLAINTS MADE BY GRAEME INNES DURING RELEVANT PERIOD
(28 MARCH 2011-2 SEPTEMBER 2012)
* No announcements made – 5 of 36 5 - Blacktown trains – 13.8%
** Limited announcements made – 3 of 36 10 – Hornsby trains – 27.7%
17 – Penrith trains – 47.2%
11 of 36 - Limited Information 1 Gosford trains – 2.7%
25 of 36 - No information 3 – Richmond trains – 8.3%
| DATE/PARA | DESCRIPTION | OUTCOME/ | EID EVID |
| 28 Mar 2011 | Town Hall to Chatswood (Hornsby via Epping Train) | Limited Information | No PA communications system fault noted. |
| 31 Mar 2011 | Roseville to Wynyard (Blacktown train) Announcements prior to stopping all too soft to understand | No Information | No PA communications system fault noted. |
| 1 April 2011 | Roseville to Town Hall (Penrith train) Announcements prior to stopping all too soft to understand | No Information | Fault noted in PA communications system. |
| 1 April 2011 | Town Hall to Chatswood (Hornsby via Macquarie Park) | No Information | No PA communications system fault noted. |
| 11 April 2011 | Town Hall to Chatswood (Gosford via Gordon) | No Information | No PA communications system fault noted. |
| 12 April 2011 | Roseville to Town Hall (Penrith train) | No Information | No PA communications system fault noted. |
| 14 April 2011 | Town Hall to Chatswood (Hornsby via North Shore) | No Information | No PA communications system fault noted. |
| 19 April 2011 | Town Hall to Roseville (Berowra train) [likely to be a Hornsby train] | No Information | No PA communications system fault noted. |
| 27 April 2011 | Town Hall to Roseville (Hornsby via Gordon) | No Information | No PA communications system fault noted. |
| 5 May 2011 | Roseville to Town Hall (Penrith train) Some announcements made prior to stopping but all were too soft to understand | No Information | Fault noted in PA communications system on 2 & 3 May 2012. |
| *13 May 2011 | Roseville to Town Hall (Penrith train) No announcements made. Day of Harbour Bridge break down and bridge closed for two hours. | No Information | No PA communications system fault noted. |
| *13 May 2011 | Milson’s Point to Town Hall (Emu Plains train) [Likely to be a Penrith Train] No announcements made. Day Janie Barrett accompanied the Applicant. | No Information | No PA communications system fault noted. |
| 18 May 2011 | Roseville to Town Hall (Penrith train) Announcements made all too soft to hear. | No Information | Fault noted in PA communications system on 17 May 2011. Handset replaced on 31 August 2011. |
| 26 May 2011 | Roseville to Town Hall (St Mary’s train) [Likely to be a Penrith Train] Announcements made all too soft to hear. | No Information | No PA communications system fault noted. |
| 27 May 2011 | Roseville to Town Hall (Emu Plains train) [Likely to be a Penrith Train] Understood one announcement the rest of the announcements made all too soft to hear. | Limited Information | No PA communications system fault noted. |
| 30 May 2011 | Roseville to Town Hall (Blacktown train) Understood one announcement the rest of the announcements made all too soft to hear. | Limited Information | Fault noted in PA communications system on 29 May 2011. Handset replaced on 19 July 2011. |
| **30 May 2011 | Town Hall to Chatswood (Hornsby via Gordon train) Only two stations announced and no further information. | Limited Information | Fault noted in driver to guard intercom on 26 May 2011. Checked no fault found on 27 May 2011. |
| 7 June 2011 | Roseville to Town Hall (Penrith train) Understood one announcement the rest of the announcements made all too soft to hear. | Limited Information | No PA communications system fault noted. |
| 7 July 2011 | Wynyard to Wollstonecraft (Berowra train) [Likely to be a Hornsby Train] - Understood one announcement the rest of the announcements made all too soft to hear. | Limited Information | [Not enough info to identify train.] |
| *11 July 2011 P42 | Roseville to Wynyard (Richmond train) - No announcements made. | No Information | No PA communications system fault noted. |
| 13 July 2011 | Roseville to Wynyard (Emu Plains train) [Likely Penrith Train]- Understood one announcement the rest of the announcements made all too soft to hear. | Limited Information | Fault noted in PA communications system on 10 July 2011. Faulty part replaced on date not provided. |
| 14 July 2011 | Roseville to Wynyard (Emu Plains train) [Likely Penrith Train]– Only three announcements made, all too soft to hear. | No information | Fault noted in PA communications system on 10 July 2011. Tested and working OK on 14 July 2011. (Appears to be the same train as 15 July 2011 – below) |
| *15 July 2011 | Roseville to Wynyard (Emu Plains train) [Likely Penrith Train]– No announcements made. | No information | Fault noted in PA communications system on 10 July 2011. Tested and working OK on 14 July 2011. (Appears to be the same train as 14 July 2011 – above) |
| 26 July 2011 | Roseville to Wynyard (Blacktown train) – Did not hear any announcements as too soft. | No information | No PA communications system fault noted. |
| 28 July 2011 | Roseville to Parramatta (Richmond train) – Did not hear any announcements as too soft. | No information | No PA communications system fault noted. |
| 29 July 2011 | Roseville to Wynyard (Blacktown train) – Did not hear any announcements as too soft. | No information | No PA communications system fault noted. |
| 17 Aug 2011 | Roseville to Wynyard (Penrith train) – Did not hear any announcements as crackly and interrupted. | No information | No PA communications system fault noted. |
| 19 Aug 2011 | Roseville to Wynyard (St Mary’s train) [Likely Penrith Train]– Did not hear any announcements as crackly and interrupted. | No information | No PA communications system fault noted. |
| **20 Aug 2011 | Wynyard to Chatswood (Berowra train) [Likely Hornsby train]– No announcements made before most stations, announcements that were made before stations were too soft to hear. | No information | Fault noted in driver to guard intercom on 19 August 2011. Checked no fault found on 23 August 2011. |
| 22 Aug 2011 | Roseville to Wynyard (Richmond train) – Announcements too soft to hear. | No information | No PA communications system fault noted. |
| *26 Aug 2011 | Wynyard to Roseville (Hornsby train) – No stations announced. | No information | No PA communications system fault noted. |
| 31 Aug 2011 | Roseville to Wynyard (Blacktown train) Announcements too soft to hear. | No information | Fault noted in PA system on 30 August 2011. Tested and working OK on 2 September 2011. |
| 2 Sept 2011 | Roseville to Wynyard (Penrith train) Some not all stations announced. | Limited information | No PA communications system fault noted. |
| 2 Sept 2011 | Wynyard to Roseville (Hornsby train) -Some not all stations announced. | Limited information | No PA communications system fault noted. |
| 2 Sept 2011 | Roseville to Central (Penrith train) - Announcements too soft to hear. | Limited information | Fault noted in PA system on 1 September 2011. Checked no fault found on 2 September 2011. |
| **9 Sept 2011 | Roseville to Wynyard (Penrith train) – Most stations announcements but all too soft to hear. | Limited information | No PA communications system fault noted. |
| 11 of 36 Limited Information 25 of 36 No information 5 of 36 no stations announced 3 of 36 limited stations announced |
The final column is drawn from the evidence of Mr Eid who also produced a similar document. His makes reference to the set number of the train which he had described in his evidence as follows:
| Car Type | Set Type | Number of Cars | Years into Service |
| LRS car | LRS set | 496 | 1972-1980 |
| K car | K Set | 160 | 1981-1985 |
| C car | C Set | 56 | 1986 |
| Tangara car | T Set | 447 | 1988-1995 |
| Millennium car | M Set | 141 | 2002-225 |
| OSCAR car | H Set | 204 (total of 221 by mid-2013) | 2206-2013 |
| Waratah car | A Set | 96 (total of 470 at project completion) | 2001-onwards |
…
“47.The public address system used on the trains varies depending on the type of train and what public announcement technology it uses.
48.The Millennium, Oscar and Waratah sets are the most modern in the fleet and were designed in compliance with the Disability Standards for Accessible Public Transport 2002 (Cth). Relevantly, the Millennium, Oscar and Waratah sets utilise:
(a)automatic next stop announcement technology. This technology works by the driver inputting the run number at the start of the journey. The run information is linked to a pre-programmed stopping pattern. A Global Positioning System (GPS) in the train triggers a digital voice announcement when the train reaches a certain pre-programmed point on the railway line; and
(b)non-fixed gain amplification system for manual public announcements. This allows the output volume to remain constant regardless of softness of speech.”[6]
[6] Mr Eid’s affidavit, [47] to [48].
It seems clear from Mr Eid’s evidence that the most modern train sets, which have automatic next stop announcements based upon a GPS system, are very much in the minority on the suburban line used by Mr Innes. Mr Innes has no complaints about trains that operate this system but he specifically resiled from any suggestion that retro fitting those train sets that did not have the system would constitute a reasonable adjustment as referred to in ss.5 and 6 of the DDA. The column “Outcome/level of information” refers to the level of information that Mr Innes received in respect of the next stations on the individual journeys. Where some stations were announced in an audible manner but not all the words “limited information” appears; where the information was not audible the words “no information” appears. It is to be remembered that this table refers only to those journeys where Mr Innes complained to AHRC that he did not receive clear audible next station announcements.
It will be seen from the table that whilst some of the faults were due to the PA communication systems, most of them were constituted by the failure of the guard either to make announcements at all or making them inaudibly. Mr Innes’ case is that whilst a nil failure rate for guard made announcements is the ideal, human error must always be acknowledged, as should the possibility of technical failure. Whatever percentage of journeys taken this might constitute it would not reach the 19 percent failure rate experienced by Mr Innes on the 315 journeys. The gravamen of Mr Eid’s evidence was, first that the failure rate experienced by Mr Innes was not so severe that it constituted discriminatory conduct, second that improvements had been made since that time (that submission being accepted by Mr Innes as establishing that the 19 percent failure rate was too high) and third that the systems currently in place were sufficient to make continuous improvements in the failure rate. The gravamen of Mr Buck’s evidence was that none of the material he saw provided what he considered to be basic compliance information for effective management of the issue. He made this conclusion based on principles outlined in the Australian Standards on Compliance Programs (AS3086-2006) and the type of information used in the development and assessment of competency based training in line with the requirements of the TAE40110 certificate for training and assessment issued under the Australian Qualifications Framework. He outlined five additional steps that could be taken:
“1.The establishment of competency standards for the making of announcements.
2.The establishment of suitable tests and assessments for measuring and assessing competency standards in making audible announcements.
3.Ensuring that disciplinary procedures apply both to those who fail to make audible announcements and those who fail to report such failings.
4.Identifying and communicating to the whole organisation the risk of inaudible announcements.
5.Ensuring that complaints made by the public are investigated.”
The statutory scheme
The Disability Discrimination Act came into force in 1992 and was substantially amended in August 2009. It is the Act, subject to those amendments, which is relevant for the purposes of these proceedings as the complaints made by Mr Innes were made in respect of alleged discriminatory activity that took place post the amendments. In its opening submissions the respondent noted:
“[38]The Court must be satisfied that it has jurisdiction where the Act is expressed to be an act of limited operation with respect to s.24:[citation omitted] see ss 12(1) and 12(4) of the Act.
[39]The Applicant has not addressed s 12 of the Act. The Points of Claim and his submissions dated 9 August 2012 do not address the basis upon which the Act applies.
[40]The Respondent submits that jurisdiction should not be assumed. It is proper for the grounds to be identified, particularly because those grounds may have a bearing on the construction of the Act and the application of the Act to the circumstances of the case. The Respondent reserves its rights with respect to whether there is a proper basis for jurisdiction. It is not apparent how s12 confers jurisdiction with respect to a claim about “audible announcements about each stop each train was to make”. The Respondent will address this issue in more detail in its final submissions.”
Counsel for the respondent may recall my decision in Vance v State Rail Authority [2004] FMCA 240 in which she appeared. At [49] I said:
“[49]The respondent argues that the DDA is expressed to be an Act of limited operation. The respondent claims that the applicant has not identified the basis upon which the claim comes within the scope of s 12 and puts forward an argument that international concern (s 12(8)(e)) which provides the authority for the Parliament to make such laws, must exist at the time of the enactment of the domestic legislation. This submission is contrary to the findings of Merkel J in Souliotopoulos v Latrobe University Liberal Club [2002] FCA 1316 at [31] where his Honour found that the relevant date is the date of contravention. Whilst Souliotopoulos is not binding on me it is to my mind persuasive and well argued authority from which I would not demur. I would also note that I would be reluctant to accept the respondent’s submission that the fact that the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations in Resolution 3447(XXX) of 9 September 1975 is silent on the question of public transport services does not mean that those services could not, by implication, be included. I would also note that Rule 5 of the United Nations “Standard Rules on the Equalisation of Opportunities for Persons with Disabilities” (adopted by the General Assembly on 20 December 1993) states:
“Access to the Physical Environment
States should initiate measures to remove the obstacles to participation in the physical environment. Such measures should be to develop standards and guidelines and to consider enacting legislation to ensure accessibility to various areas in society, such as housing, public transport services and other means of transportation, streets and other outdoor environment.” (emphasis added)
For these reasons I am satisfied that the applicant has not failed to demonstrate that her claim is covered by the DDA and would not propose to dismiss it on the basis that the court has no jurisdiction.”
The situation has been made even more clear since the 2009 amendments because s.12(8)(ba) makes specific reference to the Disabilities Convention. Article 9 of Convention on the Rights of Persons with Disabilities and Optional Protocol deals with accessibility:
1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:
(a)Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
(b)Information, communications and other services, including electronic services and emergency services.”
2. States Parties shall also take appropriate measures to:
(a) Develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public;
(b) …
(c)…
(d) …
(e) …
(f)Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information.”
[Emphasis added]
The respondent continues its questioning of the court’s jurisdiction under s.12 of the Act in its final submissions. It notes the reliance of the applicant on s.12(8)(ba) of the Act and the applicant’s claim that ss.24 and 32 have effect in relation to discrimination against a person with a disability to the extent that they give effect to the Convention. It remains critical of the applicant for not addressing how ss.24 or 32 give effect to those articles. At [34] of the Final Submissions the respondent says:
“[34]The Respondent accepts at a high level of generality that s 24 and the Standards relevantly give effect to article 9(1) with respect and article 9(2)(f) with respect to promoting ‘other appropriate forms of assistance and support to persons with disabilities to ensure their access to information’ but notes that the Applicant’s claim that he has a right to ‘audible announcements about each stop each train was to make’ is not supported by the CRPD.”
The authorities which the respondent cites are those which indicate that jurisdiction should not be assumed although in none was it declined; Robinson v Commissioner for Police [2012] FCA 770 at [116]; King v Jetstar Airways Pty Limited (No 2) [2012] 286 ALR 149[7] at [31] but it does not make reference to the finding of this court in Vance at [49] set out previously.
[7] “King”
In my view the amendment to s.12 to include the Convention on the Rights of Persons with Disabilities adds emphasis to the findings made in Vance. The association between the Convention and the applicant’s claims is best seen through the light of the service which the applicant says was provided in a discriminatory manner. I am satisfied the court has jurisdiction under s.12.
The dispute between the parties as to the meaning, force and effect of the other sections of the DDA that are relevant are, regrettably, not so amenable to speedy resolution.
The following sections of the Act have a bearing on the case made in this court.
“Section 3
“Objects”
The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
Section 4
Disability
"disability" , in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions;
"reasonable adjustment"
an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.”
Sections 5 and 6 of the Act define discrimination:
“[5] Direct disability discrimination
(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.
[6] Indirect disability discrimination
(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:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(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 requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.”
Part 2 of the Act is headed “Prohibition of Disability Discrimination” and commences at s.15. Section 24 refers to Goods, services and facilities” and is in the following form:
“[24] Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.”
Section 32 of the Act provides:
“[32] Unlawful to contravene disability standards
It is unlawful for a person to contravene a disability standard.”
Under s.31(1) provision is made for the making of disability standards with respect to public transport. The relevant standard is the Disability Standards for Accessible Public Transport 2002. It came into force on 23 October 2002 and has been amended three times. The format of the standard is divided between conveyances, premises and infrastructure. Clause 27.4 of the Standards under the heading “Conveyances” and dealing with access to information about location states:
“All passengers must be given the same level of access to information on their whereabouts during a public transport journey.”
The transport standards are supported by the Transport Standards Guidelines. Relevantly Part 27.1 of the Transport Standards Guidelines state that:
“The disability standards provide that operators or providers will supply all passengers with information necessary to use a transport service.”
The approach taken by the parties to the task of the court was first to have the court consider whether or not the respondent was providing services to the applicant and then to consider whether or not it was discriminating against him in the provision of those services.
Disability
It is not disputed that Mr Innes has a disability as defined in s.4 of the Act and in respect of which he is entitled to the protection of the Act.
The Services
Although in his submissions in reply to the respondent’s opening submissions Mr Innes indicated that:
“The services that were not provided were services announcing the whereabouts of the relevant trains on which he was travelling for that duration for each of the thirty-six train journeys specified.”
during the course of the hearing the parties agreed that the definition of the service for the purposes of the case would be as follows:
“The service is the provision of railway transport between designated points at particular times and on particular routes of the respondent’s railway network.”
It is the applicant’s case that in order to obtain the full benefit of the service a user must know where he is on the network at any time so that he may alight at his destination. That part of the service which is constituted by providing the information as to the whereabouts of the train on the network is provided by signage that a blind person is not able to avail himself of. It is also provided by announcements. If the announcements are not made or are not audible the blind person is unable to be certain where he is on the network and he receives less favourable treatment than a sighted person. The provision of information as to the whereabouts of a person on the network is an essential element of the service without which the service would not be viable so that if that information is not provided then there has been no provision of the service.
It is my understanding that the parties were in agreement with this definition of services and it is therefore unnecessary for me to make findings as to whether the services have been properly identified. What is in dispute, however, is whether the actions of the respondent in respect of the thirty-six journeys, constituted a refusal to provide Mr Innes with services, (s.24(a)), or were discriminatory on the grounds of the terms or conditions upon which the services were provided (s.24(b)) or were discriminatory in the manner in which the services were made available to Mr Innes (24(c)). But before one turns to that consideration I am obliged to make a finding as to whether the argument put by the applicant that the services would be nugatory without the provision of clear and audible announcements and so a failure to provide an essential element of the service constitutes a failure to provide the service.
The respondent argues that the provision of information as to the whereabouts of a train upon its journey between departure point and destination is not an essential part of the service. It argues that travellers in a bus do not have this information and nor do travellers in an aeroplane. It is easy to dismiss the argument relating to aeroplanes because the fact is that oral announcements are made whenever an aeroplane lands at a destination so a passenger will know where he or she is. Without appearing supercilious it should also be noted that passengers do not have the ability to leave an aircraft at any time during flight. The situation on buses is slightly different although, at least in Sydney (and that is the city in respect of which this case is concerned), many bus stops now have signage indicating their whereabouts. And a bus is not a train. It is a relatively small conveyance driven by a driver who is accessible to the public and who can be, and expects to be, asked to announce specific destinations for passengers who are unaware of them. The driver of a train is not so accessible. The evidence is that most of the trains upon which Mr Innes travelled had eight carriages, and a limited number had either four or six carriages. A blind person would not know in which carriage the guard might be when he boarded the train or the extent to which the guard would be moving from carriage to carriage in connection with his or her duties. It goes without saying that passengers on a railway need to know when they have reached their destination. Unlike air travel their destination will not always be, and frequently will not be, the final and (equally frequently only), stop on the journey. Thus information as to the name of the stations through which trains pass is essential for any traveller to know where to get off. Alighting a train may involve leaving one’s seat and moving to the door. It may involve picking up luggage stowed elsewhere or above the seat, it may involve closing down equipment such as a computer being utilised on the journey. It may involve going to the toilet prior to a lengthy walk from the station and it may involve telephoning ahead to advise a person of the passenger’s arrival so that he or she may be picked up at the station.
All these things require stations to be identified so that a passenger may know his proximity to his destination. To argue that there is no necessity for all passengers to know their whereabouts at all points in the journey misunderstands the nature of the service. On any one train there will be passengers getting out at all stops along the line and whilst each of them may only have need of the identification of the stations one or two stops ahead of their final destination, for all the passengers in the train all the stops need to be identified. The service is provided to all the passengers of whom Mr Innes is one. I am unable to accept an argument that the provision of information as to the whereabouts of a train upon its journey being made known to passengers is not an essential part of the service of the provision of railway transport between designated points on the respondent’s railway network.
Refusal of Service
The applicant argues that the respondent refused him the service invoking s.24(1)(a). Of that section and the word “refusing” Moore J said in Wood v CalvaryHealth Care ActLtd [2006] FCA 1433:
“[28]A beneficial construction of s 24(1)(a), particularly the word "refusing", is therefore to be preferred. There do not appear to be any authorities considering the meaning of that paragraph in the context of an intermittent inability to provide goods or services. Although s 24(1) requires that the putative discriminator be a person who provides goods or services, this may simply be directed at whether the person holds him or herself out as providing such goods or services, in the ordinary course. The word "refusing" may reflect a requirement that a request for the provision of the goods or services has been made apparent by the complainant, for example. This was accepted as being a precondition to the ability to refuse a service in Kowalski v Domestic Violence Crisis Service[2005] FCA 12. Similarly, in the present case, the Federal Magistrate accepted the need for some request to have been made by the appellant for treatment at home. In my opinion, s 24(1)(a) does not cease to apply where a putative discriminator is for some reason temporarily unable to provide the goods or services.”
To the extent that there must be a request for the service I am satisfied that such a request was made in the meeting between Mr Innes and Mr Mason on 27 September 2010. Although in that meeting Mr Innes concentrated on the accessible transport standards there is no argument that the subject of the complaints was clear and audible onboard announcements. There is no evidence that Mr Mason refused in the way that word is normally understood to provide such announcements so the question is whether the failure to provide such announcements on the thirty-six journeys, being 19 percent of the journeys taken by Mr Innes during the relevant period, constituted a refusal by implication.
“Refusing” is not defined in the DDA and so the word should be given its ordinary and natural meaning, whilst bearing in mind the requirement that the section should be interpreted so as to be conform with the purpose or object of the DDA: Acts Interpretation Act 1901 (Cth) ss.15AA and 15AB. The parliament’s use of the present participle indicates to me that the refusal need not be instant but may be ongoing. The Macquarie Dictionary (3rd Edition) defines “refusal” as:
“1. the act of refusing”
and “refuse” as:
“1. to decline to accept (something offered): to refuse an office. 2. to decline to give; deny (a request, demand, etc.). 3. to express a determination not (to do something).”
But these offer little clarification as to the temporal quality of a refusal or whether refusal may be by implication in the case that it is not direct.
“Refusal” was considered in the context of s.24(1)(a) by Robertson J in King supra at [178 – 188]. In that case Mrs King was told that she could not take a particular flight. Robertson J had, earlier in his judgment, found that the service was not the provision of wheelchair assistance to Ms King but the flight from Adelaide to Brisbane on 23 September 2008 [183]. His Honour said at [184 – 186]:
“[184] In my view, the two related reasons why Mrs King’s booking was not accepted for flight JQ 769 on 23 September 2008 were first that she needed assistance and second that Jetstar provided that assistance for a limited number of passengers on that flight, among other flights, that number being a maximum of two.
[185]The ground on which Jetstar refused to provide that service to Mrs King was Mrs King’s disability. If Mrs King had not had that disability then Jetstar would have provided the service to her. A person without Mrs King’s disability would have been allowed to make a booking to fly on JQ 769 on 23 September 2008.
[186] I find that the s 24(1)(a) direct or s 5 discrimination complaint is made out.”
I do not think his Honour’s findings assist me in my task because in this case there is no evidence of the type of refusal with which he was concerned.
Words and Phrases Legally Defined[8] provides several references to English authorities that consider “refusal” in the context of succession. Reference is first made to Partridge v Partridge [1894] 1 Ch 351 in which North J, opined in relation to the phrase “refusal or neglect” and in the context of whether an infant could “refuse”:
“…the question is, whether the infant Plaintiff was bound within those three months to enter into occupation of the house, and to continue to reside there for nine months in every year. In my opinion, the Plaintiff was not bound to do this, and he is entitled to the estate. As I pointed out just now, the effect of these limitations is not to give him the estate on condition that he resides and occupies the house, but they are expressed as taking away the estate from him if he does not fulfil the condition, and we must see on what precise event the estate is to go over. The only event mentioned is, if the person who becomes entitled to the estate "refuses or neglects" to reside in the house; and an infant cannot "refuse or neglect" to reside in a particular place if the persons to whom his legal custody and care are committed do not choose that he shall do so. The words are not if he "omit" to reside, or if he "does not reside," but if he "refuse or neglect" to reside; and, in my opinion, an infant, who cannot control or fix the place where he is to reside, cannot within the terms of this clause be said to "refuse or neglect" to reside at the place mentioned: and for this reason also the clause does not apply to the infant Plaintiff during his infancy.”
[8] John B. Saunders, Words and Phrases Legally Defined (Butterworths, 1990).
Warrington J. relied upon Partridge in Re Edwards, Loyd v Boyes [1910] 1 Ch 541,[9] in coming to the conclusion that:
“The expression “refuse or neglect” involves the idea of some exercise of discretion, some exercise of will, on his part.”
Re Edwards, in turn, was relied upon by Romer J in re Quinton Dick. Lord Cloncurry v. Fenton [1926] Ch. 992 in finding that one required knowledge of such a clause for it to be possible to refuse its terms. His Honour opined (at 999 to 1001):
“The question that I have to determine is whether a person of the name of Barrett, who is alleged to have become entitled in the year 1923 to the possession of the settled property as tenant in tail male, in complete ignorance not only of the fact that he had so become entitled, but even of the very existence of the will and its contents, and who remained in such ignorance for a year or two thereafter, can be said to have "refused or neglected" to take the name and arms of Dick within the meaning of the clause. It is not disputed by him that ignorance of a condition cannot prevent a forfeiture clause for breach of the condition coming into operation. But he does contend that, inasmuch as the question of whether he should or should not take such name and arms was never presented to his mind, he cannot be said to have either refused or neglected to do so, and that the forfeiture clause accordingly never came into operation at all. It is contended on the other hand that the word "neglect" means no more than "fail" or "omit."
Now if the testator intended a forfeiture to take place in the event of a beneficiary failing to take the name and arms within the period of three months from his becoming entitled to the possession of the settled property I cannot understand why he did not say so. The word "fail" would without any doubt include every omission, whether the question of taking the name and arms presented itself to the mind of the beneficiary or not. It would therefore cover the case of a refusal, and the specific reference to a refusal would have been quite unnecessary. The testator must I think be taken to have had some reason for using the word "refuse" and to have used it deliberately, and the fact that he did use it suggests very strongly to my mind that he was directing his attention to the case of a beneficiary to whose mind the question had presented itself. If such a beneficiary in terms expressed his intention of not taking the name and arms, that would amount to a refusal. If, however, without expressing that intention, he merely omitted to comply with the condition, it might be doubtful whether in strictness he had refused or not. As to this see Doe v. Beauclerk [11 East, 657], in which it was said that a refusal imports that the thing refused was proposed to the refusing party, and Doe v. Hawke [102 E.R. 453; (1802) 2 East 481], in which Lawrence J. said that a refusal need not be express.
The testator might, therefore, very naturally add the word "neglect" to cover the case of a refusal that was not express. But I cannot think that it would be natural or in accordance with the ordinary use of language to add the word "neglect" in order to cover every case of failure… ”
[9] “Re Edwards”.
These authorities have found some, albeit sparse, following in Australia. Re Edwards was referred to in the New South Wales Supreme Court case of Boon v Maher (1986) 7 NSWLR 232. That case related to an alleged refusal to allow health inspectors access to sausage samples in circumstances where the butcher, unaware of the request, had sold the sausages in question. Campbell J followed Re Edwards in requiring of “refusal” knowledge of the request but also considered the term “refusal” as follows:
“The relevant definition of “refuse” in the Concise Oxford Dictionary, 6th
ed is “Say or convey by action that one will not …”.The word conveys more than a mere failure or inability to do something as
is exemplified by its frequent use with other words such as “or fails” (Re
Davies-Roe and the Companies Act (1965) 83 WN (Pt 1) (NSW) 10 and “or
neglect” (Re Edwards; Lloyd v Boyes [1910] 1 Ch 541).In Edwards' case Warrington J held (at 550) that: “… The expression “refuse or neglect” involves the idea of some exercise of discretion, some exercise of will ….”
There is not to be found in s 38(b), or in the scheme of the Act itself, any limitation upon or extension of the meaning of the word “refuse” and it should be taken to have its ordinary and natural meaning.
It is my view that upon the facts as found by the learned magistrate, there
is no evidence upon which it could be found that there was a refusal to supply by either of the respondents charged. They were unable to supply because there were no thin sausages from which to supply a sample; but that inability does not amount to a refusal and nothing else occurred, on the facts as found, which could be held to be a refusal.”In Australian Federation of Air Pilots v Ansett Transport Industries(Operations) Pty Ltd (1991) 28 FCR 379, Gray J affirmed Campbell J’s approach.
I am somewhat reluctant to compare the provision of the service as defined in the present case, to that of the provision of “thin sausages”. However, although these cases are not directly on point, they appear to stand for the proposition that “refusal” requires prior knowledge of some offer, right or request, which in turn allows for “the exercise of will”, but also that a refusal may be implied through one’s actions or inaction. I am of the opinion that RailCorp could refuse to provide the defined service through its failure to accede to the request of Mr Innes. It was aware of the request, indeed it had indicated it would address Mr Innes’ concerns, although up to the point of the complaints it may not have acted effectively upon that request. But I am reluctant to find that this would constitute “refusal” where it is the Respondent’s policy to provide the services in a way they can be accessed by Mr Innes and they are making some (perhaps rather ineffectual) efforts to ensure that this occurs.
The Terms and conditions of the provision of the service
The applicant submits that the condition on which the service was provided to Mr Innes was that his whereabouts would be indicated by signage that had to be read visually because the alternative of clear audible announcements was not made available. In Forrest v Queensland Health [2007] 161 FCR 152 Collier J extracted from the authorities what she considered to be the relevant principles in relation to the concept of “requirement or condition” which was then found in s.6 of the Act and is still found there. The wording of s.24 refers to a term or condition rather than requirement or condition. The word “term” is generally used in connection with a contractual arrangement. Given the way the applicant puts his claim in this regard and noting:
“The expression “requirement or condition” should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition; Dawson and Toohey JJ in Waters 173 CLR at [394]; Clark 138 FCR at [143].”
It is perhaps not necessary to be overly concerned with the distinction.
The Catholic Education Office v Clarke [2004] 138 FCR 121[10] was an appeal from a decision of Madgwick J where a profoundly deaf boy was only allowed to attend college on the basis that he adhered to the college’s model of support for hearing impaired students that did not include signing or Auslan assistance. Tamberlin J said at [11]:
“[11]It is true that the model support program might possibly provide some benefit to a profoundly deaf pupil, but that is not the issue. To approach the question in this way concentrates on additional benefits being given to those who do not need them and detracts from the question posed by the language of the Disability Discrimination Act 1992 (Cth) (the DD Act) which is whether Jacob, as a profoundly deaf person, is required to comply with a condition with which non-deaf persons are able to comply. … If it is a condition of admission that Auslan assistance will not be provided, then non-deaf students can receive a full education while Jacob, because of his disability, is not able to receive the full benefit of this education. He cannot comply with this requirement if he is to obtain the educational benefits offered by the College.”
[10] “Catholic Education Office”
Having come to the conclusion that providing information as to the whereabouts of persons on the train at any given time is an essential part of the service as defined then on those occasions, when because of inaudible or non-existent oral communication Mr Innes was unaware of where he was on the journey, I would find that the services had been provided to him subject to a condition that he made himself aware of where he was by utilising his sight.
The manner in which the services were provided
The applicant argues that the manner in which the service was provided on those occasions of which Mr Innes complains was limited to signage that had to be read visually.
The respondent argues that the manner in which the respondent provided information about the routes and stops along those routes was not primarily visual. On the applicant’s own evidence this information was provided between 80 and 82 percent of the time orally. These submissions then go on to detail at some length the features of stations at which journeys may be commenced and the accessible features there. The submissions deal with the fact that RailCorp encourages passengers to plan a trip before commencing a journey and utilising the network maps to do so, providing particulars of all the ways in which locations on the network are identified to a passenger and refers to a guide entitled “Accessing City Rail” designed to assist customers to plan and use the City Rail network, a copy of which can be obtained in Braille. It would be wrong to denigrate these efforts, but many of them were directed at what a passenger might find at the departure station rather than on the train and I do not believe that any amount of planning can be guaranteed to tell you where you are if you cannot read the station signs on the station platforms, or information screens within and without trains, and clear audible announcements are not made. The submission that the failures did not occur on over 80 percent of the journeys is one that must be considered as it has a general relevance. But it does not detract from the fact that on those 19 percent of journeys where there were no clear and audible announcements, the services were provided in a manner that was limited in its utilisation by sight impaired persons and Mr Innes in particular. The respondent submits that the applicant’s claim is based upon a fundamental misunderstanding of s.24 with respect to the meaning of service and the elements which have to be established for the purposes of s.24(a)(b) and/or (c) of the Act. It submits that the applicant has failed to adduce any evidence relevant to this aspect of the claim and he bears the onus of proof. I do not believe that these arguments stand scrutiny given the agreed definition of the services and my finding that it was an essential term of the service that passengers on a train know where they are. I am not prepared to dismiss this claim on the basis that s.24 cannot be utilised.
Direct discrimination
Section 5 of the DDA has been extracted at [28] of these Reasons. The applicant relies solely on the provisions of s.5(2). He points out that this sub-section is new to the Act since August 2009. As the Australian Human Rights Commission says in its helpful publication “Federal Discrimination Law”[11]
[11] Australian Human Rights Commission, Federal Discrimination Law (21 October 2011) Australian Human Rights Commission < (henceforth ‘AHRC Publication’).
“5.2.4 Reasonable adjustments
From 5 August 2009, the DDA creates an explicit duty to make reasonable adjustments for people with disability.
The duty is embedded into the definitions of both direct (s 5(2)) and indirect (s 6(2)) discrimination. The Explanatory Memorandum to the amending legislation states:
Until relatively recently, the general view, including in the case law, was that the Disability Discrimination Act impliedly imposes such a duty if such adjustments are necessary to avoid unlawful discrimination – subject to the defence of unjustifiable hardship. This view was supported by the Explanatory Memorandum of the Disability Discrimination Act and Second Reading Speech delivered when the Disability Discrimination Act was first enacted.[12]
[12] Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, 8 [38].
The introduction of a duty to make reasonable adjustment is also consistent with the requirement to make ‘reasonable accommodation’ in the Disabilities Convention.[13]
3Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, 8 [38].
4 See Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, 9 [41-7].In the educational context, the Disability Standards for Education 2005 (‘Education Standards’) also impose a positive obligation on education providers to make ‘reasonable adjustments’ to accommodate the needs of students with disabilities (see discussion under 5.2.6(b)).
‘(a) Reasonable adjustments’
‘Reasonable adjustment’ is defined in subsection 4(1) as follows:
[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.
[13] See Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, 9 [41-7].
Accordingly, ‘reasonable adjustments’ are all adjustments that do not impose an unjustifiable hardship on the person making the adjustments.[14]
[14] Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, 8 [36].
(b) Direct discrimination under s 5(2)
Section 5(2) provides:
5(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.
The Explanatory Memorandum states that:
New subsection 5(2) provides that a person is discriminating against another person if he or she fails to make, or proposes not to make, reasonable adjustments for the person with disability, where the failure to make such adjustments has, or would have, the effect that the person with disability is treated less favourably than a person without disability in circumstances that are not materially different.[15]”
[15] Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, 8.
The way in which RailCorp assists people to comply with the condition that applies to all is by the provision of signage. Because of Mr Innes’ disability he will only be able to comply with the requirement that he know his whereabouts if RailCorp made reasonable adjustments. Those reasonable adjustments are said to be the provision of clear audible next stop announcements. RailCorp did not provide that adjustment on 18 to 20 percent of Mr Innes’ journeys over the relevant period. That failure was in excess of the vicissitudes as on the evidence RailCorp accepted that it could do better. The failure to make the adjustment had the effect of disadvantaging Mr Innes in the manner deposed to by him. The respondent has not satisfied me that the requirement or condition was reasonable having regard to the circumstances of the case for the same reasons as it did not satisfy me in relation to the claim under s.6(1). The applicant argues in addition that the respondent is effectively estopped from suggesting that the requirement or condition was reasonable because of the existence of the general order in mandatory terms that clear audible next stop announcements should be made by guards on every train, a submission I would respectfully adopt. The court finds that if the respondent had grafted a compliance system of the type suggested by Mr Buck onto its own standards and General Orders that would constitute a method of ensuring the reasonable adjustment of providing clear audible announcements that in turn would have the effect of allowing it to provide the service to Mr Innes. Again, the effect of this finding is that it provides an additional manner in which s.24 of the DDA has been breached.
Contravention of Transport Standards
The claim in respect of the Disability Standards is put by the applicant in his Points of Claim in the following form:
“[24]The Respondent is an operator and/or provider of a public transport service within the meaning of section 1.20 and 1.22 of the Standards and was therefore required to comply with the Standards from the date they commenced, namely 23 October 2002.
[25]The Respondent contravened the Standards on the Journeys with Inaudible Announcements and/or Journeys Without Announcements because:
(a)The Journeys occurred after the target date for compliance (Part 33.2 and Schedule 1 of the Standards);
(b)General information about the Respondent’s transport services was not accessible to the Applicant, specifically information about the Applicant’s whereabouts on the transport system (part 27.1 of the Standards);
(c)the Applicant was not given the same level of access to information on his whereabouts, specifically, those without a sight disability could see where they wee from signage on the platforms and from train information provided in the carriages (part 27.4 of the Standards); and
(d)the Respondent did not provide any direct assistance to the Applicant (part 33.3 of the Standards);
[26]The Respondent breached section 32 of the DDA when it contravened the Standards as set out in the paragraph immediately above.
[27]By reason of the facts and matters set out in the two paragraphs immediately above and paragraph 10 the Applicant ought be awarded general damages in the amount of not less than $1,000.00 in general damages per each breach of the DDA as listed in paragraph 3.”
In the AHRC publication the following appears in regard to Disability Standards:
“5.2.6 Disability standards
Section 31(1) of the DDA provides that the Minister (the Attorney-General) may formulate ‘disability standards’ in relation to ‘any area in which it is unlawful under [Part 2] for a person to discriminate against another person on the ground of a disability of the other person’.
Section 31(2)(a) provides that, without limiting s 31(1), a disability standard may deal with:
(i) reasonable adjustments;
(ii)strategies and programs to prevent harassment or victimisation of persons with a disability;
(iii) unjustifiable hardship;
(iv)exemptions from the disability standard, including the power (if any) of the Commission to grant such exemptions.
Generally, the standards will prevail over State and Territory legislation, however s 31(2)(b) also provides that a disability standard may provide ‘that the disability standard, in whole or in part, is or is not intended to affect the operation of a law of a State or Territory’.
It is unlawful for a person to contravene a disability standard. The exemption provisions (Part II Division 5) generally do not apply in relation to a disability standard. However, if a person acts in accordance with a disability standard the unlawful discrimination provisions in Part II do not apply to the person’s act.
(a) Transport Standards
The Disability Standards for Accessible Public Transport 2002 (‘the Transport Standards’) were formulated under s 31 of the DDA and came into effect on 23 October 2002. The Transport Standards apply to operators and providers of public transport services, and set out requirements for accessibility of the premises, conveyances and infrastructure that are used to provide those services.[86] The application and operation of the Transport Standards is yet to be squarely considered by the courts at the date of publication.”
The respondent accepts that it is an organisation which is bound by the Transport Standards and that they commenced on 23 October 2002. In his opening submissions Mr Innes argued:
“[45]The Transport Standards were made consistent with section 31 of the DDA and relevantly provide,
1.2 Purpose of Standards
(1)The Disability Discrimination Act 1992 seeks to eliminate discrimination, ‘as far as possible’, against people with disabilities. Public transport is a service covered by the Disability Discrimination Act 1992.
(2)The purpose of these Standards is to enable public transport operators and providers to remove discrimination from public transport services.
1.4Application of Standards
(1)These Standards apply to the widest possible range of people with disabilities as defined by the Disability Discrimination Act 1992.
(2)These Standards apply to all operators and the conveyances they use to provide public transport services. They also apply to providers and supporting premises and infrastructure.
[46]In addition to the Transport Standards, there are Guidelines, which, in the words of the Transport Standards read (at 1.5), “Passengers, operators and providers need to consult the Guidelines when interpreting these Standards.”
[47]Division 1.2 of the Transport Standards, makes it clear that “[u]nless the contrary intention appears, any other term that is used in these Standards and in the Disability Discrimination Act 1992 has the same meaning in these Standards as it has in the Act.” A “conveyance” includes trains (at 1.12(1)(e) of the Transport Standards). Park 1.6 defines equivalent access as,
(1)Equivalent access is a process, often involving the provision of direct assistance, under which an operator or provider is permitted to vary the equipment or facilities that give access to a public transport service, so long as an equivalent standard of amenity, availability, comfort, convenience, dignity, price and safety is maintained.
(2)Equivalent access does not include a segregated or parallel service.
[48]The Applicant pleads breach of Parts 27.1 and 27.4 of the Transport Standards, set out below,
Part 27 Information
27.1 Access to information about transport services
General information abut transport services must be accessible to all passengers.
Conveyances Premises Infrastructure__________________________
27.4 Access to information about location
All passengers must be given the same level of access to information on their whereabouts during a public transport journey.
Conveyances ___________________________________________
[49]Parts 27.1 and 27.4 apply to the Respondent’s rolling stock (and specifically those trains used by the Applicant during the thirty-six relevant journeys) being “conveyances” within the meaning of the Transport Standards.
[50] The Guidelines in relation to Part 27 of the Transport Standards state,
Part 27 Information
27.1 Assumption of minimum literacy and language standards
(1)The Disability Standards provide that operators or providers will supply all passengers with information necessary to use a transport service.
(2)However, the Disability Standards assume that passengers have a minimum level of literacy and language skills.
27.2Formats for providing information
(1)Operators and providers should expect requests for information in formats such as standard or large print, Braille, audio, touch-tone telephone, TTY and on-line computer or disks.
(2)Passengers should anticipate that certain formats may only be available from certain outlets. For example, while bus drivers may provide oral information on timetables and bus routes, they should be expected to have alternative format timetables on hand.
(3)If it is not possible for operators or providers to supply information in a particular format, passengers may expect assistance to be provided to enable them to use documentation in the available formats, for example, the provision of a photocopy enlargement of a timetable.
(4)However, essential travel and safety information, such as emergency instructions on aircraft, must be available in an accessible format or direct assistance must be given.
(5)Operators could choose to announce scheduled stops as one way of informing passengers of their whereabouts during a journey.
[51]There is no doubt that the Transport Standards require compliance from all new conveyances (as per Part 33.1 of the Transport standards and the Guidelines.)
[52]The Applicant says signage on stations and in trains regarding the whereabouts of the train during the relevant journeys is “general information” within the meaning of the Transport Standards. Further, it is clear from the evidence of the Applicant’s witnesses, both sighted and not, that those who are not blind have more information about their whereabouts during the train journeys. It is also a matter about which judicial notice can be taken in relation to the particular journeys the subject of the claim.
[53]Part 33.7 of the Transport Standards provides that it is not unlawful to fail to comply with a requirement of the Standards “if, and to the extent that, compliance would impose unjustifiable hardship on any person or organisation.” The Applicant relies on the above submission with regard to unjustifiable hardship.
[54]For these reasons the Respondent breached the Transport Standards and therefore section 32 of the DDA.”
These submissions were complemented by submissions made on 5 November 2012 in the following form:
“[35]The parties’ submissions will stand or fall in respect of Part 27.1 of the Standards depending upon the meaning given by the Court to the term “general information”. The Standards use the same terminology as the DDA and say the Objects of the DDA are to apply to interpreting the Standards. The Applicant says knowledge as to whereabouts was general information within the meaning of the Standards.
[36]In relation to Part 27.4, the Applicant does not say the Respondent ought provide him information as to his whereabouts at every point of every journey (or every moment as put by the Respondent). The Applicant says he should know his whereabouts in respect of every station the train is approaching so he has time to disembark, so that he has the same level of information as those who can see.
[37]The Standards, including those with respect to Part 27.2, are to apply by reference to the context of the person with the disability. There is nothing in the Standards or the case law that authorizes reading down Part 27.4 by reference to Part 27.2 in the way suggested by the Respondent.
[38]The Applicant’s evidence is clear: without audible announcements his train journeys are stressful and difficult situations because of the lack of information provided to him, compared to other sighted train travellers. The Standards are about removing those inequities and ensuring those with disabilities have the same access to information as those without disabilities.”
In the applicant’s final submissions he states merely that he relies on his earlier submissions. The respondent has conceded that the target date for the implementation of the Guidelines for information is 31 December 2007. In the applicant’s closing oral submission he relied particularly on the standard contained in paragraph 27.4 of the standards requiring all passengers be given the same level of access to information on their whereabouts during a public transport journey as complemented by the Guidelines Part 27. The relevant sections have been set out in the extract from the applicant’s submission of 9 August, in particular 27.2(5):
“Operators could choose to announce scheduled stops as one way of informing passengers of their whereabouts during a journey.”
Mr Innes does not argue that the Guidelines have the force of law. They are an aid to understanding the rather abbreviated language of the standards themselves. It is not a requirement that announcements should be made but announcements can be seen as a method of providing information about location. If there is no undue hardship caused to a respondent in providing the announcements then it would be arguable that a breach of the standard had occurred if no announcement was made or if as a result of the inadequacy of the announcement a passenger was unaware of his whereabouts. Where there is scope for argument upon interpretation is when one descends from the general to the particular. Is the standard only breached if announcements are not made over the whole of the railway network or are they breached by reference to Mr Innes’ thirty six journeys? Is the standard breached only if there is no provision for announcements at all or where there is provision for announcements but the announcements are not made clearly and audibly either by reason of mechanical failure or by reason of employee failure?
In its written submissions the respondent first argues that the complaints about the announcements fall into six groups of which the majority consist of announcements being made but too soft (10.7% to 11.4%) and stresses that the applicant makes no attempt to address how each of the concerns falls within Part 27 of the Standards. It argues that a breach of the Standards is not available where the respondent complies with the Standards as a general rule and general practice:
“A claim that the Standards has been contravened should be for a failure to implement the particular measures to the whole of the relevant transport service, not the occasional or unexpected failures on one aspect of the overall information provided to passengers.” [155]
The respondent also submits:
“[157]Further, as the Respondent noted in its opening submissions, the only aspect of the Standards which is concerned with sound quality or audibility is Part 26 (see paragraphs 98-100). The Applicant does not rely on Part 26. If the issue is quality of the sound, then Part 26 being the specific provision addressing this issue should be considered.”
I would reject this approach. Mr Innes’ evidence is that the failure to provide the information was not sound quality that can be dealt with by a Standard. In those cases where the sound quality was too low or incomprehensible this was due to the action of the guard making the announcement. The submission ignores those cases where the announcements were not made at all either because of mechanical or employee failure. In oral submissions much time was taken up in a debate between myself and Ms Eastman as to the meaning of the words “same level of access”. I maintain the view that I put at that time that “the access to information on their whereabouts” means that all persons on the train should know their whereabouts at any given time. As I put it in relation to the discrimination claims, it will not do to provide everyone on the train with information in written form if some people on the train cannot read it because of a disability. That is not giving those people access to the information. Access to this information can only be provided to sight impaired persons, as this case has been argued, by announcements. There are other methods such as those used in Holland, but it is not suggested that they should be utilised in New South Wales.
There is as yet little authority on the interpretation of the Standards. Edmunds J gave a specific interpretation of a specific Standard in Killeen v Combined Communications Network Pty Limited [2011] FCA 27[87]. The matters of concern raised in this case did not appear in that but it was not suggested that the applicant had to show that it was not just one taxi that failed to comply with his understanding of the Standard but all of the taxis. In other words there was not an argument put that the Standards only applied in the general and not in the particular. The emphasis which has been placed in anti-discrimination cases brought before the Courts and State Tribunals that they must be decided upon the individual claims and not on some general view of what constitutes discrimination against persons with particular forms of disability, tends towards a view that one should look at the Standards in the context of Mr Innes’ own experience. In other words Mr Innes should not be required to make a general survey of the whole of the rail network to prove that the Standard has not been complied with. That, to my mind, would be a retreat into the situation pre the amendments where the requirement for comparators stymied many cases. In Killeen Edmunds J iterated the oft quoted opinion of Kirby J in IW v City of Perth [1997] 191 CLR 1 at [58]:
“Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation.”
[87] “Killeen”
The approach I would take with regard to the alleged breach of the Standards is to look at the number of occasions over the particular period when clear audible announcements were effectively not made and considered it as a percentage of the total journeys made. The accepted figure is 18 – 20 percent of those journeys. Mr Innes argues that this percentage goes beyond the bounds of the ordinary vicissitudes. The respondent brought no evidence to show that in the best laid plans a 20 percent failure rate would still indicate compliance. To make this statement is not to reverse the onus. For the reasons given previously in relation to these matters the applicant has satisfied me on a prima facie basis that a 20 percent failure rate is too great and it is therefore for the respondent by evidence to show that this should not be my final conclusion, and it has failed to do so.
What follows from this analysis is that I am of the view that RailCorp did breach the Disability Standard 27.4 and that the breach occurred over the whole period of the complaints and not on each individual occasion. This seems to me to be the proper way to look at a breach of this type caused as it is by persistent human failing rather than by mechanical maladjustment such as that claimed in Killen or as a result of a formal instruction and policy clearly contrary to the Standards. Where that type of situation existed any individual breach could constitute a breach of s.32 of the DDA. Even if I am wrong about this and each failure constitutes a separate breach I am of the view for the reasons given in the section upon damages that the net effect would be the same.
Damages
I have found in favour of Mr Innes that RailCorp discriminated against him in the provision of services and that it did so pursuant to s.32 of the DDA by breaching the Disability Standards. Mr Innes has claimed that he is entitled to damages for these breaches of the DDA and has indicated to the court the extent of the damages he claims and the manner in which those damages should be disposed. He supports his claim for damages in his affidavit by reference to the way in which he reacted to the failure to provide him with clear audible announcements. He does not do that in a particularised way in respect of each and every occurrence. He indicates that the feelings he experienced were common to all, however, there were occasions upon which the symptoms he suffered were heightened due to further aggravations. These occurred where he was not familiar with the journey being taken, as on 31 March 2011, and when the Harbour bridge was closed on 13 May 2011. I believe it is appropriate that damages be assessed on the basis of the heightened stress caused by those occasions. He has provided no medical evidence in support but he was not challenged upon his evidence.
I am prepared to accept the evidence of Mr Innes that he was caused stress and anxiety by the failure of RailCorp to make or keep him aware of his whereabouts on those individual train journeys.
In such cases as this, where there has been a continuous or oft-repeated breach of the requirements of the DDA, it is appropriate to treat those breaches as one cause of action for which damages compensate. It is now well established that when considering damages in relation to discrimination law, torts principles should apply: Hall v Sheiban (1989) 20 FCR 217. In the tort of negligence, a continuous breach of duty does not result in multiple causes of action unless the damage is aggravated on subsequent occasions: Hawkins v Clayton (1986) 5 NSWLR 109. There, Glass JA noted:
“… in my view that no fresh cause of action accrued to the beneficiary when he suffered further loss of income during the six year period of limitation. Assuming a continuing duty of care, a fresh cause of action will only arise if a fresh breach causes loss going beyond the loss resulting from the barred cause of action.”
Although the High Court overturned the New South Wales Supreme Court of Appeal decision, in Hawkins v Clayton (1988) 164 CLR 539, it did not disrupt the findings on this point: see Clutha v Millar (No 3) [2002] NSWSC 642.[88] Such that, in Clutha v Millar, Austin J opined at [20]:
“The difference between a cause of action in contract accruing upon breach, and a cause of action in tort accruing when the breach causes damage to be suffered, has an important impact on the analysis of breach of a continuing duty. Where the continuing duty is contractual, it may be plausible to say that the continuing failure to discharge it gives rise to a series of causes of action, while the failure continues. This is because contractual causes of action accrue upon breach, and it seems artificial and unacceptable to say, in the case of a continuing failure to discharge a continuing contractual duty, that the only breach that has occurred is the failure to perform the duty when it first arose. In the tort of negligence, where damages are the gist of the action, even if it were correct to say that breaches repeatedly occur so long as the failure to discharge the duty of care continues, it would not follow that a series of separate causes of action would accrue. One must look to see when measurable damage is first suffered. It is that measurable damage that completes a cause of action in negligence, and the cause of action arises once it has occurred, even though further damage continues to accrue.”
[88] “Clutha v Millar”.
In my opinion, this approach is particularly appropriate in a case, such as the present, where the multiplicity of the breaches was essential in establishing that a breach occurred at all. It is also consistent with the notion that such damages are “entirely compensatory” in nature: Qantas Airways Ltd v Gama [2008] FCAFC 69 at [94]. The compensatory nature of damages is also reason to not award damages separately for the breaches of s.24 pursuant to ss.6(1) and 6(2), and s.32 of the DDA. To do so would constitute “double dipping” where the factual matrix leading to those breaches was the same.
No claim has been made here for exemplary or punitive damages, and there does not exist, within this legislation, the ability to award damages that might serve to discourage others from conduct of this nature, such as is found in s.115(4) of the Copyright Act 1968 (Cth). It is perhaps for this reason that damage awards for breach of any of the Commonwealth anti-discrimination Acts have generally been conservative. In Evans v National Crime Authority [2003] FMCA 375, I awarded damages of $25,000.00 in respect of non-economic loss arising out of discrimination on the grounds of family responsibilities. On appeal, Commonwealth v Evans (2004) 81 ALD 402 Branson J gave some detailed consideration to this question at [81 - 84]:
“[81]The Federal Magistrate referred to the award of compensation for non-economic loss made in Rugema v J Gadsten Pty Ltd (t/as Southcorp Packaging) (1997) EOC 92-887. Rugema v J Gadsten Pty Ltd involved an individual who was found to have suffered a severe major depressive disorder and whose “current loss of mental powers” was assessed to be in the order of 50–60% at the time of the hearing. I accept the submission of the appellant that Mr Rugema’s loss and damage was considerably more severe than Ms Evans.
[82]In Shields v James [2000] FMCA 2 at [79] the Federal Magistrate observed that the authorities:
“… indicate a range for damages for hurt and humiliation of between $7,500 and $20,000. In the higher range of those Judgments the activities complained of constituted either more physical action or more substantial … physical sequelae … [Citations omitted]
It seems to me that the range so identified may be higher than the authorities fairly support: see the table published in Human Rights and Equal Opportunity Commission, Federal Discrimination Law 2004, p 158. However, it is not necessary for me to express a concluded view on this question.”
[83]In Leslie v Graham (2002) EOC 93-196 I awarded damages of $16,000 for non-economic loss. In Elliott v Nanda (2001) 111 FCR 240 Moore J awarded $15,000 general damages. Each of these was a sexual harassment case and the emotional damage suffered by the applicant was, it would seem, greater than that suffered by Ms Evans.
[84]In my view the appropriate award for non-economic loss in the circumstances of this case is $12,000.”
Her Honour’s views have not been seriously challenged in the interim. In a case where there is a paucity of medical evidence I must take them into account. I have accepted that Mr Innes suffered distress and anxiety as a result of the actions of RailCorp, which I have found to be discriminatory, and I have found that these actions were multiple and constituted a significant percentage of the journeys he took in the relevant period. Taking these matters into account, I believe an appropriate award of damages in his favour is the sum of $10,000.00 for the breaches of ss 24 and 32 of the DDA to which should be added interest at the appropriate rate from the date of issue of the application which I have calculated in the sum of $881.99.
Mr Innes sought a fixed sum in respect of each complaint, and also sought an order from the court that the damages be paid to Vision Australia. Damages are payment to a person as compensation for loss suffered. It is for him or her to dispose of those damages as he or she sees fit, it is not for the court to make orders at his or her request or whim.
Costs
The respondent seeks to be heard on the question of costs and says:
“Regardless of the outcome, the Respondent seeks to be heard on:
(a) costs thrown away by the Applicant withdrawing one of his experts, Ms Wolff, late on 10 August 2012, in circumstances where the Respondent flagged its objections to the affidavit on 2 July 2012. Railcorp invited the Applicant to withdraw and indicated that if he did it would need to incur costs of preparing evidence in response. On 9 July 2012, the Applicant refused and pressed the affidavit. For this reason, the Respondent incurred costs of engaging Dr Wendy Roberts to prepare evidence in reply – addressing the methodology adopted by Ms Woolf [sic] and an assessment of the Applicant. None of the costs would have been incurred if the Applicant had withdrawn the Woolf [sic] affidavit prior to 9 July 2012;
(b) the costs thrown away in relation to the 6 affidavits rejected;
(c) the costs thrown away in relation to the rejection of Mr Clemens’ evidence.”
Generally costs in these matters follow the event. There has grown up, in recent years, a distressing move by unsuccessful parties to what I have previously described as the “filleting” of costs orders. Clearly there are occasions when a successful party should not be entitled to 100 percent of his costs, and this has been recognised by the courts: Cummings v Lewis (Wilcox J, 29 May 1992, unreported),[89] Cummings v Rundle (1993) 41 FCR 559, Joye v Beach Petroleum NL and Another (1996) 137 ALR 506, Collector of Customs v Reg Russell and Sons Pty Ltd (Nicholson J, 3 August 1995, unreported), [1995] FCA 562.
[89] “Cummings”.
In Cummings, Wilcox J, whose judgment on this point was upheld on appeal, noted the general rule and the discretionary nature of an award for costs before opining:
“…it is clear that the court may take into account the conduct of the litigation by the successful party. Where a successful party has put the opposing party to significant expense in connection with an issue on which that party failed, it may be reasonable to take that matter into account by awarding something less than full party-party costs. That was the course taken in Forster v Farquhar and in Hughes v Western Australian Cricket Association, both cases of a successful plaintiff. But I see no difference in principle between the case of a successful plaintiff and that of a successful defendant. The justification for limiting the costs order is the unfairness, in the circumstances of the particular case, of requiring a party to bear the costs of an issue unjustifiably raised or contested by the opponent notwithstanding that the opponent was successful overall. If the court's readiness to take into account the failure of a party on a particular issue encourages litigants to consider more carefully what issues they will litigate, this will have the benefit of reducing the length of hearings and, therefore, both the costs burdens on parties and demands on court resources.”
And continued:
“In exercising a discretion on costs it may be a mistake to dissect too much. But I do not think that it goes too far to break up a particular cause of action into its major elements, especially where one element involved a considerable amount of court time. See the comment by Toohey J in Hughes v Western Australian Cricket Association at 48,136 that, in this context, "'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law”.”
I am of the view that where costs are ordered to be taxed or assessed in accordance with some statutory scheme, an order that I believe is appropriate to this case, judicial time should not be taken up with arguments that are best made before a taxing officer or assessor. I would indicate that in my view there is merit in the respondent’s arguments concerning the affidavit of Ms Wolff. And I would order that the applicant pay the respondent’s costs of retaining Dr Roberts. But it would be moving down a very dangerous path to start making orders for costs in respect of affidavits (and not doubt later, parts of affidavits) rejected. The order I would propose to make in respect of costs is that the respondent pay the applicant’s costs to be taxed or assessed if not agreed and payable at 80 percent of the Federal Court rate. However, I am sensible of the possibility that there may be good reasons why a different costs order may be appropriate because, for instance, offers have been made and rejected. In these circumstances I would propose to stay my costs order for 10 days and give the parties that time to provide written submissions as to why they should be heard further. This will not require a tract of biblical proportions containing schedules of lines of affidavits rejected or evidence not utilised, just reasons why other rules should apply.
Conclusion
It would appear startlingly obvious to the lay observer that passengers travelling upon trains need to know where to get off. It would be equally obvious that this information should be provided in a way that was effective for all passengers. If it was not, the lay observer would conclude that those passengers for whom the information was not provided effectively were ‘discriminated’ against as they understand the way the word is generally used, “to make a distinction, as in favour of or against a person or thing”.[90] The lay observer would rightly feel that if the discrimination was to be the subject of legal process there should be protection against an unavoidable occurrence but otherwise might have little patience for complex casuistic argument over definition or the manner in which the discrimination was described. The observer would have little sympathy for suggestions that the persons or class not provided with the information by the railway operator could seek it out elsewhere. Yet this is what this case has been about. A lengthy series of arguments over the meaning of words and interpretation of a statute that proudly proclaims its ‘beneficial nature’. This is not to blame those whose duty it was to argue for their clients. Lawyers work with laws and if those laws are written obscurely or ineffectively the shortcomings should be exposed. If my reasoning in this decision is found to be wrong, as well it might, the lay observer may be startled. It is hoped, that being so, she will take the matter up with those who write such laws and seek a less complex way of determining when actionable discrimination occurs, one that is less expensive, less profligate of legal and judicial time, less stressful for the parties.
[90] Macquarie Dictionary (3rd Edition).
I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 1 February 2013
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