Morley v Torrens Transit Services (North) Pty Ltd - [2008] SAEOT 11

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
MORLEY v TORRENS TRANSIT SERVICES (NORTH) PTY LTD
[2008] SAEOT 11
Judgment of Her Honour Judge Cole, Member Mr H Yapp and Member Ms A Bachmann
28 August 2008
DISCRIMINATION LAW
Alleged discrimination by the respondent on the ground of impairment - two incidents alleged - whether complainant was discriminated against by being refused entry on to bus due to a pole protuding up above the canopy of the wheelchair - whether complainant was discriminated against by being asked to face his wheelchair to the rear of the bus - both complaints dismissed.
Equal Opportunity Act 1984; Disability Discrimination Act 1992 (C'wlth), referred to.

MORLEY v TORRENS TRANSIT SERVICES (NORTH) PTY LTD
[2008] SAEOT 11
Introduction

Mr Morley made two complaints to the Commissioner of Equal Opportunity (“the Commissioner”) in relation to the conduct of bus drivers employed by the Torrens Transit Services (North) Pty Ltd (“Torrens Transit”). The first complaint related to two incidents, one of which allegedly occurred on 10 August 2006 and the other on 18 August 2006. The second complaint related to an incident which allegedly occurred on 14 November 2007. Mr Morley alleges that all three incidents involved discrimination against him contrary to various provisions of the Equal Opportunity Act 1984.
Mr Morley suffers from disabilities resulting from a motor vehicle accident in which he was injured in 1972. Mr Morley gave evidence that he is hemiplegic, a semi-quadriplegic and suffers from cerebral ataxia. He has 20% use of his right side and 70% use of his left side. Mr Morley uses a motorised wheelchair to transport him when he is outside of his house. The wheelchair Mr Morley has used since about early 2005 is an Invercare Storm Mark V. It has been modified for him in that the footrest has been altered, the seat has been narrowed and a canopy has been installed.
The Commissioner attempted to conciliate the complaints. That attempt was unsuccessful, so the Commissioner referred both complaints to this Tribunal pursuant to s 95(8) of the Act.
At the hearing of the matter before us, Mr Morley and Mr Rose (a mechanical engineer) gave evidence in Mr Morley’s case. Mr Lamont, the General Manager of Torrens Transit, Ms Goodchild, a bus operator, and Mr Hudson, a bus operator, gave evidence in the respondent’s case.
10^thand 18^th August
Mr Morley signed a complaint form dated 18 August 2006. The summary of the complaint on that form read:
Wanted to get on bus. Driver refused because of non-standard canopy on wheelchair, saying OcHealth [sic] & Safety problem. Yet he’s been on buses with canopy before with no complaint. Happened last week Aug 10, & today Aug 18. Felt embarrassed, as there was people at bustop [sic]. Bus stop was Bee Line in front of railway station, city. Complained to bus company, but not a response yet.
Mr Morley said, in evidence, that he did not write that summary, but that someone wrote it for him, with him telling them what to write.
In his evidence before us, Mr Morley was frank about the memory problems he experiences. In response to a question about previous incidents on buses, he said (transcript, p.15):-
… I’m not too sure which one it was because I’m also, in my brain injury, I have also got very bad memory now. Sometimes I can remember things and if I’m prompted or, say, someone suggests something, “Yeah, I remember that now” but that’s how things happen with me and my memory.
When Mr Morley was questioned in examination in chief concerning the complaint about incidents in August of 2006, this exchange took place (transcript, p.16):
Q.Was that the date you made a complaint to the equal opportunity commission.
A.I think it was. I’m not too sure because of my memory.
Q.And the complaint referred to two events that occurred on 10 August and 18 August; can you tell the tribunal from your own memory what happened on those days.
A.Well, the first one, if it’s the one I’m thinking of, is I wanted to catch the Circle Line bus to Tandanya, that goes to the Salvation Army, and they told – I think it was new, I think it was, the driver refused me to get on the bus. I asked for the driver to put the ramp down and he said “No” because of health and safety reasons and not complying with their law, their rules.
Q.And so you weren’t even allowed to get on the bus.
A.No.
Q.Whereabouts was the bus, where were you trying to catch it from.
A.The train station – or was it – the bus, the Bee line, or Circle line.
Q.So there were two occasions, you think one was the Bee Line and one was the Circle Line.
A.I think so; I’m not too sure now.
In cross examination, Mr Manuel, counsel for the respondent, asked Mr Morley if he had had a flag on his wheelchair on 10 August 2006. Mr Morley was vague as to the time frame, but said that he had, at some point, had an orange safety flag protruding about two thirds of a metre above the top of the canopy of his wheelchair. The orange safety flag was attached to a fibreglass pole. A metal fitting was bolted onto the wheelchair at the rear, and the pole slid into it. Mr Morley also agreed that he was a Port Power fan. The following exchange took place in cross-examination:
Q.… The bus driver will give evidence that she refused your entry to the bus because of her concern as to the safety of other passengers in respect of your flag.
A.She didn’t say the flag to me.
Q.Did she refer you at any level to safety issues.
A.She said because of health and safety concerns, not so – I said “What the hell’s going on?” and that’s when she said “Sir, I can’t let you on.”
Q.Sorry, I missed that.
A.That’s when she said “Sir, I can’t let you on.”
Q.Is it your evidence, then, that it was never specified as to the safety reason why you were being refused; is that your evidence.
A.No.
Q.You were never told why.
A.I wasn’t told. I just took it for granted that it was just the canopy, but –
HER HONOUR
Q.So she said “For health and safety reasons I can’t let you on”.
A.That’s right.
Q.But she didn’t say what the health and safety reasons were.
A.No.
Q.And you assumed it was the canopy.
A.Yeah, but see, as you say things I remember about things and I remembered that one very clearly.
Mr Morley did not give any oral evidence at the hearing of an incident on 18 August 2006.
The complainant’s copy documents, which were tendered by consent, included Torrens Transit incident reports. On the basis of Mr Lamont’s evidence, we understand these to be records of telephoned complaints to the Public Transport Division, a State Government Agency. A call was logged on 21 August 2006. The report says:

Call No:50762
Problem Desc [sic]: Mr Morley states he was waiting at the railway station stop on the 11^th of August to the [sic] catch the clockwise 99C at 1035 in his wheelchair which has a canopy. Mr Morley states the driver of the 99C refused to let him on the bus because of the canopy on his wheelchair. Mr Morley states this has happened before and it seems to be the older drivers who refuse him access, stating O H & S as the reason. Mr Morley states he does not want a softly softly approach to this matter which he believes is discrimination and if he isn’t satisfied with the way it is handled he will be taking the matter to the Discrimination Board.

There is a section on the form entitled “Investigation Outcome”, in which there is written:
No driver interview required as this is an O H & Safety issue and the canopy is a danger to other passengers.
We are unable to tell from the form who made this entry, or who made the decision it records, and there was no evidence to assist us in this regard.
There is a further document which seems to be called “PTD Customer Feedback Form”. It says “Date/Time logged: 18/08/2006”. It records the following:
Mr Morley stated on 18^th August 2006 he wanted to board the 99B service departing the Adelaide Railway Station at 0937.
Mr Morley stated he hailed the bus and the driver drove past him. The driver then stopped the bus and came over to speak to him. The driver said he was not allowed to pick Mr Morley up because of the canopy on his electric wheelchair.
Mr Morley stated he told he [sic] driver that was against the law. Mr Morley stated there were people at the stop and he felt embarrassed and “wonderment”.
Mr Morley stated everyone was staring at him when the driver refused to let him board. Mr Morley stated this happened last week and he said at the time if it happened again he would go to the discrimination board. Mr Morley stated the drivers have caused the “s**t [sic] to hit the fan”.
Under the heading “Actions taken” there is a handwritten entry which says:
Mr Morley has been spoken to in regards to his wheelchair + canopy many times.
Once again, on the evidence, we are unable to say who made that entry or the decision it records. The report set out above appears in a further document, the first part of which appears to be an email header from Bianca Archibald to Charmaine Perry, who, Mr Lamont said in evidence, is the Operations Manager, Mile End, for Torrens Transit. A handwritten note appears under it, which says:
Spoke to Robyn 4/10/06 – Robyn said that she does not let Mr Morley on because he does not put the wheelchair in the correct spot. She is always polite to him but does refuse him entry and does tell him it is because of his safety and others [sic].
Ms Robyn Goodchild gave evidence in the respondent’s case. In relation to the note set out above, she said that she believed that it came out of a conversation that she had with Charmaine Perry. Ms Goodchild’s evidence was to the effect that at the time of the conversation, she was mistaken as to which passenger was Mr Morley. In her conversation with Ms Perry, Ms Goodchild was actually referring to a different incident with a different male passenger in a wheelchair who refused to place his wheelchair in the area allocated for wheelchairs, and blocked the rear door. Ms Goodchild made the point that she frequently has to give passengers safety directions, and she does not get the names of the passengers she speaks to. The respondent’s Answer, in relation to the complaint concerning 10 August 2006 and 18 August 2006, is based substantially upon the premise that Mr Morley was refused entry to the bus on 10 August 2006 and 18 August 1006 because he had a history of placing his wheelchair in the wrong place on the bus. There was no evidence to that effect.
Ms Goodchild gave evidence that she has been a bus operator for eight years. She has driven City Free for four years. She estimated that she would pick up about 10 wheelchair users per week on the City Free run. Ms Goodchild recalled an incident in which she declined to allow a man in a wheelchair to board her bus at the railway station. She said:
A.He had at the time a large cumbersome unit with lots of stickers on the side, obviously for his safety, a projecting canopy and all these things projecting upwards, but my concern was the projection from a pole that was projecting beyond and behind him and beyond his back wheels, which had an attachment of – his symbol of his football team hanging from it.
Q.What was your concern about that.
A.Just that it projected from behind – it was a pole and I was concerned for people’s bodies, body parts.
Q.Did you notice what the pole was made out of.
A. It was a metal pole.
Q.How wide was this pole.
A.It was like an inch, a metal inch pole that you might use for plumbing or something similar, I don’t know.
Q.How far back did it protrude.
A.It projected beyond his back wheels.
HER HONOUR
Q.It was rigid.
A.It was a solid metal pole.
Q.It was not bendy.
A.Not protractible, not bendable.
Ms Goodchild said that she believed that she had carried Mr Morley several times, without incident. She had never had cause to complain about the canopy of his wheelchair before. She said the flag on the pole was a Port Power flag.
Ms Goodchild was asked whether she was the driver in an incident with Mr Morley on 18 August 2006 when a bus drove past Mr Morley, ignoring him. She said that she was not. Mr Manuel, counsel for the respondent, said in his opening that the driver in the alleged incident of 18 August 2006 had not been identified by Torrens Transit.
It is not possible, on the evidence, to be absolutely certain what occurred on 10 August 2006, 11 August 2006 or 18 August 2006 with respect to Mr Morley. Mr Morley’s evidence is inconsistent as to whether the bus operator for the first incident was male or female. In his telephoned complaint of the first incident, Mr Morley apparently referred to “older drivers”. Ms Goodchild certainly could not be described as an “older driver”. As recounted above, Mr Morley is sometimes highly suggestible and apparently “remembers” incidents as they are described to him. We are unable to assess whether Mr Morley has an accurate independent memory of what caused him to telephone complaints in to the Public Transport Division in August 2006. Mr Morley did say in evidence, however, that the bus driver who refused him admission to the bus in the first incident said that he/she did so on the basis of “health and safety reasons”. He agreed that the driver did not specify to him precisely what those health and safety reasons were, and that he “took it for granted” that it was his canopy.
Unfortunately, Ms Goodchild and Mr Morley were never in the courtroom at the same time. Ms Goodchild was not able to say with certainty that the person with whom she had the incident in August of 2006 was the complainant in this matter. Her description of the man she spoke to is broadly consistent with Mr Morley’s appearance. She identified the wheelchair, which is unusually large, from photographs. We gained the impression from Mr Morley’s evidence that there are not many Invercare Storm Mark V wheelchairs in Adelaide. Ms Goodchild impressed us as a sincere and truthful witness. We accept her account of an incident in about August 2006 at the Adelaide Railway Station Bus Stop. We accept that she refused to carry on her bus a man in a wheelchair which had a canopy, and that her reason for that refusal was a Port Power flag on a rigid metal pole which protruded beyond the back wheels of the wheelchair, higher than the canopy. On the balance of probabilities, we find that the man in that incident was Mr Morley.
As to 18 August 2006, the complainant has not met the standard of proof in relation to that alleged incident. We do not have sufficient evidence of the incident to make any findings of fact.
14 November 2007
Mr Morley signed a complaint form dated 15 November 2007. This complaint was prepared in the same way as the earlier complaint; by Mr Morley telling someone what he wished to say, and that person filling in the form for him. The signature, however, is Mr Morley’s own. The summary of the complaint on the form reads:
On 14^th November, at around 11.30am in front of Tandanya I caught the 134 bus. (Bus number 1501). There was an elderly lady in the disabled seat on one side and an Asian guy with a big bag on the other. I boarded the bus but could not get into the wheelchair area as it was taken so I asked the elderly lady politely to move. The elderly lady had apparently just had a fall so her friend told me it might take a while for her to move. Meanwhile while I was positioned in the walkway the bus driver continued to drive to the next stop. After the bus stopped I was able to position myself in the wheelchair area and turn around. The bus driver came up to me and told me to turn around. I said no, the way you are driving is dangerous. I don’t want my neck broken again. The bus driver said, you have to get off. The bus driver stopped people getting on the bus to get me off. To not inconvenience everyone else I got off. Because I had to get off the bus and drive the wheelchair, my wheelchair almost ran out of power.
In evidence before us, Mr Morley said, in examination in chief:
A.I caught the bus outside Tandanya, and, as I’ve got on, there was an elderly lady sitting where the wheel chairs go, so I just turned into the space because I knew she was getting off at the next stop because she told me, so we went up there; as she was getting off, she went out the other entrance, I put the seat back up and turned around and the driver come back and he said “You’ve got to face the other way: I said “No, because I’ve got a busted neck, I don’t like facing the rear because the way you guys drive, stopping, jerking all the time, it will cause whiplash”. He said “No, you’ve got to turn around. If you don’t do that, you get off” so he drove off to the other stop. I wouldn’t move, I turned around and wouldn’t get off. There was other people wanting to get on. He come back and said to me ”You’ve got to get off because you won’t comply with the rules.” I said “Well, I don’t want to leave these people here” so I get off; as I got off I went straight up to her office and complained, and she told me to go to make my complaint to the equal opportunity.
Mr Hudson gave evidence in the respondent’s case. He said that he had been a bus driver for 12 years. In November 2007, he was driving route 134, which, he said, goes from the city to West Lakes via Henley Beach Road and Tapleys Hill Road. It stops at the Tandanya stop if someone hails it. Mr Hudson gave his account of an incident:
A.… I was coming off The Parade at Norwood doing the 134, I approached – the Tandanya stop is a hail or alight bus, you know, when people ring the bell and they want to alight. Mr Morley – this particular person hailed me with a wheelchair and that’s fine, so I pulled into the bus stop, loaded him, put the ramp down and then he started to position himself into the wheelchair area but facing the front of the bus and I explained to him that “You do need to follow procedure and face the rear of the bus”. Then he started getting quite abusive and saying no, he doesn’t want to face the rear of the bus. So he continued getting quite abusive, so I thought to myself “No, I won’t continue the conversation” so he then positioned himself and faced the bus, so I just left him and just continued on with my driving because I didn’t want to continue with the abusive verbal language coming from his mouth.
Q.When you say he was verbally abusive, what was his tone.
A.It was quite loud.
Q.Do you recall what he actually said to you.
A.No, no.
In cross-examination, Mr Hudson continued his account of the incident with the person he assumed to be Mr Morley. Mr Hudson said that he returned to his seat, intending to continue driving, when Mr Morley yelled that he wanted to get off. In response, Mr Hudson unpacked the ramp at the front door (which he had just packed up) and waited for Mr Morley to alight. Mr Hudson said that Mr Morley got on and got off the bus at Tandanya, on this occasion. Mr Hudson had the following exchange with Mr Lazarevich in cross examination:
Q.You had no intention of making him get off the bus.
A.No. Oh, no, no, no, no. That’s a no-no. No.
…
Q.Mr Morley said you used the words “You have to get off the bus”, do you disagree with that.
A.I disagree with that.

Mr Hudson gave evidence that he was involved in a second incident which may have been in November 2007 or in early December 2007. On that occasion, Mr Hudson was again driving the 134 route approaching the Tandanya stop.
A...I was – the same procedure again – coming off the Parade at Norwood but this time I was fully loaded – full standing load.
…
Q.So you have got off the bus –
A.Yeah.
Q. - you had a polite conversation with Mr Morley –
A.Yes.
Q.- to say “Look, sorry, we’re full you can’t get on”.
A.Yes, yes.
Q.What happens next.
A.Then what happened next was there was – I tried to explain to him, I said “There should be a bus coming along in the next five minutes” because I was already nine minutes down and normally The Parade services coming into the city are very, very frequent but, anyway, there was a passenger – a lady passenger in the middle of the bus standing up and she got everyone to move down past – at the back of the bus. There was a slight little bit of room but not much, probably one person where they could move down, but I also had an Asian couple with a very, very large pram. They were very, very polite and they decided that they would get off the bus to allow Mr Morley to board the bus and that wasn’t their stop and I thanked them very, very much, so then -
…
A.… I was able to board Mr Morley.
…
Q.So is your evidence that Mr Morley got onto the bus -
A.Yes.
Q.- you went back to driving -
A.Yes.
Q-without seeing what the orientation of his wheelchair -
A.Yes, because I didn’t want any more confrontation with Mr Morley at all because I knew from the last experience that I had that it’s no - wasn’t going to carry on.
…
Q.What did you do then.
…
A.I just continued down Henley Beach Road from the city.
…
QDo you recall what stop he got off.
A.It’s at Torrensville, at the shopping centre – I think that’s stop 5.
Mr Morley was not in the courtroom when Mr Hudson gave evidence. Mr Hudson said that he had identified the wheelchair from photographs he had been shown. He had not had the opportunity to identify the complainant as the person he assumed to be Mr Morley. Mr Hudson also said that on the two occasions he had given evidence, there was no canopy on the wheelchair in question. He was quite certain of this. Torrensville stop 5 is near to Mr Morley’s home. Mr Hudson agreed that it was possible that the person involved in both of the incidents he related was not Mr Morley.
As with the incidents in August 2006, it is difficult for us, on the state of the evidence, to be certain what occurred on 14 November 2007. On the one hand, Mr Hudson identified Mr Morley’s wheelchair which, as we have said above, is unusual, from photographs. Mr Hudson was driving a bus on the route in question at the time in question. It is curious, though, that he remembers a wheelchair without a canopy. With some hesitation, on the balance of probabilities, we find that the incident on 14 November 2007 occurred between Mr Morley and Mr Hudson. On Mr Hudson’s version of events, however, it is clear that Mr Morley was not refused permission to remain on the bus, but chose to get off after his conversation with Mr Hudson about the requirement that he face the rear. We prefer Mr Hudson’s evidence over Mr Morley’s in relation to the whole of the incident. The idea that he might have told a wheelchair user to get off his bus clearly horrified Mr Hudson. It seems to us that Mr Morley chose to get off the bus because he was angered that he had been given a direction to face the rear of the bus. Mr Morley clearly feels aggrieved by some of his interactions with bus drivers over many years. He is quick to anger. It may be that, in his memory, a number of incidents have merged.
Expert Evidence
Mr Rose was the only expert witness to give evidence in this matter. Mr Rose has a BSc Mechanical Engineering (Hons) and an Msc Biomedical Engineering Science. He presently holds the position of Team Leader, Mobility and Seating, Novitatech, Novita Childrens’ Services Adelaide. He leads a clinical and technical team whose task it is to assess and prescribe disability equipment, including wheelchairs.
Mr Rose assessed Mr Morley’s wheelchair. In Mr Rose’s opinion, the wheelchair, with its canopy, carrying Mr Morley, was within the carrying capacity for a ramp onto a bus. The wheelchair was suitable for travel on a bus. The effect of the canopy on the stability of the wheelchair was minimal. Prior to 2005, Mr Morley had a different type of wheelchair. Mr Morley tipped over in that wheelchair whilst in a bus which was turning a corner on two occasions. We gained the impression from Mr Rose’s evidence that an incident of that nature was unlikely in Mr Morley’s current wheelchair.
Mr Rose provided a report. In the summary to the report, he said:
SUMMARY
…
2. Safety/stability of the wheelchair in the forward vs. rearward facing position (while still in allocated space)
The stability of the wheelchair is little affected by choice of forward or rearward facing position within the bus.
In a frontal crash, such as is tested for in standards testing, Mr Morley’s level of risk will be reduced in a rearward facing position compared to a forward facing position, as the risk of falling from the chair will be significantly reduced. This presumes that a suitable headrest is fitted to the wheelchair.
In a sideways impact the risk is little affected by choice of forward or rearward facing, and Mr Morley’s argument, (that his ability to see accidents about to happen, to hold on and to brace with a leg, is improved in the forward facing position), has some validity.
Minor injuries in normal vehicle motion may be reduced in frequency and severity in the forward facing position as the risk of falling from the chair may be reduced. Again, Mr Morley’s argument that forward facing is preferable has some validity. However, it appears that the major risk is of injury in an accident rather than in normal motion. Risks of injury in the forward facing position will be reduced by the use of a suitable harness fitted to the wheelchair. As the same can be said for passengers seated in standard bus seats, it is debateable how vigorously this should be pursued.
The powered wheelchair used by Mr Morley appears to be a good choice for transport, having considerable weight, six points of contact with the ground, independent suspension and effective brakes. It will be very much less likely to move within the bus in normal motion, and will certainly compare very well in this regard with typical manual wheelchairs.
In evidence, Mr Rose described Mr Morley’s wheelchair as “very stable, forwards and backwards”. He also said “Sideways stability is good due to its weight and it is reasonably wide.”
In evidence, the following exchange took place between Mr Lazarevich and Mr Rose (transcript p.57):
Q.If there had been a flag attached to the wheelchair, either a safety flag, an orange safety flag, or perhaps a flag with a logo of a football team on it, would that have an impact on the safety of the chair.
A.Unless it was sticking out and a hazard to other passengers, no, not a safety issue for Mr Morley in terms of stability. In terms of visibility in driving down the road it might be useful.
We accept all of Mr Rose’s evidence.
Rear Facing
The only evidence of the source and rationale for requiring people in wheelchairs to face the rear of a bus came from Mr Lamont.
Mr Lamont gave evidence that the State Government supplies buses for the use of Torrens Transit pursuant to the contract between them. Torrens Transit never at any stage becomes the owner of the buses. The chassis of each new bus is imported from Germany by the State Government. It is then fitted out by The Australian Bus Manufacturing Company (“ABM”) (which Mr Lamont referred to as the Adelaide Bus Manufacturer), at Royal Park, South Australia. Subsequently, it is provided to Torrens Transit. By then, it already displays a sticker which says “FOR SAFETY WHEELCHAIRS MUST FACE THE REAR”. Two diagrams which had been provided to Mr Lamont by ABM were tendered. One was dated 2002, the other 1998. They each showed the internal configuration of a bus in diagrammatic form. They showed different buses; the 2002 diagram was a MAN 18.280, and the 1998 diagram was the “Citi bus”, which Mr Lamont said was the kind of bus used for the city free routes. Both buses had two wheelchair spaces, one on each side of the bus, with a handrail on the side of the bus next to the wheelchair space. All of the 41 fixed seats in the MAN 18.280 appeared to face forward. Each of the wheelchair spaces had a folding seat which faced the rear, and another folding seat which faced the opposite side. The diagram of the MAN 18.280 had a figure in a wheelchair facing the rear of the bus positioned in each of the wheelchair spaces. The Citibus had eight fixed seats and two fold down seats facing the rear, three fixed seats and two fold down seats facing the side of the bus, and twenty four seats facing the front.
A copy of the Drivers Manual provided by Torrens Transit to its drivers was tendered in evidence. This is apparently an internal document, operating as a series of directions from Torrens Transit to its drivers. It has no statutory force. It provides, on p.806:
Prams and wheelchairs must face towards the rear of the vehicle for safety reasons.
Mr Lamont gave evidence that a notice was issued to Torrens Transit drivers at the direction of the managers of Torrens Transit in October 2007. The notice was in the following terms:
NOTICE TO DRIVERS
CORRECT POSITIONING OF WHEELCHAIRS & PRAMS ON BUSES
All drivers are reminded of the following safety requirements in relation to the carriage of wheelchairs, gophers, prams and pushers on accessible buses:
Passengers in wheelchairs/gophers, or parents/carers who allow their children to remain in prams and pushers (on accessible buses only) MUST BE ADVISED OF THE FOLLOWING on boarding the bus:
·Wheelchairs/gophers and prams/pushers MUST FACE TOWARDS THE REAR OF THE BUS.
·The BRAKES on the wheelchair/gopher or pram/pusher MUST BE CORRECTLY APPLIED.
Further information on these topics is contained in the Torrens Transit Driver’s Manual – please refer to Pages 213, 806, 807 and 808 to ensure you are familiar with the relevant procedures.
Thank You For Your Co-operation
Mr Lamont was asked, in cross-examination by Mr Lazarevich, about a letter Mr Lamont wrote in relation to Mr Morley’s complaint which referred to the Disability Standards for Accessible Public Transport Guidelines 2004 (no.3) (“the Guidelines”). Mr Lamont had seemed to be under the impression that those Guidelines compelled Torrens Transit to require wheelchair users to face backwards in buses, but Mr Lamont agreed in cross-examination that the Guidelines said only the following about the orientation of wheelchairs:
1.19 Orientation and motion
(1)Operators may determine the orientation of passengers in conveyances but should note that many people have a preference for facing forwards.
(2)Public transport necessarily involves motion such as acceleration, deceleration, cornering and pitching. The Disability Standards assume that passengers and their mobility aids are capable of tolerating such motion.
At the end of Mr Lamont’s evidence, it seems to us that the effect of what he said is that Torrens Transit imposes a requirement that wheelchair users face the rear in buses simply because the sticker provided on each bus when it is delivered by ABM to Torrens Transit says that they should and the diagrams of the bus layouts provided to him by ABM show the wheelchair facing the rear. Mr Lamont has assumed from that sticker that it is safer for wheelchair users to face the rear and has rationalised, in his own mind, why that might be so. Torrens Transit did not seek to place before this Tribunal any evidence to show that this requirement has a sound basis, or, indeed, any basis at all.
Passenger Transport (Regular Passenger Service; Conduct of Passengers) Regulations 1994
There is no provision in these regulations which requires wheelchair users to face the rear of a bus.
Disability Discrimination Act (C’wlth)
The Disability Discrimination Act 1992 provides, in s 31:
S 31(1)The Minister may formulate standards, to be known as disability standards, in relation to:
…
(d)the provision of public transportation services and facilities by:
…
(ii) a State; and
…
(vii) any other person;
to a person with a disability…
The Disability Standards for Accessible Public Transport 2002 have been formulated under the Disability Discrimination Act 1992. Relevantly, those standards provide, specifically in relation to buses:
3.2     Access for passengers in wheelchairs etc
(1)Passengers in wheelchairs or mobility aids must be able to enter and exit a conveyance and position their aids in the allocated space.
(2)If this is not practicable, operators must provide equivalent access by direct assistance
9.4     Number of allocated spaces to be provided – buses
(1)At least 2 allocated spaces must be provided in each bus with more than 32 fixed seats.
(2)At least one allocated space must be provided in each bus with less than 33 fixed seats.
(3)An allocated space is additional to the fixed seating capacity.
9.11   Movement of mobility aid in allocated space
An allocated space must contain movement of a mobility aid towards the front or sides of a conveyance.
The Standards also require the display of disabled access stickers in buses.
The Guidelines are expressed to be for the purpose of understanding and interpreting the Standards. The provision regarding orientation is set out above.
The Disability Standards and Guidelines do not mandate that wheelchair passengers face the rear in a bus.
Occupational Health and Safety
Mr Manuel argued that, if Mr Morley had been directed to face the rear of the bus, such a requirement was in conformity with occupational health and safety legislation. However, Mr Manuel did not adduce any evidence to support this argument, or to distinguish between the safety requirements for a wheelchair user and an able bodied passenger.
The Equal Opportunity Act 1984
The complainant seeks orders from this Tribunal pursuant to s 96 of the Act. It is a pre-requisite to the making of orders pursuant to s 96 that the Tribunal determine that the respondent has acted in contravention of the Act.
The complainant has alleged that the respondent is in breach of s 66 and s 76 of the Act. Section 66 does not create an offence. Its function in the Act is to describe and define discrimination on the ground of impairment. In order to succeed in these proceedings, the complainant must prove on the balance of probabilities that the respondent has acted in contravention of the Act (see s 96). In the context of this complaint, the complainant must prove a breach of s 76. The Act provides:
66For the purposes of this Act, a person discriminates on the ground of impairment -
(a)if he or she treats another unfavourably because of the other’s impairment, or a past or presumed impairment;
(b)if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and -
(i)the nature of the requirement is such that a substantially higher proportion of persons who do not have such an impairment complies, or is able to comply, with the requirement than of those persons who have such an impairment; and
(ii)the requirement is not reasonable in the circumstances of the case.
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(d)if, in circumstances where it is unreasonable to do so -
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(ii)     he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other’s impairment.
76     (1)    It is unlawful for a person who offers or provides -
(a)goods; or
(b)services to which this Act applies,
(whether for payment or not) to discriminate against another on the ground of impairment –
(c)by refusing or failing to supply the goods or perform the services; or
(d)in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
90    Aiding unlawful acts
Where a person causes, instructs, induces or aids another to act in contravention of this Act, both are jointly and severally liable to any criminal or civil liability arising under this Act in respect of the contravention.
91 (3)In any proceedings brought under this Act against a person in respect of an act alleged to have been committed by an agent or employee acting in the course of the agency or employment, it is a defence to provide that the person exercised all reasonable diligence to ensure that the agent or employee would not act in contravention of this Act.
We take it that the complainant is arguing that the respondent is in breach of s 76(1) of the Act because it has discriminated against Mr Morley, within the meaning of s 66(a), s 66(b) and/or s 66(d)(ii), in the performance of a service, namely a public transport service (see s 5). Further, that the respondent is liable for the actions of its bus drivers pursuant to s 90 and s 91(3) of the Act. The contravention of the Act which is relied upon is a contravention of s 76(1).
We find that Torrens Transit was, at the time of all three incidents, providing a service, namely a public bus service, to which the Act applied. The question, then, is whether Torrens Transit discriminated against Mr Morley on the ground of impairment in the terms or conditions on which, or the manner in which, the bus service was performed.
In relation to the incident on 10 August 2006, we have found that Ms Goodchild refused to carry Mr Morley because of the pole which was protruding up above the canopy of his wheelchair and back beyond the back wheels of his wheelchair. On the balance of probabilities, we have found that the pole was a rigid metal pole with a Port Power flag hanging from it. We accept that Ms Goodchild genuinely and reasonably formed the view that the pole and flag posed a potential risk to other passengers. On that basis, we find that her refusal to carry Mr Morley was not attributable to his disability in the relevant sense. The fact that the pole was connected to the wheelchair was not material to Ms Goodchild’s assessment. It was the position of the pole in relation to other passengers that was the critical element of the situation. We are confident that, had the pole been attached to a pram or pusher, or been carried by an able bodied person, Ms Goodchild would have acted in the same way. We do not consider that Ms Goodchild’s refusal to carry Mr Morley, in the circumstances, was discriminatory.
With respect to the alleged incident of 18 August 2006, we are unable to make findings on the balance of probabilities as to what the reason for the incident was, or even if there was, in fact, an incident.
On the basis of the evidence before us, it seems to us that it would be discriminatory, within the meaning of s 66(a), were Mr Morley to be excluded from a bus because of the presence of the canopy on his wheelchair (assuming there were no projections protruding from the canopy). On the basis of Mr Rose’s evidence, the canopy by itself does not render Mr Morley’s wheelchair unsafe for bus travel. It was Mr Morley’s evidence that he had ridden Torrens Transit buses many times with the canopy on his wheelchair. On the facts as we have found them to be in relation to 10 and 18 August 2006, however, it has not been established that Mr Morley was refused access to the bus service because of the canopy on his wheelchair.

As to the incident of 14 November 2007, we have found that Mr Hudson said to Mr Morley “You do need to follow procedure and face the rear of the bus”. Mr Hudson did not convey to Mr Morley by any means that there would be any consequence if Mr Morley refused to face the rear. When Mr Morley objected to having been told to face the rear, Mr Hudson simply walked back to his driver’s seat. Mr Morley then decided to get off the bus. He could have chosen to stay on the bus.
The question to be answered is whether any part of this incident constitutes a breach of s 76 of the Act. Clearly, on the facts as we have found them, there was no breach of s 76(1)(c) as there was no refusal to perform the service. Neither, in our view, was there a breach of s 76(1)(d), because the words spoken by Mr Hudson to Mr Morley did not amount to the imposition of a condition. On the facts as we have found them, Mr Hudson’s words to Mr Morley amounted to no more than a request. Following that request, Mr Morley voluntarily left the bus. Given that Mr Morley had, on his own evidence, frequently ridden on Torrens Transit buses facing forwards, we consider that his decision was based upon his own frame of mind rather than a perception that Mr Hudson required him to leave the bus. Mr Hudson did not actually refuse to provide the service when his request was not complied with; on the contrary, he was returning to the driver’s seat to resume the journey. The allegation of a breach against s 76 has not, therefore, been made out. Mr Morley’s claim therefore fails.
On the facts as we have found them, there is no need to consider the matter further. However, as the interaction between Mr Morley and Torrens Transit may well be ongoing, and as other wheelchair users may also be affected, we will add some thoughts on the question of whether a requirement by the operator of a public bus service that a person in a wheelchair must face the rear of a bus as a condition of being permitted to ride on that bus would be discriminatory within the meaning of s 66(a). If it is, then the imposition of that condition would contravene s 76. We assume, for the purpose of the discussion, that the condition is not imposed upon able-bodied passengers.
We have set out above the evidence of Mr Lamont regarding the reasons why Torrens Transit instructs its drivers to request people in wheelchairs to face the rear of the bus. We have said that Mr Lamont relies upon a sticker placed in new buses delivered to Torrens Transit which says “FOR SAFETY REASONS WHEELCHAIRS MUST FACE THE REAR”, together with bus layout plans from The Australian Bus Manufacturing Company which show a wheelchair facing the rear. Mr Lamont seemed to be under the impression that there was some regulatory basis for the requirement, but neither he nor his counsel was able to point to it.
It may be that there exists a body of reputable scientific research which has examined data regarding the behaviour of wheelchairs and their users facing in various directions in incidents and accidents of varying kinds, and the injuries sustained by the wheelchair users as a result. As Mr Rose pointed out, a large range of variables would be relevant to such research, including the varying kinds and extent of disabilities which cause people to use wheelchairs. No evidence of such research has been adduced in this case. If it exists, Mr Lamont is presumably unaware of it.
Any imposition on wheelchair-bound passengers which is based upon the inconclusive data before us, without the same imposition on able bodied passengers, is arbitrary and may amount to unfavourable treatment within the meaning of s 66(a) of the Act.
What constitutes unfavourable treatment is a complex question. It requires a comparison of the treatment of wheelchair users with the treatment of passengers who are not impaired. Mr Rose’s evidence was the best evidence before us in this matter regarding the safety aspects of the issue. He pointed out that bus travel is not a situation in which there is a single risk which can be ameliorated by a single requirement. A wheelchair user, like all passengers, is vulnerable to injury in the event that a bus in which he or she is travelling has an accident. If the accident is a head-on collision, then a wheelchair user, like all seated passengers, will reduce the likelihood of being injured if he or she is facing the rear of the bus. In other kinds of accidents, other orientations may be preferable. Circumstances other than accidents are relevant, also. Mr Morley’s evidence was that he is better able to respond safely to the ordinary braking and turning of the bus if he can see what is coming and anticipate the response of the driver by bracing himself.
Mr Morley has a strong subjective preference for facing the front of the bus. He feels safer and more comfortable if he faces the front. All other passengers (other than those in wheelchairs) have a choice, which they may exercise based upon their own preference (assuming the availability of rear facing seats). In the absence of evidence that a wheelchair user is uniquely vulnerable to injury unless he or she faces the rear of the bus and therefore, uniquely, requires direction, it seems to us, on the scant evidence adduced on the issue in this matter, that imposing a requirement that a wheelchair user must face the rear of the bus as a condition of the provision of transportation by bus may well be discriminatory under s 76(1)(d).
Concluding comments
Aspects of the presentation of this case to us were most unsatisfactory. Some of the deficiencies in the evidence were unavoidable, but many were not. Difficulties arose from the pleading by the respondent of a significantly different case from the case presented at trial. Mr Lazarevich complained, with some justification, that Torrens Transit seemed not to take the matter sufficiently seriously. Its investigation of the incidents was clearly deficient. The respondent’s case sought to characterise the issue before us as one of the management of risk, which misconceives the effect of the provisions of the Equal Opportunity Act. The difficulties of considering the individual with special circumstances when conducting a mass transit service was repeatedly referred to in the respondent’s case. We understand those difficulties. It seems to us, however, that consideration of the individual, rather than adherence to a generalised set of rules formulated to suit a conceptualised average user, is precisely what the Act requires.
The complaints are dismissed.