Purvis v New South Wales - [2003] HCA 62

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
ALEXANDER PURVIS on behalf of DANIEL HOGGAN APPELLANT
AND
STATE OF NEW SOUTH WALES (DEPARTMENT
OF EDUCATION AND TRAINING) & ANOR RESPONDENTS
Purvis v New South Wales (Department of Education and Training)
[2003] HCA 62
11 November 2003
S423/2002
ORDER
Appeal dismissed with costs.

On appeal from the Federal Court of Australia
Representation:
S J Gageler SC with K L Eastman for the appellant (instructed by Legal Aid Commission of New South Wales, Coffs Harbour Regional Office)
M G Sexton SC, Solicitor-General for the State of New South Wales with C A Ronalds for the first respondent (instructed by Crown Solicitor for the State of New South Wales)
J Basten QC for the second respondent (instructed by Human Rights and Equal Opportunity Commission)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth of Australia with M A Perry intervening on behalf of the Attorney-General of the Commonwealth of Australia (instructed by Australian Government Solicitor)
G J Williams intervening on behalf of People with Disabilities (NSW) Inc (instructed by New South Wales Disability Discrimination Legal Centre Inc)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Purvis v New South Wales (Department of Education and Training)
Discrimination law – Disability discrimination – Suspension and subsequent exclusion from school of pupil who repeatedly assaulted teachers and other pupils – Where pupil's behaviour a consequence of brain damage – Whether pupil discriminated against on the ground of disability – Meaning of "disability" – Whether obligation to provide reasonable accommodation or make reasonable adjustments for persons with a disability – Whether treatment of pupil was less favourable than treatment that would be given to a person without the disability in "circumstances that are the same or are not materially different" – Whether comparator is a person who does not engage in violent behaviour – Whether pupil received less favourable treatment "because of" his disability – Disability Discrimination Act 1992 (Cth), s 5(1).
Words and phrases – "disability", "circumstances that are the same or are not materially different", "because of".
Disability Discrimination Act 1992 (Cth), ss 3, 4, 5, 10, 12, 22.

GLEESON CJ. The issue in this appeal is whether the suspension, and subsequent exclusion, from a State high school, of a pupil who repeatedly assaulted other pupils and teachers, and whose behaviour was a consequence of brain damage suffered in infancy, contravened the Disability Discrimination Act 1992 (Cth) ("the Act"). The Human Rights and Equal Opportunity Commission ("the Commission") found that there had been a contravention. That decision was set aside by Emmett J in the Federal Court of Australia[1]. The Full Court of the Federal Court dismissed an appeal from Emmett J[2]. The appellant contends that the decision of the Commission was correct, and that the judges of the Federal Court were in error.
[1]New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69.
[2]Purvis v New South Wales (Department of Education and Training) (2002) 117 FCR 237.
The facts, and the relevant legislative provisions, are set out in the reasons for judgment of Gummow, Hayne and Heydon JJ. The chronology appended to the reasons of Callinan J sets out the history of the pupil's conduct, and of attempts by the school authorities to deal with the problems it created. In the end, the principal of the school, referring to the pupil's "very violent behaviour", and to his own responsibility for the health and safety of other pupils and members of the school staff, decided upon exclusion of the pupil. That, it is said, amounted to unlawful discrimination contrary to s 22 of the Act, because the educational authority excluded the pupil on the ground of his disability.
The case was not argued as one of "indirect disability discrimination" of a kind covered by s 6 of the Act. If it had been, then s 6(b) would have created a difficulty for the appellant. Rather, the case was said to fall within s 5, read in the light of the definition of "disability", in s 4, as including:
"(g)a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour".
The definition of "disability" lists a series of physical conditions. The problem in the case arises partly because par (g) begins by reference to physical conditions and then adds a reference to a consequence ("disturbed behaviour") of a condition. It is necessary to relate par (g), with its added reference to resulting behaviour, to the provisions of s 5 as to what amounts to discrimination.
The reference to "disturbed behaviour" in par (g) is plainly apt to cover the conduct of the pupil in this case. In considering the wider issue of the relationship of par (g) and s 5, it is necessary to bear in mind the width of that expression. It could include behaviour that is grossly anti-social, dangerous, and criminal. A person who suffers from a disorder that results in disturbed behaviour does not necessarily lack the mental capacity to be guilty of a crime. In some Australian jurisdictions, for example, homicide may be reduced from murder to manslaughter by reason of diminished responsibility, but it is still a serious crime. A person ordinarily cannot escape a conviction for arson by demonstrating that he or she is pyromaniac. Disturbed behaviour may take many forms, and may involve varying degrees of threat to the safety, or the property, of others. From the point of view of other pupils and staff, the conduct of the pupil in the present case was serious. Counsel for the appellant acknowledged that, in principle, his argument would have to be the same even if the conduct had been life threatening.
Section 12 of the Act, which addresses the sources of Commonwealth power to enact the legislation, refers, in connection with the external affairs power, to particular treaties, and generally to "matters of international concern". Those matters include the rights of disabled people in general, and disabled children in particular. In the context of the present case, they also include the rights of the other children in the school. Article 3 of the Convention on the Rights of the Child requires State Parties to undertake to ensure the child such protection and care as is necessary for his or her well-being. Article 19 obliges State Parties to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical violence. The present case illustrates that rights, recognised by international norms, or by domestic law, may conflict. In construing the Act, there is no warrant for an assumption that, in seeking to protect the rights of disabled pupils, Parliament intended to disregard Australia's obligations to protect the rights of other pupils. Furthermore, a contention that the legislative power of the Commonwealth Parliament extends to obliging State educational authorities to accept, or continue to accommodate, pupils whose conduct is a serious threat to the safety of other pupils, or staff, or school property, would require careful scrutiny.
The Act deals with discrimination in a normative, not a value-free, context. Section 22, with which this case is concerned, proscribes discrimination "against" a person on the ground of the person's disability. In some contexts, discrimination may be regarded, in terms of values, as neutral, or even positive; but not in this context. The Act is concerned with discrimination of a kind that the legislature regards as unjust, and makes unlawful. The question is whether the Act treats certain action taken in respect of conduct that affects, not only the person said to be the victim of the discrimination, but other persons whom the alleged discriminator is obliged by law to protect, as unjust and unlawful discrimination. The first respondent owed a duty of care towards its pupils and its staff[3]. That is part of the legal background to the operation of the provisions of the Act dealing with education. In its application to educational authorities, the Act enters an area of relationships governed by legal obligations designed to protect the young and vulnerable. In the development of common law principle, it is appropriate, and sometimes necessary, for a court to take account of the need for coherence in the law. For example, in Sullivan v Moody[4], the Court asked how a duty of care of the kind there under consideration could be related rationally to the functions, powers and responsibilities of the persons and authorities said to owe that duty. In construing legislation, it may be appropriate to ask a similar question. The obligations which arise from the Act have to be related to the functions, powers and responsibilities of the first respondent. Furthermore, the conduct of the first respondent can only be evaluated fairly in the light of an understanding of those functions, powers and responsibilities. The Act, in its application to educational authorities, and in its prohibition of discrimination against persons on the ground of a disability, requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken. In both respects, it is impossible to ignore the context in which the first respondent, by its officers, was acting. It was charged with the care and protection of all the pupils in the school in question. The first respondent showed concern and sensitivity in its dealings with the pupil. It also recognised its legal responsibilities to the other pupils and to the school staff. If there is a reasonable construction of the Act which avoids a conflict between those responsibilities and the obligations imposed by the Act, then that construction should be preferred. And in the practical application of the Act in an evaluation of the conduct of the first respondent, those responsibilities should be kept in mind.
[3]New South Wales v Lepore (2003) 77 ALJR 558; 195 ALR 412.
[4](2001) 207 CLR 562 at 581 [55], [56].
Section 5 of the Act relevantly provides that a person, the discriminator, discriminates against an aggrieved person on the ground of a disability if, because of the aggrieved person's disability, the discriminator treats the aggrieved person less favourably than the discriminator would treat a person without the disability in the same circumstances. Two related questions arise. First, in comparing the treatment of the aggrieved person (here, the pupil) with the treatment that would be given to a person (another pupil) without the disability in the same circumstances, what, if anything, is the other pupil to be assumed to have done? On the appellant's argument, the answer is – nothing. Secondly, was the supposedly less favourable treatment of the pupil because of (on the ground of) the disability? The relationship between those two questions, on the facts of this case, and the dispute to which they have given rise, exists because the pupil's disability is not merely a physical condition, but a physical condition that results in disturbed behaviour.
The appellant contends that, since the pupil's disability is a disorder that results in disturbed behaviour, and since the disturbed behaviour took the form of violent conduct, then a person without the disability in the same circumstances must be taken to be a person who does not engage in violent conduct. On that approach, the comparison required by the Act is between the treatment received by the pupil (suspension and expulsion) and the treatment that would be received by a pupil who did not assault other pupils. The disturbed behaviour being an aspect of the disability, the treatment that would be received in the same circumstances by a person without the disability is the treatment that would be received by a pupil who did not misbehave.
The corollary in relation to the ground of the first respondent's action against the pupil is said to be clear. The appellant points out that an aspect of the pupil's disability was his disturbed behaviour. Since he was suspended and expelled because of his disturbed behaviour, it is said that he was suspended and expelled because of his disability. The same would apply if the disturbed behaviour resulting from a pupil's disorder had taken the form of attempting to burn a school down, or attempting to kill somebody. On the appellant's argument, to suspend or expel such a pupil because of his or her behaviour would be to treat the pupil in that way because of his or her disability.
It may be accepted, as following from pars (f) and (g) of the definition of disability, that the term "disability" includes functional disorders, such as an incapacity, or a diminished capacity, to control behaviour. And it may also be accepted, as the appellant insists, that the disturbed behaviour of the pupil that resulted from his disorder was an aspect of his disability. However, it is necessary to be more concrete in relating par (g) of the definition of disability to s 5. The circumstance that gave rise to the first respondent's treatment, by way of suspension and expulsion, of the pupil, was his propensity to engage in serious acts of violence towards other pupils and members of the staff. In his case, that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder. What, for him, was disturbed behaviour, might be, for another pupil, bad behaviour. Another pupil "without the disability" would be another pupil without disturbed behaviour resulting from a disorder; not another pupil who did not misbehave. The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled. The fallacy in the appellant's argument lies in the contention that, because the pupil's violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conduct persisted, expelled, in less time than the pupil in this case.
If the appellant's argument is correct, the comparison required by the Act is purely formal. If the person without the disability is simply a pupil who is never violent, then it is difficult to know what context is given to the requirement that the circumstances be the same. Furthermore, if the appellant's argument is correct, the Act places a school authority in a position of conflict between its responsibilities towards a child who manifests disturbed behaviour and its responsibilities towards the other children who are in its care, and who may become victims of that behaviour. The language of the Act does not require such a result. In characterising the actions of the first respondent, for the purpose of applying a law against unjust discrimination by making the comparison required by s 5 of the Act, and in considering all the circumstances in which the school principal acted, to compare the treatment of the pupil with the treatment of some other pupil who, without any disability, behaved violently permits due account to be taken of the first respondent's legal responsibilities towards the general body of pupils.
Similar considerations arise in respect of the related issue of identifying the ground of the first respondent's action, which is to be considered in the light of both s 5 and s 10 of the Act. The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled. It is the school authority that is the alleged discriminator, and it is the reason or reasons for action of the responsible officers of the school authority that is or are in question. It is their conduct that is to be measured against the requirements of the Act. If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable for him to say that his disability resulted in his expulsion. However, ss 5, 10 and 22 are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil[5]. In the light of the school authority's responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil's disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal's decision was the danger to other pupils and staff constituted by the pupil's violent conduct, and the principal's responsibilities towards those people.
[5]Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176-177 per Deane and Gaudron JJ, 184 per Dawson J, 208 per McHugh J; Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J, 400 per McHugh J.
In identifying and considering the basis of, and/or the legitimacy of, a decision, for the purpose of measuring the conduct of an alleged discriminator against the requirements of the Act, it is proper, and may be necessary, to have regard to the objects of the Act as defined in s 3, and to the scope and purpose of the legislation. Even though functional disorders may constitute a disability, and disturbed behaviour may be an aspect of a disability, it is not contrary to the scheme and objects of the Act to permit a decision-maker to identify a threat to the safety of other persons for whose welfare the decision-maker is responsible, resulting from the conduct of a person suffering from a disorder, as the basis of a decision. Just as questions of causation may be affected by normative considerations arising out of the legal context in which they are to be answered[6], a statutory question as to the basis of a person's decision may be affected by similar considerations. There is no reason for rejecting the principal's statement of the basis of his decision as being the violent conduct of the pupil, and his concern for the safety of other pupils and staff members. It is not incompatible with the legislative scheme to identify the basis of the principal's decision as that which he expressed. On the contrary, to identify the pupil's disability as the basis of the decision would be unfair to the principal and to the first respondent. In particular, it would leave out of account obligations and responsibilities which the principal was legally required to take into account.
[6]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 269 [37]-[40].
Conclusion

The appeal should be dismissed. I agree with the orders proposed by Gummow, Hayne and Heydon JJ.
McHUGH AND KIRBY JJ. This case is about discrimination on the ground of disability. It concerns the suspensions and later exclusion from school of a disabled student whose disability occasionally led him to violent and abusive behaviour. It concerns the failure of an educational authority to treat him equally with other students by taking steps that would have eliminated or substantially reduced his disruptive behaviour and allowed him to enjoy the same quality education as his fellow students enjoyed.
The Disability Discrimination Act 1992 (Cth) ("the Act"), reflecting international developments[7], has introduced important protections for disabled people. In certain cases, the Act requires that disabled persons be given equal treatment and it makes it clear that the equal treatment must be real and not notional. To avoid a finding of discrimination against a disabled person, a person may have to take steps that cause expense and inconvenience to that person. But that is what the Act requires unless the expense and inconvenience amounts to unjustifiable hardship.
[7]Dubler, "Direct Discrimination and a Defence of Reasonable Justification", (2003) 77 Australian Law Journal 514 at 515-516.
The international developments reflected in the Act have the high object of correcting centuries of neglect of, and discrimination and prejudice against, the disabled. It would be wrong and contrary to the purpose of the Act to construe its ameliorative provisions narrowly. Yet this is the result of the decision in the court below. The learned judges of the Full Court of the Federal Court who heard the case felt driven to adopt the construction they placed on the Act because of what they expressed as an intuitive feeling that reading the Act in the way contended for by the appellant would impose "draconian consequences" on the first respondent.
As Dixon CJ once pointed out[8], "once the subject matter is fairly within the province of the Federal legislature the justice and wisdom of the provisions ... are matters entirely for the Legislature and not for the Judiciary." The correct path of judicial interpretation – as always – requires that the Act be applied according to its terms and purposes. If its application in a particular case operates or may seem to operate harshly, it is a matter for the Parliament to correct. And it should not be forgotten that construing the Act narrowly because of the consequences in a particular case may lead to injustices in other cases perceived by the judicial mind as more deserving. In matters of anti‑discrimination law generally, and disability law in particular, judicial intuition as to what is "draconian" must be kept in firm check, for sometimes it will be based unconsciously on the very attitudes that the law is designed to correct and redress[9].
[8]Burton v Honan (1952) 86 CLR 169 at 179.
[9]Where statutory provisions, or the common law, are not designed to alter common attitudes and stereotypes, intuition can sometimes afford a useful check for judicial reasoning: cf Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 642 [164]; Gibbs v Mercantile Mutual Insurance (Australia) Ltd (2003) 77 ALJR 1396 at 1421 [137]; 199 ALR 497 at 531.
It is essential, therefore, that Australian courts give full effect to the language and purpose of the ameliorative provisions of the Act whatever opinion individual judges may have of the justice or wisdom of particular provisions. This is particularly so where, as here, the Act contains novel concepts and beneficial objects and applies to many cases involving circumstances quite different from the present. Moreover, on the findings of the Commissioner who initially heard the complaint and determined it in favour of the appellant, the first respondent probably would not have been forced to choose between educating or expelling the disruptive and disabled student if it had taken steps that were open to it. Although it is not a relevant issue, taking those steps was not so inconvenient or expensive a course that it imposed unjustifiable hardship on the first respondent.
In our opinion this appeal must be allowed.
Statement of the case
Mr Alexander Purvis and his wife had the foster care of Mr Daniel Hoggan who was born on 8 December 1984. Mr Hoggan sustained severe brain injury when he was 6 or 7 months old. As a result, he suffers from behavioural problems and other disabilities. In 1998, Mr Purvis complained to the Human Rights and Equal Opportunity Commission ("HREOC") that the State of New South Wales (Department of Education and Training) had discriminated against Mr Hoggan on the ground of his disability. He complained that the State had done so by subjecting Mr Hoggan to a "detriment" in his education and by suspending and eventually excluding him from a State school because of his misbehaviour.
The Commissioner appointed by HREOC to determine the complaint found that the State through its agents had treated Mr Hoggan less favourably than it would have treated another student in circumstances that were the same or not materially different and had thereby contravened the Act. The Commissioner found that the State had treated him less favourably by failing to:
. adjust its policies to suit his needs;
.provide him with teachers with the skills to deal with his behavioural problems; and
.obtain expert assistance to formulate proposals to overcome those problems.
The Commissioner also declared that the State should pay compensation of $49,000 to Mr Purvis for the discriminatory treatment of Mr Hoggan.
The Federal Court (Emmett J) set aside the declarations made by the Commissioner and remitted the complaint to HREOC "to make findings and recommendations according to law." His Honour held that, because Mr Hoggan had been suspended and excluded from the school by reason of his misbehaviour, the State had not discriminated against him on the ground of disability. His Honour also held that the State had no legal obligation to accommodate the needs of Mr Hoggan and that, in determining whether he had been less favourably treated than other students, the comparator was a student without a disability who had misbehaved in the same way. The Full Court of the Federal Court dismissed an appeal against the orders made by Emmett J in the Federal Court.
Subsequently, this Court granted Mr Purvis special leave to appeal against the orders of the Full Court. HREOC and the State are respondents to the appeal. The Attorney-General of the Commonwealth, acting under s 78A of the Judiciary Act 1903 (Cth), intervened in the appeal and made submissions to the Court concerning the construction of the Act. The Court granted People with Disabilities (NSW) Inc, the peak cross-disability rights and advocacy organisation in New South Wales, leave to intervene as amicus curiae to provide written submissions on the meaning of the term "disability" in the Act.
The issues in the appeal are:
1.Does "disability" as defined in s 4(1) of the Act include the behavioural manifestation of a disorder?
2.Does the Act contain an obligation to provide reasonable accommodation for persons with a disability?
3.Does the comparator for determining whether there has been "less favourable" treatment of the disabled person have that person's characteristics?
4.What is the correct test of causation in determining whether a person has been discriminated against "on the ground of" his or her disability?
In our opinion, the behavioural manifestation of an underlying disorder or condition is itself a disability for the purposes of the Act. The Federal Court erred therefore in holding that the Act distinguished between the underlying condition and its manifestations. However, the Federal Court correctly held that the Act does not contain an obligation to provide accommodation for persons with disabilities although, in our opinion, it took too narrow a view of what constitutes "accommodation" for the purpose of the Act. Providing accommodation to meet a person's disabilities goes to the issue under s 5 of the Act as to whether the circumstances of the disabled person are materially different from the circumstances of a person who is not disabled. It goes to an issue of evaluation, not obligation. The Federal Court also erred in holding that the comparator for determining whether there has been "less favourable" treatment of the disabled person has that person's characteristics. The circumstances of the person alleged to have suffered discriminatory treatment are excluded from the circumstances of the comparator in so far as those circumstances are related to the prohibited ground. The contrary view would seriously undermine the remedial objects of the Act. The Commissioner did not err, therefore, in holding that the characteristics of the disabled person cannot be imputed to the appropriate comparator. On the factual findings that he made, the Commissioner did not err in holding that the State through its agents had treated Mr Hoggan less favourably than other students. Finally, the Commissioner applied the correct test for determining whether a person has been discriminated against on the ground of that person's disability. The Commissioner applied the test: was the disability a reason for the treatment suffered? That is the correct test, although the Commissioner wrongly described it as a "but for" test.
It follows that this appeal must be allowed. However, because the decision of the Commissioner contains legal errors, the award of damages cannot stand. The appropriate order is to allow the appeal to this Court and the Full Court of the Federal Court and to direct that the complaint be remitted to HREOC in accordance with the Human Rights Legislation Amendment Act (No 1) 1999 (Cth) and the Human Rights Legislation (Transitional) Regulations 2000.
The material facts
Mr Hoggan was a ward of the State. He had been in the full time foster care of Mr Purvis and his wife since 1989. Mr Hoggan sustained severe brain injury when he was about 6 or 7 months old as the consequence of an encephalopathic illness. The injury resulted in damage to the parieto-occipital lobes and bilateral damage to the frontal lobes of his brain. As a result of his brain injury, Mr Hoggan suffers from an intellectual disability, visual difficulties, epilepsy and behavioural problems. Dr Graham Wise, a child neurologist, testified at the hearing before the Commissioner that:
"The major part of [Mr Hoggan's] difficult behaviour would be disinhibited and uninhibited behaviour. That is, your frontal lobes are very important for you to smooth out emotional ups and downs, to cope with emotional crises in a relatively even way. So he would be likely to have flares of temper which he wouldn't be able to control as well as a child of his age and with this degree of intellectual handicap who did not have those particular frontal lesions."
Mr Norman Lord, a registered psychologist employed by the New South Wales Department of Community Services, testified that:
"He acts without a view of consequences or an intent on the behaviour, so he is more prone to strike out ... Initially he may withdraw. As he becomes frustrated he may start talking to himself, he may start sort of using offensive words, to isolate himself or – he may isolate himself and use offensive words – become aggressive and push somebody away, strike out at somebody who is not involved, all as a sense of not being able to articulate what the problem is that he's having with his feelings."
In the second half of 1996, Mr and Mrs Purvis enquired about enrolling Mr Hoggan at the South Grafton High School ("the High School") for the 1997 school year. At that time, Mr Hoggan was attending another school. Mr and Mrs Purvis felt that his behaviour had regressed as a result of the segregated environment at that school. They met with the then principal of the High School who rejected their application to enrol Mr Hoggan at that school. In December 1996, the Department of Education and Training appointed a new principal, Mr Barry Bartley, to the High School. Following discussions with Mr and Mrs Purvis and the Department, Mr Bartley decided to enrol Mr Hoggan at the school.
Before Mr Hoggan attended the High School, a Draft Welfare and Discipline Policy ("DWD Policy") relating to him was formulated by modifying the Department's existing Student Welfare Policy. One session of a staff development day was used to allow Mr Hoggan's teachers to discuss his enrolment, education and participation at the school. The use of a "progress sheet" to monitor his behaviour was also discussed at this meeting. This form required teachers to grade Mr Hoggan on his participation, co-operation, understanding and behaviour at 20-minute intervals during the class. He was also to be provided with a teacher's aide to assist him in class.
Mr Hoggan first attended the High School in April 1997. He attended with sporadic interruptions until December 1997 when he was permanently excluded because of his antisocial and violent behaviour. His problems at the school began in April 1997 when he hit one of his aides because he did not want to attend school. Despite his previous good behaviour, he was given a one-day suspension instead of the warning prescribed by the DWD Policy. Mr Bartley testified at the HREOC hearing that there was "zero tolerance" for such behaviour in the school. At a case management meeting held on 30 April 1997, Mr Purvis suggested that the DWD Policy might have to be adjusted for Mr Hoggan because he might interpret suspension as a reward, rather than a punishment. No adjustment was made.
On 7 May 1997, Mr Bartley suspended Mr Hoggan for two days for verbally abusing a teacher's aide and for kicking a fellow student. Mr and Mrs Purvis asserted that this behaviour related to the inexperience of the aide (who had been working with Mr Hoggan for only three days) and her attempt to force him to go to a physical education class. The Commissioner rejected the aide's view that Mr Hoggan's actions were premeditated because that view did not accord with the medical and psychological evidence.
On 8 May 1997, Mr and Mrs Purvis spoke to Mr Bartley about the appropriateness of suspension as a behaviour management strategy. They all agreed that Mr Lord should be contacted and that a meeting should be arranged to discuss behaviour management strategies for Mr Hoggan.
On 30 May 1997, Mr Hoggan was placed in "time out" because he kicked a desk over, swore and kicked other children and their bags. The communication book noted that Mr Hoggan "is very stressed about Science test (Monday) (that's what upset him)."
In mid-June 1997, Mr Lord attended a case management meeting where he offered to observe Mr Hoggan at school and devise a behaviour management plan for him in consultation with Mr Hoggan's teachers at no cost to the school. The school did not accept this offer.
Mr Hoggan again misbehaved on 19, 23 and 24 June and 25 July 1997 but was not suspended. On 30 July 1997, however, Mr Hoggan kicked a teacher's aide and was suspended for two days. The Commissioner accepted Mr Bartley's evidence that at this stage any other student would have been expelled from the school.
On 8 August 1997, Mr Peter Garrard and Mr Ken Callan, special education consultants with the Department of Education and Training, attended a case management meeting at the school. Later, they prepared a report recommending a number of strategies for the management of Mr Hoggan's behaviour. They provided the report to Mr Ronald Phillips, the District Superintendent, but he withheld it from Mr Bartley and the case management team because he was not satisfied that its content and recommendations would improve the situation at the school. Mr Phillips thought, despite the wide consultation referred to in the report, that the authors "had failed to widely consult". He also "felt that people with expertise on the ground were needed rather than a set of recommendations."
On 2 September 1997, Mr Hoggan was suspended for a further 13 days (subsequently reduced to 8 days) for kicking another student. This incident occurred after a stressful weekend for Mr Hoggan. He returned to school on 15 September 1997. But on 18 September 1997, he was again suspended for 12 days after punching an aide in the back. This incident occurred after he had continually refused, despite encouragement from the aide and others, to go to class. All decisions to suspend Mr Hoggan were made in accordance with the DWD Policy and the general School Discipline Policy. Violent or inappropriate behaviour was the reason recorded for all of his suspensions.
During 1997, a number of people unsuccessfully attempted to overcome the causes of Mr Hoggan's behaviour. In September, following a meeting with the teacher's aides, Mr Robert Field, a special education consultant, made a number of recommendations regarding his behaviour. About this time, Mr Bartley prepared his own plan for Mr Hoggan's ongoing attendance at the school. Ms Carrie Brooks, a program officer with the Department of Community Services, also produced guidelines designed to address Mr Hoggan's behaviour by making environmental changes, increasing alternative communication skills and providing opportunities for stress relief. None of those suggestions was adopted by the educational authority.
In October 1997, the school counsellor recommended that Mr Hoggan be moved and enrolled in the Support Unit at Grafton High School. At a meeting held in November 1997, Mr Bartley and others decided that it was in Mr Hoggan's best interests to have him enrol at the Support Unit rather than at the High School. On 3 December 1997, Mr Bartley met with Mr and Mrs Purvis and indicated that he would exclude Mr Hoggan from the High School. On the same day, Mr Bartley wrote to the Department of Community Services, Mr Hoggan's legal guardian, informing the Department that he was excluding Mr Hoggan from the High School. Mr Bartley said that "the situation that caused his last suspension for very violent behaviour has not been resolved". In his letter, Mr Bartley expressed concern for the health and safety of the 80 staff and 1,000 students at the school because of Mr Hoggan's violent behaviour.
The legislation
The Act is the product of an international consensus that people with disabilities have long been subjected to discrimination in employment, education, access to premises, providing goods and services and many other areas of social and economic life. In 1982, the United Nations General Assembly adopted a World Programme of Action Concerning Disabled Persons outlining measures to equalise opportunities for people with disabilities. To encourage implementation of this Programme, the General Assembly proclaimed the period from 1983 to 1992 as the United Nations Decade of Disabled Persons[10]. The Act was passed in 1992, the final year of that Decade[11].
[10]Human Rights and Equal Opportunity Commission, Draft Position Paper, Disability and Human Rights: Needs and Options for Further Protection, July 1991 at 35 [3.4].
[11]Australia, House of Representatives, Parliamentary Debates (Hansard), 26 May 1992 at 2751.
The structure of the Act, and to a large extent its detail, are drawn from the Sex Discrimination Act 1984 (Cth) and Racial Discrimination Act 1975 (Cth)[12]. The drafting of the Act also owes a heavy debt to Australian State anti-discrimination laws[13]. The relevant provisions of the Act are:
[12]Australia, House of Representatives, Parliamentary Debates (Hansard), 26 May 1992 at 2752.
[13]Hastings, "FounDDAtions: Reflections on the First Five Years of the Disability Discrimination Act in Australia", (1997) published at See also Australia, House of Representatives, Parliamentary Debates (Hansard), 26 May 1992 at 2752.
"Objects
3.        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) ... education ...
(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.
Interpretation
4.        (1)      In this Act, unless the contrary intention appears:
...
'disability', in relation to a person, means:
(a)total or partial loss of the person's bodily or mental functions; or
(b)      total or partial loss of a part of the body; or
(c)the presence in the body of organisms causing disease or illness; or
(d)the presence in the body of organisms capable of causing disease or illness; or
(e)the malfunction, malformation or disfigurement of a part of the person's body; or
(f)a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g)a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h)presently exists; or
(i)previously existed but no longer exists; or
(j)may exist in the future; or
(k)is imputed to a person.
...
Disability Discrimination
5.        (1)      For the purposes of this Act, a person ('discriminator') discriminates against another person ('aggrieved person') on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2)      For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
...
Education
22.      (1)      It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the other person's associates:
(a)by refusing or failing to accept the person's application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
(2)      it is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:
(a)by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(b)      by expelling the student; or
(c)by subjecting the student to any other detriment.
...
(4)      This section does not render it unlawful to refuse or fail to accept a person's application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority."

The remedial nature of the Act requires that it be given a broad and beneficial construction[14]. In IW v City of Perth[15], Kirby J said:
"[P]rotective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation."
[14]IW v City of Perth (1997) 191 CLR 1 at 12, 22-23, 27, 39, 58.
[15](1997) 191 CLR 1 at 58.
So far as the language of the Act permits, courts should construe the Act in a manner that furthers the goal of truly equal treatment for disabled persons.
The Human Rights and Equal Opportunity Commission hearing
On 22 March 1998, Mr Purvis (acting on behalf of Mr Hoggan) complained to HREOC that Mr Hoggan had been discriminated against by the State in contravention of the Act. Mr Purvis claimed that, as a result of Mr Hoggan's disability, he was excluded and suspended from the High School and subjected to a detriment in his education by the failure to make reasonable accommodation for him.
An attempt to conciliate the complaint was unsuccessful. Subsequently, HREOC referred the complaint to Commissioner Innes for hearing. The Commissioner found[16] that the State, through its agents, had discriminated against Mr Hoggan by failing to accommodate his disability and that this failure led to the suspensions and Mr Hoggan's ultimate exclusion from the school. The Commissioner held that Mr Hoggan's behaviour was so closely connected to his disability that less favourable treatment on the ground of his behaviour was discrimination on the ground of his disability. The Commissioner also held that, to determine the discrimination issue, Mr Hoggan's treatment by the State had to be compared to that of a student without his disability and therefore without his disturbed behaviour. The Commissioner made a declaration that the State pay $49,000 in compensation.
[16] Purvis obo Hoggan v The State of New South Wales (Department of Education) (2001) EOC ¶93-117.
Relevant findings by the Commissioner
The Commissioner found that the State had failed to accommodate Mr Hoggan's disability in three ways. He also made findings on the cause of Mr Hoggan's suspensions and exclusion.
Failure to adjust the Draft Welfare and Discipline Policy
The Commissioner found that the State should have consulted more broadly in the development of the DWD Policy. People who were very well placed to participate in the formulation process, such as Mr and Mrs Purvis, the teacher's aides, Mr Lord and Mr Field were not consulted. Instead, the policy was largely based on how the school counsellor thought Mr Hoggan might behave; many of the other people involved in its formulation had not even met Mr Hoggan.
The Commissioner found that during 1997 the school did not modify its policy despite its experiences with Mr Hoggan. The failure to do so continued even after Mr Purvis proposed modifications and Mr Lord offered to work in this area. The Commissioner was satisfied that the inflexibility of the DWD Policy and the impact that it had in the decisions to suspend and exclude Mr Hoggan, constituted a detriment in terms of s 22(2)(c) of the Act.
Failure to provide teachers with training or an awareness program
The Commissioner found that Mr Hoggan was largely taught by teacher's aides, rather than by teachers. He also found that overall Mr Hoggan's teachers had a very poor knowledge of the nature of Mr Hoggan's disabilities and how they affected his learning and behaviour. Teachers' views about Mr Hoggan's disabilities ranged, for example, from one teacher who "thought it was visual" to another who "did not appreciate that he had a vision disability." The Commissioner found that, although various medical reports relating to Mr Hoggan's disabilities were on his file at the school and the principal was aware of his disabilities, Mr Hoggan's teachers were either unaware of the file or did not read it.
In particular, the Commissioner found it "quite concerning" that the special teacher for learning difficulties "did not have an understanding of the relationship between [Mr Hoggan's] disability and his behaviour." He also noted that this teacher was given relief time to assist Mr Hoggan, but appeared to have spent little time with him. In addition, the Commissioner found that the strategy of using the "progress sheets" was not successful. First, Mr Hoggan was the only child monitored in this way. Second, most teachers only completed them to report poor conduct. Because of these inconsistencies, the forms were of little use in formulating behaviour management strategies.
The Commissioner found that the limited attempts to make training available to Mr Hoggan's teachers constituted a detriment in terms of s 22(2)(c) of the Act. This failure did "not flow to suspensions and exclusion" and was a ground for separate relief.
Failure to obtain the assistance of experts
The Commissioner found that the State (through its responsible officers) did not obtain the assistance of experts in special education or behaviour until late in Mr Hoggan's placement and that even then most of their recommendations were not acted upon. This "failure, in part, led to the eventual ending of the placement." The Commissioner said that the implementation of some or all of the proposals in the report provided by Mr Garrard and Mr Callan could have averted the deteriorating situation that developed as the year progressed. He also found that the State had ignored all but one of Mr Field's recommendations and had not acted upon the recommendations in Mr Bartley's plan for Mr Hoggan's ongoing attendance at the school or the strategies proposed by Ms Brooks.
Cause of suspensions and exclusion
The Commissioner said that the failure to adjust the DWD Policy and the failure to engage experts led to the decisions to suspend and ultimately exclude Mr Hoggan. In relation to the suspensions the Commissioner said:
"As already indicated, I am satisfied that Mr Bartley imposed the suspensions in compliance with the policies and as a result of [Mr Hoggan's] behaviour. Whilst I understand Mr Bartley's approach on this point (zero tolerance to what he described as violence) it was the outcome that may have been different if ... more flexibility had occurred. I accept the evidence of Mr Purvis and Mr Lord that [Mr Hoggan] could not make the association between his behaviour and the suspensions. This does not, in my view, indicate an incapacity to cope with the stresses of high school life. It indicates that other management strategies should have been tried before the placement was brought to an end. Mr Purvis requested this, Mr Lord offered to assist, and Messrs Garrard and Callan made recommendations. None of these options were taken up."
In commenting on the decision to exclude Mr Hoggan, the Commissioner said:
"The complainant's view is that some of the strategies used to manage [Mr Hoggan's] behaviour sent him wrong messages, and actually caused the behaviour to worsen. As an example, it was argued that being suspended (and thus sent home) for hitting or kicking could be perceived by [Mr Hoggan] as a reward rather than a punishment. Also, such punishments isolated [Mr Hoggan] further and increased the chances of him 'acting out'. This view is supported by the evidence of John Lord ... and by the recommendations in the Garrard [and] Callan report ...
On balance, I am inclined to accept the complainant's view on this issue. I am satisfied that ... had [Mr Hoggan] received some different messages his 'acting out' would not have increased. It is unfortunate that the advice of Messrs Lord, Callan and Garrard were not acted upon, as it is my view that had this occurred [Mr Hoggan's] 'acting out' would have diminished. Had this been the case Mr Bartley and the Department may not have formed the views that they did with regard to [Mr Hoggan's] exclusion."
The Commissioner found that the suspensions and exclusion constituted a breach of the Act. Because the inflexibility and failure to consult with experts had other effects besides the suspensions and exclusion, they were ground for separate relief.
The Federal Court proceedings
The State applied under the Administrative Decisions(Judicial Review) Act 1977 (Cth) to the Federal Court for an order of review of the decision of the Commissioner. The State alleged errors of law concerning:
. the meaning of discrimination "on the ground of" a disability;
. the application of s 5(2) of the Act;
. the relevant comparator; and
.the meaning of the words "benefit" and "detriment" in s 22(2) of the Act.
The Federal Court (Emmett J) held[17] that the Commissioner had erred in relation to each of these matters. His Honour set aside the decision of the Commissioner and remitted the matter to HREOC "to make findings and recommendations according to law."
[17]New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69.
Mr Purvis appealed to the Full Court of the Federal Court (Spender, Gyles and Conti JJ), which dismissed the appeal[18]. Both Emmett J and the Full Court held that, for the purposes of the Act, a distinction must be drawn between a "disability" and the "conduct which it causes." They also held that the proper comparison for determining whether there had been discrimination within the meaning of the Act was between Mr Hoggan and another student manifesting the same behaviour. Their Honours rejected the Commissioner's finding that to treat Mr Hoggan less favourably because of his behaviour was to discriminate against him because of his disability.
[18]Purvis v New South Wales (Department of Education and Training) (2002) 117 FCR 237.
Issue 1: the meaning of "disability"
The Commissioner accepted that, in terms of s 4(1) of the Act, Mr Hoggan's disabilities consist of:
(a)an intellectual disability that manifests in unusual individual mannerisms and disturbed behaviour such as rocking, humming, swearing and at times aggressive behaviour such as hitting or kicking;
(b)an intellectual disability that affects Mr Hoggan's thought processes, perception of reality and emotions, and results in disturbed behaviour;
(c)an intellectual disability that results in Mr Hoggan learning differently from a person without the intellectual disability;
(d) a visual disability;
(e) epilepsy; and
(f)a past disability, namely severe encephalopathic illness.
The Commissioner found that Mr Bartley made his decisions to suspend and exclude Mr Hoggan because of Mr Hoggan's behaviour and not because of his disability[19]. Accordingly, the Commissioner did not equate Mr Hoggan's behaviour with his disability. But the Commissioner found that Mr Hoggan's behaviour was so closely connected with his disability that less favourable treatment on the ground of behaviour would amount to less favourable treatment on the ground of the disability that caused that behaviour. It appears that this finding is relevant to the issue of causation rather than the definition of "disability".
[19]The fact that the Commissioner also found that Mr Hoggan was excluded for broader reasons than just behavioural, including the view that he "could not operate in a regular high school environment as a result of his disability", is discussed at [169].
In the Federal Court, Emmett J took a different view. His Honour said:
"[T]here is a distinction to be drawn between a disability within the meaning of the Act, on the one hand, and behaviour that might result from or be caused by that disability on the other hand. Less favourable treatment on the ground of the behaviour is not necessarily less favourable treatment by reason of the disability." (original emphasis)
Emmett J said that pars (f) and (g) of s 4(1) are to be read as meaning that only a "disorder or malfunction" or a "disorder, illness or disease" that is manifested in certain symptoms will constitute a disability. Thus, it is the "disorder or malfunction" or the "disorder, illness or disease" that is the disability, not the symptom of that condition.
The Full Court held that Emmett J was correct in holding that the Commissioner had misdirected himself as to the proper construction of s 4(1) by regarding Mr Hoggan's conduct as inseparable from his disability. Their Honours said:
"In our opinion, that conduct was a consequence of the disability rather than any part of the disability within the meaning of s 4 of the Act. This is made quite explicit in subs (g), which most appropriately describes the disability in question here and which distinguishes between the disability and the conduct which it causes. The same may be said of subs (f). The other subsections do not involve conduct."
Mr Purvis contends that Mr Hoggan's behaviour is not the mere consequence of his disability; he submits that the behaviour forms part of the disability. He contends that the term "disability" is concerned fundamentally with functional limitations – the inability of a person to act within what might be thought of as a normal range – not simply the underlying physical or pathological condition. But the State submits that Parliament has expressly drawn a distinction in the Act between the disability and the consequences of the disability. HREOC submits that Parliament has not adopted terminology that allows for precise distinctions to be drawn between physical causes and outward manifestations. It submits that it is not correct to say that the disability is the condition that causes the loss of function. The Attorney-General submits that, although the Full Court correctly construed s 4(1) as excluding the disturbed behaviour resulting from the disorder, its interpretation of "disability" as being merely the underlying condition is too narrow. The Attorney-General submits that disability is intended to include functional disorders, such as an incapacity to control behaviour. People with Disabilities (NSW) Inc also submits that the definition of "disability" includes the functional limitations arising as a result of impairment. It submits that the definition in the Act includes both "impairment" and "disability" as they were defined internationally at the time the Act was passed.
In our view, the Federal Court's characterisation of disability as merely referring to the underlying condition does not accord with the proper construction of s 4(1) of the Act. Disability is defined broadly in s 4(1), the legislative intent being to capture the full range and nature of disabilities. As defined, it includes the functional limitations that result from the underlying condition. This interpretation gives the definition an operation consistent with the ordinary meaning of disability, viz, a "lack of ... physical or mental ability"[20]. The Act's definition draws upon existing definitions in Commonwealth and State legislation, as well as the meaning of disability in the international community[21]. The paragraphs of the definition that arguably apply to Mr Hoggan's behavioural problems are (a), (e) and (g).
[20]The Macquarie Dictionary, 3rd ed (1997) at 610.
[21]Jones and Basser Marks, "The Limitations on the Use of Law to Promote Rights: An Assessment of the Disability Discrimination Act 1992 (Cth)", in Hauritz et al (eds), Justice for People with Disabilities: Legal and Institutional Issues, (1998) 60 at 65.
Paragraph (a)
Paragraph (a) states that disability means the "total or partial loss of the person's bodily or mental functions". The focus of this paragraph is on loss of functions rather than the cause of any such loss. The ordinary meaning of the phrase "mental functions" would include the manner in which the mind functions through processes of thought and capacities to learn and control behaviour. Dictionaries define the term "mental" to include "performed by or existing in the mind" or "relating to the intellect"[22] and "done by the mind"[23]. They define "function" to mean "to perform a function; act; serve; operate ... to carry out normal work, activity, or processes."[24]
[22]The Macquarie Dictionary, 3rd ed (1997) at 1345-1346.
[23]The Australian Oxford Dictionary, (1999) at 846.
[24]The Macquarie Dictionary, 3rd ed (1997) at 859.
Thus, the definition of disability contained in par (a) applies to Mr Hoggan because he suffers from a partial loss of his adaptive behaviour ability.
Paragraph (e)
Paragraph (e) states that disability means "the malfunction ... of a part of the person's body". This paragraph also focuses on functional ability, rather than underlying cause. "Malfunction" is defined in dictionaries to mean "a failure to function in a normal or satisfactory manner"[25] (emphasis added) or "failure to function properly"[26] (emphasis added). Mr Hoggan's brain malfunctions. His condition therefore falls within the definition of disability in par (e).
[25]The Australian Oxford Dictionary, (1999) at 816.
[26]The Macquarie Dictionary, 3rd ed (1997) at 1304.
Paragraph (g)
Paragraph (g) declares that disability means "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour". Mr Purvis contends that the words "that affects" and "that results in" are conjunctive and that the disability includes the "disturbed behaviour".
The disabilities referred to in par (g) are confined by the adjectival phrases introduced by the word "that". The words that follow describe the type of disorder, illness or disease encompassed by the Act. The adjectival clauses cannot be definitive of the "disorder, illness or disease"; otherwise the Act would not protect persons who had a condition that did not manifest itself in disturbed behaviour because of the stage of the condition or because it was being effectively treated.
The interpretation given to the words "disorder, illness or disease" by the Full Court, however, is too narrow. The Macquarie Dictionary defines "disorder" to mean "a derangement of physical or mental health or functions"[27] (emphasis added). Thus, Mr Hoggan's behaviour is part of his disability because it includes his incapacity to adapt his behaviour to a standard consistent with the safety of other pupils, teachers and aides. His disability is not confined to his brain damage.
[27]The Macquarie Dictionary, 3rd ed (1997) at 617.
International organisations also recognise that the term "disability" includes functional difficulties. When the Act was drafted, the most widely accepted classification scheme covering all disability types, both internationally[28] and domestically, was that of the World Health Organisation's International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the Consequences of Disease ("the ICIDH"). It recognised that a disability may include functional difficulties. The Act's definition of "disability" incorporates the key terminology of the ICIDH[29]. The ICIDH provides a conceptual framework for "disability" that describes three dimensions – impairment, disability and handicap.
[28]See United Nations World Programme of Action concerning Disabled Persons, (1982) at [6].
[29]Madden and Hogan, The Definition of Disability in Australia, (1997) at 30.
Impairment is defined as "any loss or abnormality of psychological, physiological, or anatomical structure or function"[30]. It includes the existence or occurrence of an anomaly, defect or loss in a limb, organ, tissue or other structure of the body, or a defect in a functional system or mechanism of the body, including the systems of mental function.
[30]World Health Organisation, International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the Consequences of Disease, (1980) at 27.