Trindall v NSW Commissioner for Police
[2005] FMCA 2
•7 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
TRINDALL v NSW COMMISSIONER FOR POLICE [2005] FMCA 2
HUMAN RIGHTS – Disability and race discrimination in employment – applicant with sickle cell trait – applicant placed on restricted duties –whether the imposition of work restrictions constituted direct disability discrimination or racial discrimination considered – whether the applicant was subjected to indirect disability discrimination considered. Anti-Discrimination Act 1977 (NSW), s.54
Disability Discrimination Act 1992 (Cth), ss.4, 5, 6, 15, 47
Federal Magistrates Act 1999 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Racial Discrimination Act 1975 (Cth), ss.9, 15Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Allender v Department of Human Resources, Victoria [1997] HREOCA 44 (20 July 1997)
Austrlaian Iron & Steel Pty Limited v Banovic (1987) 168 CLR 165
Boreland v Brambles Security Services Limited [2000] NSWADT 147
Bugden v State Rail Authority of NSW (1991) EOC 92-360
Cargill Australia Limited v Higginson [2002] NSWADT 20
Catholic Education Office v Clarke [2004] FCAFC 197
Clarke v Catholic Education Office (2003) 202 ALR 340
Clinch v Commissioner of Police (1987) EOC 92-203
Coleman v Commissioner of Police (2001) EOC 93-133
Darlington v Casco Australia Pty Ltd [2002] FMCA 176
Earle v Castlemaine District Community Hospital [1974] VR 722
Forbes v Australian Federal Police [2003] FCAFC 95
Forbes v Commonwealth of Australia [2003] FMCA 140
Gilroy v Angelov (2000) 181 ALR 57
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Hinchliffe v University of Sydney [2004] FMCA 85
Horne & McIntosh v Press Clough Joint Venture (1994) EOC 92-591
IW v City of Perth (1997) 191 CLR 1
Jones v Dunkel (1959) 101 CLR 298
King-Ansell v Police (1979) 2 NZLR 531
Kitt v Tourism Commission (2987) EOC 92-196
Leonard v Youth Hostels Association of Australia (1995) ECO 92-763
Leslie v Graham [2002] FCA 32
Mandla v Dowle (1983) 2 AC 548
Mayer v ANSTO [2003] FMCA 209
New South Wales v Lepore (2003) 195 ALR 412
Payne v Parker [1976] 1 NSWLR 191
Purvis v Department of Education (2003) 78 ALJR 1
Purvis v New South Wales (Department of Education & Training) (2003) 202 ALR 133
Randell v Consolidated Bearing Company (SA) Pty Ltd (2002) FMCA 44
Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160
Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987
State Transit Authoirty v Sloey [1999] NSWSC 47
Sullivan v Moody (2001) 207 CLR 562
Thomson v Orica Australia Pty Ltd (2002) 116 IR 186
Waters v Public Transport Corporation (1991) 173 CLR 349
Williams v Tandanya Cultural Centre (2001) 163 FLR 203
Applicant: BRADLEY TRINDALL
Respondent: NSW COMMISSIONER OF POLICE
File No: SYG2100 of 2003
Delivered on: 7 February 2005
Delivered at: Sydney
Hearing dates:
Date final submissions received:
28-30 June, 10 & 11 August, 8 September 2004
1 December 2004
Judgment of: Driver FM REPRESENTATION
Counsel for the Applicant: Mr M Gibian
Solicitors for the Applicant: Jones Staff & Co
Counsel for the Respondent: Mr Fernan
Solicitors for the Respondent: NSW Police Legal Services Unit ORDERS
(1)The Court declares that the respondent unlawfully discriminated against the applicant contrary to ss.15(2)(a) and (d) of the Disability Discrimination Act 1992 (Cth) between 8 May 2001 and 18 October 2002 by imposing formal restrictions upon the applicant’s employment because of his disability and by imposing on the applicant a condition or requirement that he produce medical opinion to justify the removal of those restrictions.
(2)The respondent shall pay general damages to the applicant in the sum of $10,000.
(3)The respondent shall pay special damages to the applicant calculated by reference to the difference between $480 per month and overtime and shift allowances actually earned by the applicant during the period of the unlawful discrimination.
(4)The respondent shall pay interest up to judgment upon the damages awarded pursuant to orders (2) and (3) and at the rate of 10.5 per cent from 8 May 2001.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEYSYG2100 of 2003
BRADLEY TRINDALL Applicant
And
NSW COMMISSIONER OF POLICE Respondent
REASONS FOR JUDGMENT
Introduction and background
1.Bradley Trindall is a NSW policeman. He holds the rank of Constable. On 9 October 2003 he applied under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) for relief against the NSW Police Commissioner for alleged discrimination in employment. Constable Trindall had earlier made a complaint of discrimination to the Human Rights and Equal Opportunity Commission (“HREOC”) which was terminated by the President on 11 September 2003. The notice of termination and accompanying explanatory letter are before me. I am satisfied that there is no issue of jurisdiction and that the present proceedings raise the same matters as were raised before HREOC.
2.The applicant filed points of claim on 11 December 2003. He asserts both disability and racial discrimination. The complaint is primarily one of direct disability discrimination contrary to ss.15(2)(a), (b) and (d) of the Disability Discrimination Act 1992 (Cth) (“the DDA”). This necessarily involves an asserted breach of s.5 of the DDA. Alternatively, the applicant asserts indirect disability discrimination contrary to s.6 of the DDA, involving breaches of the same provisions of s.15 of the DDA.
3.The claim of racial discrimination is one of direct discrimination contrary to s.9(1) and s.15(1)(b) of the Racial Discrimination Act 1975 (Cth) (“the RDA”).
4.Constable Trindall has an inherited condition known as sickle cell trait. He asserts that because of this condition he was placed upon restricted duties and unnecessary and unreasonable restrictions were placed upon his employment. He asserts that he was threatened with discharge from the NSW Police Service on medical grounds. In relation to the RDA, the applicant claims that sickle cell trait peculiarly afflicts black Africans and that he is of mixed Aboriginal/African race. Constable Trindall asserts that he was subjected to an employment condition which constituted a restriction based on race, impairing Constable Trindall’s right to work.
5.The Commissioner denies any breach of either the DDA or the RDA. It is common ground that the NSW Police Service knew of Mr Trindall’s condition when he joined the police force in 1995 and that in 2001 restrictions were placed upon his employment following medical assessments. These restrictions were removed no later than March 2003 following Constable Trindall’s complaint to HREOC and further medical assessments.
The applicant’s evidence
6.The applicant relies upon his own affidavits filed on 27 April 2004 and in court on 28 June 2004, as well as affidavits by Professor Mark Hertzberg filed on 27 April 2004, Dr Michael Ling filed on 5 May 2004 and 28 June 2004 and Sergeant Jon Stewart filed in court on 28 June 2004. All of the deponents apart from Sergeant Stewart were cross‑examined.
7.In his affidavits Constable Trindall deposes that he was diagnosed with the sickle cell trait when he was 20 years of age. He disclosed the condition to the NSW Police Service when he applied to join it. He deposes that he suffered a medical condition during his recruitment training in 1995 which, at the time, was not diagnosed as being associated to the sickle cell trait. He was confirmed as a police officer fit for service other than in the air wing or diving unit.
8.Constable Trindall deposes that, following his confirmation on 17 May 1997, he performed duties at Campsie, Lakemba and Walgett. He was not subject to any restrictions in the performance of his duties. In around May 2000 he was transferred at his own request to Narrabri. He deposes that he did not suffer any complications relating to his sickle cell trait in the performance of his duties, which included attending to domestic violence matters, assaults, street offences and motor vehicle offences.
9.Constable Trindall deposes that his late brother Rodney also had the sickle cell trait, as does his father and several cousins. Rodney Trindall died on 2 October 2000 following an assault resulting in a fall. There was an inquest into his death. Constable Trindall deposes that the coroner had difficulty in establishing the precise cause of death. He deposes that following a telephone call from a Dr Helen Sugo at a pathology laboratory in Glebe, who was apparently working in relation to the inquest, he became concerned that there might be an assumption that his brother had a drinking problem, because he had an enlarged liver. He informed Dr Sugo of the family incidence of the sickle cell trait. Subsequently, an autopsy report was prepared that linked Rodney Trindall’s death to the sickle cell trait.
10.Constable Trindall deposes as to a dispute that occurred between him and the NSW Police Service in 2000 concerning his non attendance for duty during the Olympics in Sydney. He deposes that he did not attend for duty as he had to attend hospital to undergo a medical procedure unrelated to his sickle cell trait. There was subsequently a mediation conference. Constable Trindall deposes that he felt under pressure to disclose details of his sickle cell trait and he was concerned that suggestions had been made that he expected special treatment because of his Aboriginality. He did subsequently disclose information to his superiors Sergeant Ridley and former Superintendent Gillett (now retired). Mr Gillett requested a written report from him. Constable Trindall deposes that Mr Gillett suggested that he put in the report a request that the police help to find answers about his brother’s death and information about the sickle cell trait. He deposes that he was unaware that the report might lead to him being placed upon restricted duties.
11.Constable Trindall deposes that his report was reviewed by the police medical officer, Dr Norris, who recommended that he be assessed for fitness for duties by a clinical haematologist. He was directed to attend a medical assessment with a haematologist (Dr Presgrave) in Sydney in around March 2001. Dr Presgrave also reviewed the coroner’s report into Rodney Trindall’s death and the medical records relating to Constable Trindall’s admission to hospital during police training in 1995. Dr Presgrave came to the conclusion that Constable Trindall had suffered from a sickle cell trait episode in 1995 and recommended that he avoid potential precipitants such as dehydration, heat exposure or physical conditioning. Dr Presgrave recommended that Constable Trindall see another specialist, Dr Burdoukis. He was unavailable as he was overseas and Constable Trindall was referred instead to see Dr Lindeman.
12.Constable Trindall deposes that when he returned to the Narrabri police station he was directed by Mr Gillett to obtain a medical certificate from his GP relating to his fitness for duties. He saw his GP (Dr Ling) in April 2001. Dr Ling provided a medical certificate. Constable Trindall deposes as to a conversation he had with a superior, Inspector Cairncross, some time after January 2001 concerning his condition. Later, by letter dated 8 May 2001, Dr Norris recommended restrictions upon Constable Trindall’s employment after reviewing the reports by Dr Presgrave and Dr Ling. Constable Trindall deposes that he considered the restrictions unreasonable and “precautionary” and “even going beyond the medical certificate of Dr Ling”. Following a consultation with Constable Trindall in around July 2001 Dr Lindeman also suggested precautions to avoid sickling episodes. Dr Norris made a further report dated 1 August 2001 after reviewing Dr Lindeman’s report. Dr Norris imposed permanent restricted duties. Nevertheless, Constable Trindall deposes that neither he nor his immediate superiors (Messers Stewart and Dowdell) received written notification about his work restrictions. Constable Trindall deposes that he became extremely anxious, distressed and depressed after being placed on restrictions. He saw his GP (Dr Ling) several times. He was referred by Dr Ling to a counsellor (Ms Kelly). He saw her about six times. She recommended that he see a psychiatrist but he did not attend because he could not afford it. He believed that his employer should bear the cost as the condition was, in his view, work related. Constable Trindall was prescribed anti-depressant medication which he says he took reluctantly. He deposes that he was on sick leave approximately three or four times during 2001 and 2002 as a result of his work restrictions. He lodged a worker’s compensation claim on 4 June 2001, which was rejected.
13.Constable Trindall deposes that he was very upset about being placed on restricted duties and at no time did he agree or express happiness with the situation. He deposes that several times he complained to his superior, Superintendent Kyle Stewart, about the restrictions. He deposes as to numerous discussions with other officers about the situation. He deposes that Superintendent Stewart told him repeatedly that the restrictions would remain until his GP (Dr Ling) lifted them. He deposes that he went to see Dr Ling several times but that Dr Ling advised that he could not change his medical assessment without fresh specialist opinion.
14.Constable Trindall deposes that on 17 July 2001 he was directed to see Dr Norris again when Dr Norris was visiting Dubbo. Constable Trindall was accompanied by Ms Ros Williams, the rehabilitation officer at Narrabri and driven to the appointment by Constable Mark Lyons. He deposes that he became angry and upset and said that he wished to quit the police service. He deposes that Dr Norris blamed Dr Ling. Constable Trindall deposes that he later changed his mind about leaving the police service and decided to take legal action. Constable Trindall deposes as to conversations he had with Ms Williams while he was on sick leave concerning his situation but Ms Williams was unable to provide worthwhile assistance to him.
15.Constable Trindall deposes that in or around November 2001 Superintendent Stewart asked to attend an appointment between Dr Ling and Constable Trindall and that this occurred on or about 23 November 2001. Constable Trindall deposes that Superintendent Stewart said words to Dr Ling to the effect of:
The restrictions have to be lifted as his career is in jeopardy.
16.He deposes that Dr Ling replied in words to the effect of:
I took advice from the specialist; if the specialist advised me I would lift the restrictions.
17.Constable Trindall deposes that later Superintendent Stewart suggested that he find another doctor who would reverse the restrictions. Constable Trindall deposes that “on several occasions” he asked that the police service find a specialist or help him find a specialist who would lift the restrictions. He deposes that Superintendent Stewart told him that it was up to him to find someone. He deposes that Superintendent Stewart told him that if he could not find someone to lift the restrictions he would recommend that Constable Trindall be medically discharged from the police service. Constable Trindall deposes that this placed a great deal of pressure and anxiety on him.
18.Constable Trindall deposes that as the sickle cell trait is fairly rare in Australia and is most commonly found in people of African descent, he looked for and found an expert overseas. He communicated with Dr Felix Konetey-Ahulu, who Constable Trindall describes as a “world renowned expert” on sickle cell trait and sickle cell disease. Annexure 9 to Constable Trindall’s first affidavit is an e-mail he received from Dr Konetey‑Ahulu. Dr Konetey-Ahulu expressed doubt that Rodney Trindall died because of the sickle cell trait and opined that persons with the sickle cell trait, as opposed to persons with sickle cell disease, rarely suffer any problems. Constable Trindall deposes that he provided copies of the e-mail to various officers in the NSW Police Service and also to a specialist (Dr Presgrave) but got no response other than to be advised by Dr Norris and Superintendent Stewart that a report from Dr Konetey‑Ahulu was not acceptable as he was not based in Australia.
19.Constable Trindall deposes that in or around May 2002 he was informed by Gary Trindall (his uncle) that a letter had been sent to Walgett police station addressed to him (Bradley Trindall) advising that the police medical officer recommended that he be medically discharged from the police service. The letter is undated and unsigned. Constable Trindall deposes that when he read the letter he was shocked and felt numb. He deposes that on 8 May 2002 he lodged a complaint with HREOC. His solicitors wrote to the NSW Police Service requesting that he not be medically discharged pending the resolution of his complaint.
20.Constable Trindall also deposes as to the emotional and financial detriment he suffered as a result of being on work restrictions from January 2001 until January 2003. He deposes that all work restrictions were lifted in January 2003.
21.In his second affidavit Constable Trindall responds to the affidavits of Dr Norris, Superintendent Stewart, Mr Gillett, Inspector Cairncross, Ms Grace, Sergeant Lang, Sergeant Ridley and Ms Williams. Constable Trindall disputes various issues of detail deposed to in those affidavits.
22.I permitted Mr Gibian to lead brief additional oral evidence from Constable Trindall. He corrected various minor details in his affidavits but otherwise adopted them. Constable Trindall also stated in chief that he was instructed not to wear his uniform in June or July 2001 and was only permitted to resume wearing his uniform in around March 2003 when work restrictions were removed.
23.Under cross-examination Constable Trindall was asked whether the crux of his complaint was the restrictions upon his duties imposed upon him. While not directly responding, Constable Trindall said that he regarded these restrictions as a mistake. He accepted that medical practitioners had been involved in the imposition of those conditions. He accepted that in the course of performing his duties it was possible that he might become involved in situations requiring physical exertion, including physical altercations.
24.Constable Trindall was cross-examined at length about his refusal to perform duty at the Sydney Olympics in 2000. He accepted that he had disobeyed a direction to go to Sydney to perform duty at the Olympics but said that he challenged the direction on the basis that proper arrangements had not been made. He was also concerned about the impact of his absence upon his family and the fact that he was to undergo a colonoscopy during the Olympics. Constable Trindall accepted that there were a series of face to face and telephone discussions with his superiors about the issue, some of which became heated and during some of which he swore. He agreed that he was reluctant to disclose details of his colonoscopy to his superiors. He regarded the matter as personal.
25.Constable Trindall was asked a series of questions about his refusal to perform duty at the Sydney Olympics. He stated that he regarded the issue as in doubt because he had not been given details concerning his assignment. He admitted that he disobeyed a direction from his employer. He admitted that he used offensive language on certain occasions in discussing the issue with other officers of the NSW Police Service. He regarded the issue as closed following a mediation under the auspices of the NSW Police Service. No disciplinary action was taken against him.
26.Constable Trindall was asked about an assault upon his brother on 28 September 2000 which led to his brother’s death. He agreed that he reported some medical problems to his doctor (Dr Ling) prior to that event and that he was distressed and upset following it. Mr Fernan sought to question the applicant about the identity of the assailants upon his brother and an apprehended violence order but I ruled that the evidence was inadmissible as irrelevant. Nevertheless, Constable Trindall was shown and accepted as his document annexure A to the affidavit of Shane Jeffrey White. This is a detailed statement prepared by Constable Trindall on 3 October 2000 relating to the death of his brother.
27.Constable Trindall also accepted that he wrote a letter dated 7 October 2000 to the coroner inquiring into the death of his brother. He agreed that he was concerned about the possible impact of the sickle cell trait on the death of his brother. Constable Trindall said that he was concerned following a suggestion raised by an officer of the coroner that his brother may have had a drinking problem because he had an enlarged liver. He was concerned to have the issue properly investigated with reference to sickle cell trait. Constable Trindall was concerned that his brother may have been assumed to have been an alcoholic because he had an enlarged liver and was an Aboriginal.
28.Constable Trindall was cross-examined at length about how the NSW Police Service became aware of concerns relating to his sickle cell trait and discussions between him and various officers of the police service about that issue. He displayed a poor recollection of details concerning those discussions. He agreed that he was off work from September 2000 until January 2001. He stated that he was concerned to get back to work on a normal basis. Constable Trindall admitted some discussion with other officers about the issue and stated that John Gillett, formerly an officer of the NSW Police Service, asked him for more information about the matter. Constable Trindall confirmed that he prepared the document which is annexure 2 to his first affidavit and provided it to Mr Gillett. Constable Trindall was asked repeatedly whether he was concerned about his health in the performance of police duties. His best recollection was that he prepared the report to Mr Gillett in an effort to obtain assistance from the NSW Police Service in relation to the issue of the impact of the sickle cell trait upon the performance of his duties. Constable Trindall was asked about paragraph 12 of his second affidavit in which he asserted that he was misled in the preparation of this report. He was unable to give a clear example of how he had been misled. In response to a question from me, he said that he did not understand then the consequences of the preparation of the report.
29.Constable Trindall was asked about the imposition of restrictions upon his performance of duties. He said that initially the restrictions were informal and related to avoiding domestic violence situations. Constable Trindall was asked about his attendance upon various medical practitioners for the purposes of clarification of his medical condition and the consideration of restrictions on his employment. Once again, his recollection was poor. He accepted that the restrictions were apparently based upon the medical certificate given by Dr Michael Ling: annexure 6 to Constable Trindall’s first affidavit. He said that he was concerned that it was left up to him to find an alternative medical opinion that might provide support for the lifting of the restrictions. He agreed that he declined an offer of alternative duties and stated that he just wanted to return to his normal duties. He agreed that Superintendent Kyle Stewart went with him to see Dr Ling late in 2001 and agreed that Superintendent Stewart had linked the restrictions upon his employment to Dr Ling’s certificate. Constable Trindall denied that following this visit to Dr Ling, Superintendent Stewart had offered to accompany Constable Trindall to see another specialist. He agreed that there was talk about him seeing another GP and agreed that he did not see any other GP.
30.Constable Trindall was asked about his capacity to participate in the Constable Development Programme. He accepted that there was no formal restriction upon his participation but said that he was under stress and participation was therefore difficult during the period when he was on restricted duties. Constable Trindall has progressed only from probationary constable to constable during the period of his service.
31.Constable Trindall was cross-examined at length about his discussions with Superintendent Stewart and his consultations with Dr Norris. He had difficulty recalling details. He accepted that he had discussed several times with Superintendent Stewart information he had obtained from Dr Felix Konetey-Ahulu (the overseas specialist). He also confirmed discussing Dr Presgrave’s report with Dr Norris. He confirmed that he wrote to Dr Norris on 16 May 2001. He confirmed that he saw Dr Norris on 17 July 2001. Ms Williams also attended. He agreed that it was possible that he said during that consultation that he was still upset by his brother’s death, that he was taking medication and was contemplating resignation. He accepted that he was off work on sick leave on a certificate provided by Dr Ling from 24 June 2001 until approximately 31 August 2001. He had several conversations with Superintendent Stewart and Ms Williams during this period and later. He confirmed that in January 2002 Superintendent Stewart raised the issue of a medical assessment of Constable Trindall with respect to future service. He agreed that an assessment was arranged on or about 13 May 2002 but that he did not attend.
32.Constable Trindall was shown annexures M and N to Superintendent Stewart’s affidavit. He denied ever seeing those documents previously. He confirmed that he was asked to see Professor Hertzberg on or about 26 June 2002 and that he did not attend. Constable Trindall was shown annexure Y to Dr Norris’ affidavit. He said that he had never seen that document before. He accepted that it was probable that in October 2002 Dr Ling contacted him to advise him that he could return to normal duties. He accepted that he was returned to normal duties from around March 2003.
33.Constable Trindall was asked about a workers compensation claim that he made in 2001. He confirmed that his claim was rejected in about September 2001. He made no challenge to that decision. He confirmed that on or about 16 August 2001 he spoke to Ms Williams by telephone and expressed his concerns about Dr Ling’s certificate preventing him from performing normal duties. He agreed that Ms Williams may have suggested that he return to work subject to the existing restrictions. He confirmed that Ms Williams may have referred to the employer’s duty of care. He confirmed that Dr Ling had referred him to a Ms Kelly, a psychologist. He was unsure whether that consultation helped him deal with his stress and anxiety. He agreed it was possible he may have told Ms Williams on 18 August 2001 that he felt better.
34.Under re-examination Constable Trindall stated that his refusal to perform duty at the Sydney Olympics was based upon his concern that proper arrangements had not been made and he was concerned that Inspector Cairncross had, in his view, deleted an e-mail he sent to him requesting that proper arrangements be made. He was asked about his colonoscopy and stated that he was uncomfortable disclosing details as it was a personal matter and he had not discussed the matter properly with his spouse.
35.Constable Trindall was asked about conversations he had with Sergeant Ridley in late 2000 about returning to work. He said that Sergeant Ridley was pleased that Constable Trindall planned to return to work. However, Mr Gillett had required him to take the rest of his leave and had indicated that he was seeking to have Constable Trindall transferred. Constable Trindall said that he spoke to Mr Gillett about this prior to the mediation. He stated that after the mediation, when he was asked to prepare a report about his sickle cell trait, he was suspicious of the motives of his superiors. He stated that when his duties were restricted he refused alternative positions as what he was offered was not a police officer position but a public service position.
36.Constable Trindall stated that it was his idea for Superintendent Stewart to accompany him to see Dr Ling in May 2001. He said he wanted Superintendent Stewart to see what he was up against. He said that he did not go to any other GP because he thought that it would complicate matters. He stated that he was shocked when he saw annexure 11 to his first affidavit, advising him that the police service was considering terminating his employment for unfitness. He stated that the letter was not sent to him but rather was received by his uncle. His uncle had read the letter to him over the telephone.
Professor Mark Hertzberg
37.Professor Mark Hertzberg is a staff specialist in haematology at the Department of Haematology at Westmead Hospital. He provided a report to the NSW Police Service about Constable Trindall on 7 August 2002. He annexes a copy of his report to his affidavit. In preparing the report Professor Hertzberg had access to certificates and reports earlier prepared by Dr R G Gray and Dr Michael Ling. In his report, Professor Hertzberg states that Constable Trindall has sickle cell trait which is characterised by the presence of sickle cell haemoglobin cells. This is a condition occurring in particular in the black African population, including the black Afro American population. Professor Hertzberg notes that Constable Trindall had been a well man apart from an episode of dehydration and derangement of liver function following very strenuous exercise during his police training. Professor Hertzberg also notes that Constable Trindall’s brother Rodney died following a prolonged physical assault by two individuals together with a fall from a balcony in October 2000. The autopsy report indicated the cause of death to have been due to multi organ failure as a consequence of both the injuries sustained as well as complications of sickle cell trait. Professor Hertzberg expresses the opinion that few clinical complications of sickle cell trait have been reported. In rare cases, there have been complications at high altitude or during extreme exercise, such as that experienced by military recruits. Complications can include splenic infarction, however sickle cell trait does not seem to affect exercise performance. Professor Hertzberg distinguishes sickle cell trait from sickle cell disease. The latter is widely recognised as a cause of life threatening illness or death. Professor Hertzberg states in the report that while there have been studies demonstrating an increased risk of sudden death in people with sickle cell trait, it is quite rare and should not be used as a restriction to activity. Furthermore, he states that studies have demonstrated that patients with sickle cell trait have an exercise capacity that is probably normal or near normal.
38.Professor Hertzberg opines that based on facts that are now known, it appears that individuals with sickle cell trait are at a somewhat greater risk than those without the trait when engaged in either very strenuous activities that regularly expose them to hypoxic environments, or that require maximum stamina and endurance at the time of exhaustive muscular activities. Despite the known complications, past experience with discrimination in employment in the health insurance industry in the USA provides reminders that the rare clinical events in sickle cell trait provide no real justification for regarding it as anything but a benign carrier condition. Hence the vast majority of work related activities, including those involved in the normal course of duty of a police officer, can readily be undertaken by affected individuals without any restrictions being placed upon them. Professor Hertzberg concludes that Constable Trindall is not affected by sickle cell trait in any way whatsoever on any daily basis, nor does it cause him any symptoms. From the evidence available, he should not be restricted from undertaking any regular police duty including custodial duties, handling prisoners and intoxicated individuals, and attending at domestic or other violence related calls. He would need to remain well hydrated during any exercise and avoid dehydration due to any medical illness; of course, these would apply to any individual within or without the police service. Moreover, the only activities which should be restricted would include:
(a)moderate exercise at high altitudes, ie greater than 5,000 feet (1,600 metres); or
(b)very strenuous exercise, at similar levels to that which would be encountered in very arduous military exercises or training camps.
39.I permitted Mr Gibian to lead additional oral evidence from Professor Hertzberg. He explained that the difference between sickle cell trait and sickle cell disease is that the trait is inherited from one parent only whereas the disease is inherited from both parents. In other words, with the disease, one has a double dose of the genetic defect. Persons with the disease require regular hospitalisation. The trait rarely has serious manifestations. Professor Hertzberg has never seen a clinical manifestation of a person with the trait.
40.Professor Hertzberg stated that the trait is predominantly found among black Africans but it also occurs in other races, particularly around the Mediterranean. The trait occurs with some frequency among Lebanese people. Professor Hertzberg opined that anyone with an abnormal blood count below 38 per cent is at relatively low risk. Constable Trindall’s abnormal blood count is 36.7 per cent.
41.Under cross-examination, Professor Hertzberg agreed that sickle cell trait is also found among Greeks, Italians and even some Indians. However, he stated that there was no need for all races to be screened for it and doubted that the trait arises spontaneously among diverse populations.
42.Professor Hertzberg was asked whether Constable Trindall might be at risk of suffering health complications if he was subjected to physical trauma, such as during aggressive police work. He had some difficulty with the question because “trauma” covered a very wide range of possibilities. In response to a question from me, Professor Hertzberg opined that it ought to be possible for Constable Trindall to engage in a high speed car chase followed by a chase on foot for half a kilometre followed by a physical altercation with a suspect, in hot weather, without experiencing a complication from his sickle cell trait.
43.Professor Hertzberg was asked to comment on the coroner’s report linking the sickle cell trait to the death of Constable Trindall’s brother. He gave evidence that this was a complex issue and that while he could not rule out sickle cell trait as a factor, he did not necessarily agree that it was a factor in the death of Constable Trindall’s brother.
44.Professor Hertzberg was asked about earlier medical reports concerning the applicant. He accepted that an employer should take note of medically recommended restrictions on employment but added that it was open to an employer to challenge medical opinion that might be wrong. He accepted that Constable Trindall’s sickle cell trait appears to have been a factor in the episode suffered by him during his police training.
45.Under re-examination Professor Hertzberg said that appropriate countermeasures should prevent any recurrence of complications for Constable Trindall. These principally involved ensuring proper hydration and recognition of any symptoms.
Dr Michael Ling
46.Dr Ling is a general practitioner who has treated Constable Trindall since 1997. He deposes that Constable Trindall was referred by him to a haematologist, Dr Peter Presgrave, in March 2001 following the death of Constable Trindall’s brother Rodney in October 2000, and at the suggestion of the Police Medical Officer.
47.Dr Ling’s first affidavit annexes a medical report prepared by him dated 22 April 2004. In that report Dr Ling states twice that he has limited experience in relation to patients with the sickle cell trait. He states that Constable Trindall saw him in early April 2001 with regard to Dr Presgrave’s report and that Constable Trindall stated that the “police department” required a certificate regarding his sickle cell trait and suitable duties. Dr Ling confirms that he provided a medical certificate to Constable Trindall based upon Dr Presgrave’s report and after a telephone consultation with Dr Presgrave. Dr Ling states that Constable Trindall saw him on 12 occasions between June and November 2001 with regard to his work restrictions and the anguish and difficulties he faced. Dr Ling prescribed an anti-depressant, an anti anxiety medication and sleeping pills. He also referred Constable Trindall for counselling.
48.Dr Ling reports that although Constable Trindall was placed on restricted duties he was unable to work for “quite a lot of time during this period” because of “significant anxiety and depression”.
49.Dr Ling states that he advised Constable Trindall to seek further haematologist’s opinions with regard to his sickle cell trait and work restrictions and that he received a report from Professor Hertzberg in September 2002. Dr Ling wrote to Professor Hertzberg on 18 September 2002 seeking to confirm his opinion on Constable Trindall. Dr Ling received a reply from Professor Hertzberg in early October 2002 and forwarded that letter to the Police Service on 11 October 2002, stating that Constable Trindall was able to return to regular police duties.
50.Dr Ling’s letter dated 1 September 2001 to Dr Presgrave is annexed to his second affidavit. In that affidavit Dr Ling also responds to the affidavit of Dr Tom Norris. In addition, Dr Ling provides further detail concerning his conversations with Constable Trindall. He also provides greater detail concerning his consultation with Dr Presgrave prior to issuing his medical certificate. Dr Ling states that he was not aware that it would not be possible for the Police Service to allow Constable Trindall to perform some of his normal operational duties “of general duties policing” and at the same time “guarantee he could avoid severe sudden physical exertion, and domestic and other violent situations”.
51.Dr Ling deposes that he became aware that Constable Trindall had been formally placed on restricted duties in May 2001. He confirms that Constable Trindall complained about the restrictions to him on a number of occasions. Dr Ling deposes that although he provided a medical certificate based upon his consultation with Dr Presgrave, it was up to the Police Service as Constable Trindall’s employer to specify what duties he could or could not do. Dr Ling deposes that, for the most part, his medical certificate was in general terms and he had a limited understanding of the actual duties that Constable Trindall was carrying out at the time the medical certificate was given. Dr Ling also deposes that he had a limited understanding of the extent to which the medical certificate would impact upon Constable Trindall’s ability to carry out his operational duties.
52.Dr Ling deposes that he would have been “more than happy” to discuss the position with Dr Norris. He further deposes that he requested that Dr Presgrave consider lifting the medical restrictions upon Constable Trindall but he did not receive a reply.
53.In his second affidavit, Dr Ling also responds to the second affidavit of Superintendent Stewart. Dr Ling deposes that at the time Superintendent Stewart attended with Constable Trindall he (Dr Ling) did not realise that Superintendent Stewart was anything other than a support person or union delegate. Dr Ling deposes that if he had known that Superintendent Stewart was the local area commander he would have sought his assistance in finding a specialist to provide further medical opinion in relation to Constable Trindall. Dr Ling states that his position was that he could not alter his medical certificate without further advice from a specialist.
54.In cross-examination Dr Ling confirmed that he understood that the certificate he issued was required by Constable Trindall’s employer and that he expected the employer to abide by the certificate. He also accepted that physical exertion was part of the normal duties of a policeman. He further accepted that violence could cause physical trauma. Dr Ling confirmed that he referred Constable Trindall to Dr Lindeman but could not recall whether he discussed Dr Lindeman’s report with Constable Trindall. Dr Ling confirmed that he realised at the time he saw Constable Trindall and Superintendent Stewart that Constable Trindall would remain on restricted duties unless the certificate issued by him was altered. Dr Ling stated that he made an attempt to refer Constable Trindall to a different specialist but the person he selected was semi retired and unavailable. He was not aware of anyone that he could refer Constable Trindall to. Dr Ling denied seeing the email from Dr Felix Konetey-Ahulu. However, he stated that he would have required advice from a NSW registered practitioner before he would have relied upon it. Dr Ling confirmed that he had written to Professor Hertzberg to confirm his opinion in September 2002, after which Dr Ling withdrew his certificate.
55.I asked Dr Ling whether Constable Trindall had originally approached him on his own behalf or on behalf of the NSW Police Service. Dr Ling said the latter. He said he understood that the Police Service wanted to find out what duties Constable Trindall was able to perform. I then asked Dr Ling whether he now accepted that his certificate issued on 9 April 2001 was wrong. He stated that he now thought the certificate was inappropriate. It was based at the time upon a specialist’s report but he now had a better opinion available. In response to a further question from Mr Fernan Dr Ling said that he could not say that his certificate was inappropriate as it was based on an expert opinion.
The respondent’s evidence
56.The respondent relies upon affidavits by Dr Tom Norris filed on 4 June 2004, Mr John Gillett filed on 9 June 2004, Sergeant Kathryn Grace Lang filed on 9 June 2004, Inspector Peter Robert Cairncross filed on 15 June 2004, Sergeant John Ridley, filed on 11 June 2004, Superintendent Kyle Stewart filed on 9 June 2004, Inspector Shane Geoffrey White filed on 10 June 2004, Roslyn Williams filed on 10 June 2004 and Arthur Crellin filed on 21 June 2004. The last three deponents were not required for cross-examination.
Dr Tom Norris
57.Dr Norris deposes that at the relevant time he was employed as a full time senior police medical officer with the NSW Police. He is a registered medical practitioner with a fellowship in general practice and a masters degree in clinical epidemiology. Dr Norris asserts extensive experience in assessing the fitness of operational police officers, in particular through his position giving him an understanding of the inherent requirements of general duties policing and what medical fitness levels are required by a serving police officer to be able to safely perform those inherent requirements.
58.As the senior police medical officer, Dr Norris made determinations as to the suitability and fitness of police officers employed by the NSW Police to perform operational police duties. In that respect he was responsible for maintaining a safe working environment for employees suffering from a disability, their colleagues and members of the public.
59.Dr Norris gives a chronology of the circumstances that led to Constable Trindall being placed on restricted duties from 8 May 2001 until he removed the restrictions on 18 October 2002. Those events began with a letter dated 25 January 2001 from then Superintendent Gillett to Dr Norris enclosing a report dated 24 January 2001 from Constable Trindall. Superintendent Gillett had sought urgent advice from Dr Norris as to any restrictions and the extent of any restrictions necessary in view of the information supplied in the report from Constable Trindall regarding his having the sickle cell trait. Superintendent Gillett indicated that Constable Trindall was then on full general duties which were restricted according to his duty officer’s discretion to avoid physical or confrontational situations. A copy of Superintendent Gillett’s letter is attached to the affidavit.
60.Dr Norris deposes that he replied to then Superintendent Gillett on 22 February 2001 and copied the letter to Constable Trindall. Dr Norris suggested that, in view of Constable Trindall’s concerns and the death of his brother, he needed to have his fitness for police duties clarified as soon as possible by a clinical haematologist. Subsequently, Dr Norris received a report from Dr Peter Presgrave, clinical haematologist dated 31 March 2001. In that report Dr Presgrave recommended avoidance of potential precipitants such as dehydration, heat exposure or physical conditioning or hypoxia and that he was unaware of any further investigations that might be of benefit in determining the risk of any further problems occurring.
61.Dr Norris deposes that he later received a copy of a certificate issued by Dr M Ling. He deposes as to the contents of that certificate. He deposes that on 4 May 2001 he received advice by fax from Kelly Larnach, rehabilitation officer, advising that Constable Trindall had been placed on restricted duties “by Dr Ling”. Subsequently, Dr Norris saw Constable Trindall. Dr Norris deposes that after that consultation he wrote to Superintendent Gillett on 8 July 2001. In that letter he stated that Dr Ling’s restrictions seem to have gone farther than those recommended by Dr Presgrave in his report and did not unfortunately enable the restrictions on Constable Trindall to be lifted. He deposes that if the restrictions had been as per Dr Presgrave’s report, Constable Trindall could have been allowed to return to operational duties at that time as the restrictions could have been complied with in an operational duties situation. His letter to former Superintendent Gillett is attached to his affidavit. The letter foreshadowed the possible need for Constable Trindall to be medically discharged if no long term positions were available to him on the basis of restricted duties. The imposition of restricted duties were set out in that letter.
62.Dr Norris deposes as to further correspondence he received from Constable Trindal dated 16 May 2001 in connection with a further consultation with Dr Presgrave and further recommendations by him. Later, Dr Norris received a report dated 2 July 2001 from Dr Robert Lindeman. Constable Trindall had been referred to Dr Lindeman by Dr Ling.
63.Dr Norris deposes that, following a further request, he reviewed Constable Trindall in Dubbo on 17 July 2001. He deposes that Constable Trindall displayed a dichotomous attitude towards his condition, both wanting to return to operational duties yet at the same time maintaining concerns about his sickle cell trait. Dr Norris then wrote a further report to former Superintendent Gillett in which he advised that it was appropriate to place Constable Trindall on permanent restricted duties. He deposes that this is the standard practice in such situations where the evidence is that the condition or the restrictions or the medical certification from the treating doctors associated with the condition are unlikely to change.
64.Dr Norris deposes as to his receipt of the emails between Constable Trindall and Dr Felix Konetey-Ahulu and a memorandum he received from Superintendent Kyle Stewart in which Superintendent Stewart sought a further review by Dr Norris. Dr Norris deposes that he met with Superintendent Stewart on 21 February 2002 and expressed agreement in principle with the opinion of Dr Konetey-Ahulu but added that he was not in a position to remove the restrictions which had been placed on Constable Trindall as those had been placed by his GP as a result of the opinions of the two haematologists seen by Constable Trindall. Superintendent Stewart sought an independent review of Constable Trindall’s fitness by further letter dated 27 February 2002. In response, Dr Norris wrote a request to Health Quest asking for a review of Constable Trindall’s fitness for operational duties. He deposes that this was not a submission for medical discharge.
65.Dr Norris then deposes as to communications between him and others in the second half of 2002 which led to his examination of the report of Associate Professor Mark Hertzberg. He deposes that Dr Ling removed his restrictions by letter dated 11 October 2002 and that on 18 October 2002 he (Dr Norris) cleared Constable Trindall to return to operational duties.
66.Dr Norris deposes that it was because of Constable Trindall’s concern about the trait that he was requested to consult a specialist and that at the time Dr Norris hoped that this would alleviate Constable Trindall’s concern and allow him to return to full duties. He deposes that:
unfortunately the opposite happened and the restrictions placed on Constable Trindall’s duties by Dr Ling, Constable Trindall’s GP, and as a result of the advice Dr Ling received from the haematologist Dr Presgrave made it impossible for Constable Trindall to be cleared to return to operational duties. I simply put the restrictions into the standard form used for all police officers placed on restricted duties, in concurrence with Dr Ling’s certification. These restrictions on duties were designed to ensure that police officers who are not fit for operational duties are not recognisable by their uniform in public as police officers, where they might be expected to respond to an incident or deal with violent offenders in a unfit state and without appointments or support.
67.Dr Norris further deposes that:
Although I did not personally agree that these restrictions were reasonable or necessary based on my own reading in this area, it would not have been ethical practice to go against the certification of the treating doctor and ignore the restrictions listed in the certification. The certification of Dr Ling was certainly not just a recommendation as is stated by Constable Trindall in his affidavit.
68.Dr Norris further deposes that even when the report was received from a third haematologist who stated that the restrictions were not necessary he (Dr Norris) was unable to lift the restrictions until Dr Ling agreed to do so. Dr Norris deposes that he followed all the normal protocols in placing Constable Trindall on restricted duties. An employee is placed on restricted duties when it is believed either by the PMO and/or by the treating doctor that the officer cannot safely perform all the requirements of operational duties because of a medical condition. This could mean a concern for the safety of the officer themselves or concern for the safety of others, such as other police officers or the public. When this is likely to be more than a temporary measure the PMO may advise the officer to seek a specialist medical opinion before making a decision about whether the restrictions are likely to be permanent. This is generally the responsibility of the officer to arrange in conjunction with his treating doctors if the condition is a non-work related one as it was in the case of Constable Trindall. Dr Norris deposes that the PMO would not overrule the certification of the treating doctor unless that certification put in jeopardy the health or safety of others, eg where the treating doctor was recommending that the officer be given access to his firearms and the officer was suicidal. This was not the situation for Constable Trindall.
69.Dr Norris also comments upon various assertions made in Constable Trindall’s first affidavit.
70.In additional examination in chief undertaken by leave Dr Norris explained the role of Health Quest as compared to the role of the Police Medical Officer (PMO). He also explained by reference to annexure K to his affidavit what he described as a standard set of restraints issued where officers were placed on restricted duties. He noted that the restraints imposed upon Constable Trindall were standard with the exception of those appearing on page 2 of annexure K which were special restraints derived from the certificate of Dr Ling. Likewise, Dr Norris stated that the restraints appearing at annexure P to his affidavit were standard restrictions apart from the last. Dr Norris also clarified paragraphs 13 and 20 of his affidavit. Dr Norris stated that the conversation referred to in paragraph 13 was the first conversation he had with Constable Trindall concerning his sickle cell trait. The conversation referred to at paragraph 20 was a subsequent conversation. Dr Norris said that in both conversations Constable Trindall expressed concern about the impact of the sickle cell trait upon his performance of duties.
71.In cross-examination Dr Norris explained that Health Quest only becomes involves in the assessment of a police officer where there was a question concerning their ability to continue service within the police force. General questions concerning fitness for duty were dealt with by the PMO. Dr Norris stated that in general terms he would approach the issue of the ability of an officer to perform duty with a medical condition by reference to opinions from treating medical specialists. Ordinarily, if the officer’s treating doctor certified that the officer was not fit to perform certain duties that would be the end of the matter. In other words the PMO would simply act upon the certificate. When pressed about cases of doubt Dr Norris stated that a certificate would not necessarily be conclusive and that it was open to the PMO to seek clarification in order to interpret a certificate.
72.Dr Norris was asked whether he agreed with the conclusions by Professor Hertzberg at annexure W to his affidavit. He said that he did and that he had always held that view. Dr Norris denied that he had always had the knowledge he refers to in paragraphs 32 and 33 of his affidavit. He stated that he gained that knowledge over time. Dr Norris confirmed that Constable Trindall had originally been assessed as fit for duties when he joined the Police Service.
73.Dr Norris was asked about his correspondence with Superintendent Gillett. He stated that he felt that there was a need to deal with the issue raised by Superintendent Gillett quickly. Dr Norris noted that at that time Constable Trindall was on informal restricted duties at his duty officer’s discretion. He agreed to that course.
74.Dr Norris confirmed that he had received and reviewed the report by Dr Presgrave. He stated that in the light of that report he had thought that Constable Trindall could return to full duties. He was asked whether the risk of hypoxia might prevent Constable Trindall performing full duties. He stated that one could not rule out the risk but as a general proposition that risk would not prevent an officer with sickle cell trait not performing full duties. Dr Norris stated that he did not think he expressed that view to Superintendent Gillett at the time he corresponded with him in early 2001.
75.Dr Norris was asked about paragraph 13 of his affidavit. Dr Norris stated that it was and remained his view that the restrictions contained in Dr Ling’s certificate went further than what was necessarily called for in Dr Presgrave’s report. He was asked whether this placed Dr Ling’s certificate in an uncertain category. Dr Norris stated that he thought Dr Ling’s certificate was clear and necessitated the work restrictions imposed as a result of it. He stated that he did not contact Dr Ling to discuss the certificate. Neither did he contact Dr Pregrave to discuss his report. Dr Norris stated that it was a matter for Constable Trindall to take up himself with Dr Ling. He stated that the Police Service is concerned to maintain the safety of its officers and others. The situation might well have been different if Dr Ling’s certificate had said that Constable Trindall was fit to perform all his duties and there was doubt about the reliability of that certificate.
76.Dr Norris was referred to the clinical notes at annexure J to his affidavit. He stated that this was a statement by him that some further opinion was needed at the time he made those notes. The notes are dated 7 May 2001. In those notes Dr Norris states that the plan was for Constable Trindall to continue on restricted duties pending any further opinion being obtained. Dr Norris stated that he was influenced in his decision not to further intervene when he found out that Dr Ling had spoken to Dr Presgrave before he issued his certificate.
77.Dr Norris confirmed that he became aware that Constable Trindall wanted to return to full operational duties and he was also aware that as a result of him being on restricted duties, if no alternative duties could be found for him he might be referred to Health Quest and ultimately discharged from the Police Service. He confirmed that annexure K to his affidavit establishes that.
78.Dr Norris was asked about the certificate issued by Dr Ling. He agreed that the certificate stated that Constable Trindall was fit and healthy but noted that the certificate also stated that as a precaution certain steps should be taken. Dr Norris said that given the terms of the certificate it was not open to the PMO to take the risk of returning Constable Trindall to full operational duties. The certificate implied restrictions that were subsequently imposed.
79.I asked Dr Norris what he thought were the critical words in Dr Ling’s certificate that necessitated formal restrictions. He responded that it was the reference by Dr Ling to the need for Constable Trindall to avoid domestic and other violent situations. He stated that the first six restrictions contained in annexure K were standard restrictions imposed by him that necessarily followed from the imposition of restricted duties. Dr Norris agreed that he had confirmed in his letter at annexure A to his affidavit that he supported the informal restrictions applicable from January 2001. He noted that these were not medical restrictions. They were informal restrictions put in place pending the receipt of reliable medical opinion. Dr Norris was referred to annexure L to his affidavit and noted from that annexure that Constable Trindall had agreed to him talking to Dr Presgrave or Dr Ling. In Dr Norris’ view, however, there was no point in doing so. Dr Norris said that as a result of his discussion with Constable Trindall he formed the view that Constable Trindall was concerned about his sickle cell trait but wanted to go back to normal duties. The restrictions Dr Ling implied in his certificate meant that Constable Trindall was unfit for full operational duties because violent situations could not be avoided if he had been on full operational duties.
80.Dr Norris was taken to Dr Lindeman’s report at annexure N to his affidavit. In Dr Norris’ opinion that report went further than the report by Dr Presgrave because he referred to the additional issue of trauma. He agreed that Dr Lindeman’s report did not on its face call for the imposition of restricted duties. He agreed that annexure P (his memorandum to Superintendent Gillett dated 1 August 2001) placed Constable Trindall permanently on restricted duties. Dr Norris said that it was his personal view that the restrictions were not necessary.
81.Dr Norris was asked about the opinion of Dr Felix Konetey-Ahulu. He said that he could not rely on that opinion because Dr Konetey-Ahulu was an overseas practitioner who was not treating Constable Trindall.
82.I asked Dr Norris why, given that the thought the restrictions imposed as a result of Dr Ling’s certificate were unnecessary, he could not have continued to rely on the informal restrictions which had been put in place prior to Dr Ling giving his certificate. Dr Norris stated that it was not open to the PMO to accept discretionary restrictions once a certificate had been received from a treating practitioner which pointed to unfitness to perform certain or all duties.
83.Dr Norris was taken to annexure R to his affidavit. He agreed that Superintendent Stewart was seeking his views on the issue of Constable Trindall’s duties in the light of his sickle cell trait. He confirmed that he did not reply prior to sending his letter to Superintendent Stewart dated 22 February 2002 (annexure U to his affidavit). He agreed that that was a letter of general importance. Dr Norris added that before he could reply to Superintendent Stewart the Superintendent had requested that Constable Trindall be referred to Health Quest. He added that even if Health Quest had stated that Constable Trindall was fit for normal duties the PMO would not have acted upon that opinion but would have referred Constable Trindall back to his treating doctor.
84.Dr Norris was taken to annexure V to his affidavit. He stated that he was not, in that memorandum, recommending that Constable Trindall be discharged. He said that there was a recommendation for discharge emanating from the Police Service generally, not from the PMO.
85.In re-examination Dr Norris explained further the restrictions imposed in the document forming annexure K to his affidavit. He explained that “appointments” refers to the equipment belt and equipment in it. He explained that the restrictions on performing custodial duties, wearing uniform and driving a marked vehicle were intended to protect the officer from being drawn into situations posing a health risk. Dr Norris also stated that he considered the significance of Dr Lindeman’s report was that it confirmed Dr Presgrave’s opinion and that it did not call for removal of Dr Ling’s certificate. He stated that Constable Trindall had himself expressed a concern about becoming involved in violent situations and a concern that he might suffer the same fate as his brother. He stated that there was at all times an expectation that the PMO would comply with the import of Dr Ling’s certificate.
Inspector Peter Robert Cairncross
86.Inspector Cairncross is currently the human resources manager for the western police region. He has held that position since 2000. He has been a member of the NSW Police Service for 29 years. He deposes that he is an inspector of police and currently the human resources manager for all 11 local area commands within the western region of New South Wales. He has held that position since 2000. Inspector Cairncross deposes as to his involvement with the issues concerning Constable Trindall commencing in late 2000. He deposes that he became aware of Constable Trindall’s condition from his uncle Gary Trindall. Inspector Cairncross informed then Superintendent Gillett of the issues on the basis of his understanding following conversations with Gary Trindall. Inspector Cairncross also comments upon the first affidavit of Constable Trindall.
87.I permitted additional examination-in-chief orally of Inspector Cairncross. He gave evidence concerning the perennial risk of violence faced by serving police officers.
88.In cross-examination Inspector Cairncross agreed that his nickname is “Cranky”. He said this referred to a play on words with his surname rather than his temperament. He gave evidence concerning the transfer of Constable Trindall to Narrabri. He stated that this was not an overstrength transfer because Constable Trindall was formerly held against a position at the Moree station. He considered that he had gone out of his way to assist Constable Trindall in obtaining that transfer. He stated that Constable Trindall had then acted inappropriately in refusing duty at the 2000 Olympics and in his manner and language in dealing with that issue in conversation with him. He considered that the actions of Constable Trindall merited disciplinary action.
89.Inspector Cairncross stated that he became aware of Constable Trindall’s sickle cell trait from Constable Trindall’s uncle Gary and he felt obliged to report this condition after three conversations with Gary Trindall. Inspector Cairncross said that he raised the issue with then Superintendent Gillett on a confidential basis. Gary Trindall said Constable Trindall should raise the issue with his command.
90.Inspector Cairncross was shown exhibit A4. He agreed that the document attributed to him a view concerning the possible resignation of Constable Trindall from the Police Service due to a medical condition. Inspector Cairncross said that this was news to him. He acknowledged that he had discussed Constable Trindall’s condition with then Superintendent Gillett.
Sergeant Katherine Grace Lang
91.Sergeant Lang is employed in the field support unit at the NSW Police College at Goulburn. She deposes as to her knowledge as subject co‑ordinator within the constable development programme of the requirements of the programme and the involvement in that programme of Constable Trindall.
92.I permitted Mr Fernan to lead additional oral evidence from Sergeant Lang. She gave additional evidence concerning her employment history and her knowledge of Constable Trindall’s enrolment in the constable development programme. She gave evidence that the record of Constable Trindall’s enrolment indicated that he had submitted some material in relation to one subject which he failed and that he had not submitted any material in relation to any other subject. He had passed no subjects. Sergeant Lang stated that annexures D and E to her affidavits are form letters, being standard form letters which were apparently sent to Constable Trindall. She stated that there was no record of any attempt by Constable Trindall to re-enrol in the constable development programme.
93.In cross-examination Sergeant Lang stated that she had no personal involvement with Constable Trindall. Her knowledge was derived entirely from police records. She also agreed that the record appearing at annexure B to her affidavit stated that it could not be used as a legal or valid document. She stated that the form letters at annexures D and E were probably sent to Constable Trindall at the address identified at annexure B. Sergeant Lang stated that students wishing to undertake the constable development programme now must pay $650 per subject for six subjects.
John Gillett
94.Mr John Gillett is a retired NSW police officer. At the relevant time he was patrol commander/local area commander at Moree. He deposes as to his career in the NSW Police Service and his dealings with Constable Trindall and other officers about Constable Trindall. He deposes as to the circumstances of Constable Trindall’s transfer to the Narrabri police station in his Barwon command. He further deposes as to the conflict that arose concerning the performance of duty by Constable Trindall at the Sydney Olympics.
95.Mr Gillett deposes that he did not know that Constable Trindall had the sickle cell trait when he transferred to the Barwon local area command. He deposes that he became aware of Constable Trindall having the condition in the latter part of January 2001. He says he gained this information from Constable Trindall himself. In response, Mr Gillett requested Constable Trindall to submit a comprehensive report setting out his knowledge and research into the disease including his own history relevant to the condition. The report is annexed to Mr Gillett’s affidavit. Mr Gillett forwarded the report to the PMO. He also spoke to Dr Norris by telephone. Mr Gillett deposes that Dr Norris agreed with the flexible and informal limitations that Mr Gillett had imposed pending further medical advice. He also conveyed to Constable Trindall Dr Norris’ request that he obtain a referral to a specialist haematologist for advice about appropriate work restrictions.
96.Mr Gillett also deposes that Constable Trindall declined counselling assistance and was not subject to any limitations in respect to promotional opportunities.
97.In oral examination-in-chief Mr Gillett confirmed that he was employed with the NSW Police between 1963 and 13 July 2001. His last working day was 4 May 2001. He gave evidence of his experience of the risk of violence faced by police officers performing normal duties. He also gave evidence about Constable Trindall’s disclosure of his sickle cell trait in his office in January 2001. Mr Gillett said that he recalls that Constable Trindall expressed concern for his own safety. Mr Gillett had heard of the condition previously. He stated that between that time and the day he ceased duties on 4 May 2001 he spoke to Constable Trindall several times about his condition. Mr Gillett also gave evidence describing the Barwon area command and the station at Narrabri.
98.In cross-examination Mr Gillett stated that Constable Trindall’s transfer to Narrabri was an “overstrength transfer”. He thought that he had gone out of his way to assist Constable Trindall. He said that Constable Trindall’s Aboriginality was a part of the reason. He stated that Constable Trindall wanted to live with his wife who was then located at Narrabri. Mr Gillett said that several officers sought to be excluded from Olympic duty in 2000. There had been a call for volunteers but insufficient officers volunteered. Names were then drawn out of a hat. In order to complete the complement a few officers were directly nominated. Constable Trindall was one of those.
99.Mr Gillett was asked about the handwriting which is partly photocopied at the bottom of annexure A to his affidavit. He stated that the words appear in typescript at note 4 on annexure B. He confirmed that a Mr Coates had agreed to undertake Constable Trindall’s Olympic duty for him and that this initially had been agreed. The agreement was notified to Constable Trindall in mid July 2000 but subsequently Inspector Cairncross changed his mind. This was apparently on the basis that the selection of Mr Coates was rejected by the Police Olympic Command. Mr Gillett then confirmed that Constable Trindall refused a direction to perform duty at the Olympics. He confirmed that he was in Bathurst on 8 September 2000 when Superintendent Stewart told him that he would issue a written direction to Constable Trindall.
100.Mr Gillett was asked about paragraph 13 of his affidavit. He stated that he had prepared a contemporaneous note of the conversation. This had not been annexed to his affidavit. Mr Gillett said that the note had only recently been found. He had photocopied the note from his personal diary and left it among papers in a folder at the Moree station. The folder had recently been found. He was asked to produce his diary notes and did so: exhibit A6. The diary note relates not to the interview referred to in paragraph 13 of Mr Gillett’s affidavit but rather to a telephone conversation between him and Constable Trindall on 20 September 2000. According to the diary note Constable Trindall in that conversation said he was sorry for the way that he “carried on” on 11 September 2000 and sought to explain the medical reasons he did not wish to attend duty at the Olympics. According to the file note Constable Trindall stated that he just wanted to do his normal job and that he was concerned that something might occur during the course of duties that might cause a life threatening situation for him. Mr Gillett records himself speaking about the possible restriction of Constable Trindall’s duties. The import of the discussion was that in the light of Constable Trindall’s concerns about his health he might be restricted to station duties.
101.Mr Gillett was asked whether he had spoken to Superintendent Stewart about the folder of documents in which the copy of the file note was contained. He said that he had asked Superintendent Stewart to try and locate the documents at the Moree station. This had occurred about two months prior to 11 August 2004. Mr Gillett said that he had spoken to Superintendent Stewart previously when the legal proceedings first arose and suggested that he look for the folder. He had discussed the proceedings on a number of occasions with Superintendent Stewart. They had discussed the sequence of events that they could recall with specific reference to dates and conversations. Mr Gillett confirmed that he had discussed his recollections with Superintendent Stewart prior to preparing his affidavit. He stated that paragraph 13 of his affidavit is based upon his own memory and his discussion of his recollections with Superintendent Stewart.
102.Mr Gillett stated that in the interview on 11 September 2000 Constable Trindall was reluctant to discuss his colonoscopy and he had used strong language. However, he denied using offensive language himself. Following that interview Mr Gillett thought that disciplinary action was appropriate and around 20 September 2000 he declined to allow Constable Trindall to return to the workplace except on restricted duties. He agreed that he had raised the issue of possible dismissal with Constable Trindall at the interview on 11 September 2000 but stated that such a penalty, while a possible outcome, was probably a bit extreme. Mr Gillett said that his understanding of the telephone conversation that he had with Constable Trindall on 20 September 2000 was that while his doctor had certified him as fit for duty he had a family history of bowel cancer and was concerned to obtain a colonoscopy to clear up the issue. He also stated that he recalled that Constable Trindall was unwilling to disclose some medical information to him. Constable Trindall did not say that he feared that he might have bowel cancer. Mr Gillett denied that the imposition of restricted duties was a disciplinary measure. He denied forming any view that he could not work with Constable Trindall. He could not recall whether he discussed disciplinary action with Inspector Cairncross.
103.Mr Gillett was shown exhibit A4. He confirmed that the reference to “Cranky” was a reference to Inspector Cairncross but said that the statement was not intended to be a statement of Inspector Cairncross considering the possibility of Constable Trindall being retired on medical grounds, but rather that Inspector Cairncross had told him that he believed that Constable Trindall was considering that option himself.
104.Mr Gillett was asked when he first became aware of Constable Trindall’s sickle cell trait. He said that this was when Constable Trindall came to his office with Sergeant Ridley on 21 or 22 January 2001. This followed the mediation. He said that previously Inspector Cairncross had sent an email referring to Constable Trindall having a “medical condition” but he did not elaborate. Mr Gillett said that he prepared no diary note of the meeting with Constable Trindall on 21 or 22 January. He stated that he discussed the issue with Sergeant Ridley after the commencement of the present court proceedings. He recalled that he had directed Constable Trindall to submit a report concerning his sickle cell trait. He confirmed that Constable Trindall had asked him what to put in the report and he had told him to report the information that he was aware of and set out his concerns for his safety. He stated that the email he had received from Inspector Cairncross had restricted Constable Trindall to station duties for medical reasons but that he had eased the restrictions somewhat. There had previously been unrelated restrictions in place.
105.In re-examination Mr Gillett said that he had eased the restrictions in an attempt to be fair to Constable Trindall.
Sergeant John Ridley
106.Sergeant Ridley is located in the Barwon local area command at Moree with the NSW Police Service. He has been a member of the police for 21 years. He deposes as to his service history in the NSW Police Service and to his dealings with Constable Trindall commencing in late October 2000. These related to issues concerning the performance of duty by Constable Trindall at the 2000 Olympics and issues concerning the sickle cell trait that Constable Trindall is said to have confided in Sergeant Ridley. Sergeant Ridley also comments upon matters contained in Constable Trindall’s first affidavit.
107.In additional oral examination in chief Sergeant Ridley stated that annexure A to his affidavit is a contemporaneous diary note concerning a conversation that he had had with Constable Trindall on 5 January 2001 concerning Constable Trindall’s sickle cell trait and Constable Trindall’s desire to return to work. The note records Sergeant Ridley saying that Constable Trindall could return to perform other duties and Sergeant Ridley agreed to speak to Doug Graham about the issue. Constable Trindall referred to his brother’s death and the attack that he suffered during police training. The conversation lasted about one and a half hours. Sergeant Ridley said that Constable Trindall was concerned about his own welfare and what had happened to his brother. Sergeant Ridley also gave evidence in chief about the risk of violence faced by police and the discussion during a car trip to Moree to attend an interview with then Superintendent Gillett.
108.In cross-examination Sergeant Ridley stated that he had not worked with Constable Trindall before the second half of 2000 and that they did not have a close personal relationship. They had a normal working relationship. He did not regard Constable Trindall as a person to confide personal matters in. He stated that he was interested in having Constable Trindall return to work after he took leave in late 2000 but could not recall discussing the issue with Mr Gillett. He recalled that Mr Gillett told him on 5 January 2001 to inform Constable Trindall that he could return to work on restricted station duties. He confirmed that Constable Trindall had asked to return to work in late November 2000 and that he (Sergeant Ridley) was happy to have him back but this did not occur. He said that he did not pursue the matter further as there was an investigation process and mediation underway. He did not put Constable Trindall on a work roster at the time because he was not instructed to. He conceded that he was not instructed not to.
109.Sergeant Ridley denied discussing his evidence at any time since the commencement of the proceedings with Mr Gillett. In that he contradicted the evidence of Mr Gillett. He also denied discussing his evidence with Superintendent Stewart. He denied discussing the death of Constable Trindall’s brother with anyone other than Constable Trindall.
110.Sergeant Ridley was asked why he prepared the diary note forming annexure A to his affidavit. He said that this was because he felt that the conversation was important and it had been a long one. He thought the conversation was “quite unique”. Sergeant Ridley agreed that the words attributed to Constable Trindall in paragraph 13 of his affidavit do not appear in the diary note. He denied a suggestion that those words were not said.
111.Sergeant Ridley also stated that he recalled the conversation that he had with Constable Trindall a few days after 5 January 2001 in the car en route to Moree for Constable Trindall to see Mr Gillett. He agreed that he made no record of that conversation in his diary.
145.There is some force in both submissions and in reality not much between them. Mr Fernan concentrates on Constable Trindall’s concern about his own condition whereas Mr Gibian concentrates on a hypothetical comparator without reference to any such concern. There is overwhelming evidence that Constable Trindall was at the relevant time concerned about the possible consequences of his sickle cell trait and expressed that concern to others. In my view, the health concern of Constable Trindall should be reflected in the definition of the comparator. So should the absence of the sickle cell trait and the general state of health of the comparator, including the risk (albeit small) of a similar risk of injury arising. Upon this basis the appropriate hypothetical comparator is:
(a) a New South Wales police officer without the sickle cell trait;
(b) who is generally healthy but who has concerns about his health;
(c)who has a low risk of injury of a similar nature to that of a person with the sickle cell trait and who should take reasonable precautions to avoid that risk of injury.
146.Mr Fernan submits that the NSW Police Service would have treated the hypothetical comparator the same as Constable Trindall was treated in circumstances that are the same or not materially different. Simply put, Mr Fernan submits that the work restrictions imposed upon Constable Trindall came about because Constable Trindall himself raised concerns about his health which reasonably required a medical assessment and the outcome of that medical assessment compelled the imposition of the restrictions. On the other hand, Mr Gibian submits that the work restrictions imposed upon Constable Trindall were manifestly excessive and unnecessary. He submits that the work restrictions were imposed at the instigation of the NSW Police Service itself and were not compelled by the medical opinion or any concern expressed by Constable Trindall. He further submits that there was a connection between the imposition of the work conditions and the disciplinary process which flowed from the refusal by Constable Trindall to perform duty at the Sydney Olympics. Mr Gibian submits that the NSW Police Service took advantage of the disclosures by Constable Trindall or about him concerning his condition because of Constable Trindall’s behaviour concerning his refusal to perform duty at the Olympics.
147.A substantial amount of evidence was given about the events concerning Constable Trindall’s refusal to perform duty at the Olympics and the disciplinary process which followed, as well as alleged disclosures made by Constable Trindall to his fellow officers about his medical condition. The evidence concerning Constable Trindall’s refusal to perform duty at the Olympics and the disciplinary process is relevant by way of background and to provide a complete understanding of the state of mind of the various persons relevant to these proceedings. Constable Trindall did make some disclosures about his sickle cell trait in January 2001 at the time the disciplinary process was resolved. Important disclosures had previously been made by his uncle. Constable Trindall was understandably concerned about his condition following the death of his brother. The evidence concerning precisely what disclosures were made by Constable Trindall, when and to whom, is disputed. Detailed evidence of disclosures made by Constable Trindall was given by Sergeant Ridley (who was promoted to the rank of Inspector following the trial). Regrettably, I do not regard that evidence as reliable for the reasons given by Mr Gibian in paragraph 4 of his written submissions in reply. In addition, I consider that Inspector Ridley’s evidence is put into doubt by him discussing his evidence with Mr Gillett, and then denying under oath that he did so. Mr Gillett freely admitted the discussion and I prefer his evidence.
148.Nevertheless, I accept that Constable Trindall was concerned about his condition following the death of his brother and shared his concerns with fellow officers. It is clear enough from the evidence of Constable Trindall himself, as well as from the evidence of Mr Gillett and Inspector Cairncross, that following disclosures by Constable Trindall’s uncle, Constable Trindall made his own disclosure of his condition to Mr Gillett which put in train a course of action that led ultimately to the permanent imposition of work restrictions upon Constable Trindall.
149.I accept generally the submissions of Mr Fernan concerning the absence of any “conspiracy” in the NSW Police Service relating to the imposition of the work restrictions. There is a coincidence of time in terms of the resolution of the disciplinary process and the instigation of the process leading to the imposition of the work restrictions. They were, however, separate processes. The police witnesses all vigorously denied pursuing the imposition of work restrictions as a result of any animosity towards Constable Trindall. Constable Trindall himself was concerned that there might be some sort of “payback” involved but it was no more than a general concern. I find that there is no persuasive evidence that the work restrictions imposed on Constable Trindall were imposed because of any animosity towards him within the NSW Police Service or for any disciplinary purpose. I find that the work restrictions were imposed because of Constable Trindall’s disability and for no other reason. I should add that if I were wrong in that finding there would be a real issue whether a claim of direct disability discrimination could be made out. In determining whether there has been discrimination “on the ground of” the alleged victim’s disability it is necessary to consider why the discriminator acted as he or she did, but it is not necessary for the discriminator to have acted with a discriminatory motive. The focus must be on the “real reason” for the act: Forbes v Australian Federal Police [2003] FCAFC 95 at [63]. If the “real reason” for the imposition of the work restrictions was not Constable Trindall’s disability but an unrelated act of animosity, revenge, or discipline then, while Constable Trindall’s claim may be actionable in another forum, it would not be actionable in this Court under the DDA and the HREOC Act.
150.The real issue to resolve is whether Constable Trindall was treated less favourably than the hypothetical comparator would have been treated in circumstances that were the same or not materially different. In resolving that issue it is necessary to consider the steps that led to the introduction of the conditions and the nature and purpose of those restrictions.
151.The initial restrictions imposed by Mr Gillett were a practical and reasonable response to the matters revealed by or about Constable Trindall. As a result of the matters revealed to him, Mr Gillett sought and got from Constable Trindall a report as to his understanding of his condition. That report asserted that the sickle cell trait may have been a factor in the death of Constable Trindall’s brother and that Constable Trindall therefore had a concern in regard to his attendance at domestic violence or other volatile situations. Mr Gillett sensibly left Constable Trindall on full general duties to be restricted only in accordance with his duty officer’s discretion to avoid physical or confrontational situations. This was a temporary expedient pending a proper and reliable medical assessment of Constable Trindall and required the exercise of common sense. The response by Mr Gillett to the information given to him was reasonable and commensurate with the risk revealed. The PMO (Dr Norris) supported that approach. I have no reason to believe that Mr Gillett would have acted differently if similar concerns had been raised by the hypothetical comparator. Common sense precautions needed to be taken pending a proper medical assessment. There was no discrimination in the initial imposition of informal conditions by Mr Gillett in January 2001.
152.As noted in paragraph 56 of Mr Fernan’s written submissions there appears to be a little confusion as to what occurred after 24 January 2001. It appears that Mr Gillett imposed his flexible conditions before he received Constable Trindall’s report. I do not think it really matters. Mr Gillett was aware of Constable Trindall’s concerns following a meeting with him and those concerns were confirmed in the written report. Whether Mr Gillett’s initial restrictions stemmed from the oral briefing or the written report, they were reasonable and justified and not discriminatory. I find that he would have acted in the same way had similar issues been raised by the hypothetical comparator.
153.After Mr Gillett notified the PMO of the situation Dr Norris, in his letter dated 22 February 2001, expressed agreement with the continuance of the flexible and informal restrictions until he had had the opportunity to review a haematologist’s report that he had sought. Dr Norris said in that letter:
[Constable Trindall] needs to be directed by the local area command to be reviewed by and to discuss the situation with his local general practitioner as soon as possible to arrange referral to a haematologist and to see whether his general practitioner is happy with his current restrictions on his duties.
154.It is apparent that Dr Norris was seeking two things. First, he was seeking a reliable medical opinion from an appropriately qualified specialist. Secondly, he was seeking certification from Constable Trindall’s treating GP whether the work restrictions that had been put in place were appropriate.
155.In accordance with Dr Norris’ request, Constable Trindall obtained a referral from Dr Ling to Dr Presgrave. Dr Presgrave’s report stated that there was some risk of Constable Trindall suffering a sickling episode and that he should avoid potential precipitants such as dehydration, heat exposure or physical conditioning. Importantly, Dr Presgrave did not point to any need for Constable Trindall to avoid violent or confrontational situations. The thrust of his report was that Constable Trindall should drink plenty of liquids and avoid heat exposure or extreme physical exercise. Dr Presgrave did not consider that any further medical investigation would be worthwhile.
156.Dr Presgrave’s report was directed to Dr Ling and Dr Ling discussed the report with Dr Presgrave. Dr Ling understood that his task was to review the work restrictions to which Constable Trindall was subject and to provide a certificate as to his fitness to perform duty in the light of the opinion of Dr Presgrave. The certificate issued by Dr Ling on 9 April 2001 is an important document. In it Dr Ling relevantly stated:
(a) Constable Trindall has the sickle cell trait;
(b) he is fit and healthy and has no chronic symptoms;
(c)it is necessary for him to avoid potential precipitants such as dehydration, heat stress, severe sudden physical exertion, domestic and other violent situations.
157.The reference in the certificate to dehydration, heat stress and severe sudden physical exertion comes from Dr Presgrave’s report. The reference to domestic and other violent situations does not. Where else could it come from? In my view, the answer lies in the initial restrictions imposed upon Constable Trindall by Mr Gillett. Dr Ling had been tasked by Dr Norris to review those restrictions. He would undoubtedly have been told about them by Constable Trindall. Dr Ling gave evidence that he was aware that restrictions had been impsosed. Dr Norris had wanted to know if Dr Ling was “happy” with the then current restrictions. The certificate issued by Dr Ling indicated quite clearly in my view that he was “happy” with the informal restrictions imposed by Mr Gillett. The statement that Constable Trindall had the trait but was fit and healthy and had no chronic symptoms was consistent with the maintenance of Constable Trindall on normal operational duties. The recommendation that Constable Trindall avoid domestic and other violent situations was entirely consistent with the informal restriction imposed by Mr Gillett at the duty officer’s discretion. In addition, based upon the opinion of Dr Presgrave, Dr Ling recommended that Constable Trindall avoid dehydration, heat stress and severe sudden physical exertion.
158.The more severe and formal restrictions imposed upon Constable Trindall are set out in the letter dated 8 May 2001 from Dr Norris to Mr Gillett. This followed a consultation between Dr Norris and Constable Trindall the previous day. Dr Norris states that Constable Trindall told him in that consultation that he proposed to continue on restricted duties. The reference of course could only have been to the informal restrictions imposed by Mr Gillett. In his letter, Dr Norris states that:
Dr Ling’s restrictions, which seem to have gone further than those recommended by Dr Presgrave, mean that Constable Trindall has now been placed on permanent restricted duties by his treating doctors.
159.In making that statement, Dr Norris seems to have forgotten what he asked of Dr Ling. He sought from Dr Ling and received from Dr Ling an expression of agreement with the informal and flexible restrictions that had been imposed by Mr Gillett. Dr Ling’s certificate did go further than the report of Dr Presgrave but only to the extent of reciting the restrictions that had been put in place subject to the duty officer’s discretion.
160.In his affidavit Dr Norris stated that he felt that Dr Ling’s “restrictions” were “excessively cautious given that Constable Trindall had already served for six years as an operational police officer” but said that he was obliged to abide by the medical certificate by Dr Ling. He stated that it was not possible to allow Constable Trindall to perform his normal operational duties and at the same time guarantee that he could avoid sudden physical exertion, domestic or other violent situations which are a daily occurrence in operational policing. However, Dr Norris had already expressed agreement with Constable Trindall being left on normal operational duties subject to his duty officer’s discretion to avoid such situations since January 2001. In cross-examination Dr Norris said that this was merely a temporary expedient pending a reliable medical assessment. If that were the case, why did Dr Norris want to know if Dr Ling was “happy” with those “temporary” restrictions? The effect of Dr Ling’s certificate was that he was “happy” with those restrictions, subject to the additional precautions flowing from the report of Dr Presgrave. It was Dr Norris’ evidence that Constable Trindall could have remained on normal operational duties based upon the report of Dr Presgrave.
161.It is unfortunate that Dr Norris did not seek to discuss Dr Ling’s certificate with him. He agreed in cross-examination that it was open to him to do so and that, as the PMO, he had in the past raised circumstances of doubt with treating practitioners. However, he said that he followed a kind of “precautionary principle” which meant that he always followed medical opinion pointing to a health risk to which a serving police officer was exposed. If a medical certificate pointed to unfitness for duty he would always follow it without question. If a medical certificate pointed to fitness and he had reason to doubt it he would query it.
162.I have difficulties with that approach by Dr Norris. In the first place, Dr Ling’s certificate stated that Constable Trindall was fit and healthy notwithstanding that he carried the sickle cell trait. Secondly, there was nothing in the certificate which identified a need to remove Constable Trindall from normal operational duty. That was an assessment by Dr Norris himself, on the basis that it was not possible to protect Constable Trindall from possible precipitants to a sicking episode as identified in Dr Ling’s certificate unless Constable Trindall was placed on formal restricted duties. It follows, and I find, that the restrictions that were imposed on 8 May 2001 were not compelled by the medical certificate by Dr Ling but were imposed by Dr Norris in the exercise of his own discretion and judgement.
163.It was also Dr Norris who made the formal restrictions permanent as evidenced by his report to Mr Gillett dated 1 August 2001. That report took into account the further specialist opinion obtained from Dr Lindeman. It also followed a further consultation between Dr Norris and Constable Trindall on 17 July 2001. Dr Lindeman’s opinion was, in all material respects, the same as Dr Presgrave’s. He thought that it would be sensible for Constable Trindall to take precautions to avoid the risk of a sickling episode which might be brought on by dehydration or impaired oxygenation. Dr Lindeman thought that the risk of such a sickling episode arising was small. Constable Trindall made clear to Dr Norris that he was concerned about his condition but that he wanted to return to normal operational duties.
164.The evidence establishes that over time during 2001 and into 2002 Constable Trindall expressed increasing frustration and concern about the restrictions imposed upon him. The reaction of the NSW Police Service was that nothing could be done in the absence of further medical opinion indicating that the restrictions were no longer required. Constable Trindall was unable to get anywhere with Dr Ling, a circumstance which is acknowledged by Superintendent Stewart. Dr Ling was not qualified himself to express any expert opinion and was dependent upon the experts reports provided to him. Further reviews were requested by Superintendent Stewart. Constable Trindall had obtained informal opinion from an overseas expert (Dr Konetey-Ahulu) which pointed to the restrictions imposed upon Constable Trindall being unnecessary. Dr Norris already knew that the restrictions were probably unnecessary and expressed agreement with Dr Konetey-Ahulu. However, he felt unable to act on that opinion because Dr Konetey-Ahulu was not a New South Wales registered practitioner or one treating Constable Trindall.
165.On 13 March 2002 Dr Norris approached Health Quest asking for a further medical review of Constable Trindall’s fitness for operational duty. This had been sought by Superintendent Stewart. The purpose was to obtain a further assessment concerning the restrictions on duty, however, Health Quest is normally only involved when issues arise concerning the fitness of police officers to continue in employment and the process, in Superintendent Stewart’s words, “went off the rails”. Health Quest sent an unsigned and undated letter to Constable Trindall at the wrong address (which was received by his uncle) which warned Constable Trindall that he was facing dismissal from the NSW Police Service for reasons of medical unfitness.
166.It was only when Constable Trindall complained to HREOC that the NSW Police Service took action to obtain a further expert report from Associate Professor Mark Hertzberg. That report confirmed what Dr Konetey-Ahulu said, which was that the restrictions imposed upon Constable Trindall were unnecessary and that he was able to undertake normal operational duties.
167.In my view, the restrictions imposed upon Constable Trindall by Dr Norris were discriminatory. Dr Norris knew that Constable Trindall could have been left on normal operational duties based upon the expert opinion of Dr Presgrave. He should have known that Dr Ling was not calling for new work restrictions but was merely supporting the then status quo. Dr Norris knew that the restrictions imposed by him (not Dr Ling) were unnecessary as he had the same view as Professor Hertzberg and Dr Konetey-Ahulu. Nevertheless, he imposed them. Dr Norris did not discuss Dr Presgrave’s opinion with him and neither did he discuss Dr Ling’s certificate with him. In imposing work restrictions Dr Norris took inadequate account of Dr Ling’s statement that Constable Trindall was fit and healthy. He apparently took no account that he had asked for Dr Ling’s certificate for the purposes of finding out whether Dr Ling was “happy” with the informal restrictions that had been placed on Constable Trindall in January which left him on full operational duty subject to the duty officer’s discretion. That was a common sense approach which dealt amply well with the very slight risk to which Constable Trindall was subject and it had been in place for about four months. Dr Norris told me from the witness box that he thought the critical words in Dr Ling’s certificate which necessitated formal restrictions were the words that Constable Trindall should avoid “domestic and other violent situations”. However, as I have already found, Dr Ling was simply repeating the terms of the informal restrictions already put in place by Mr Gillett in January 2001. Dr Norris believed (erroneously, in my view) that Dr Ling’s use of those words meant that the informal restrictions that had been put in place could not be continued because a certificate had been received from a treating practitioner which pointed to unfitness to perform certain or all duties. However, as I have already found, Dr Ling was simply confirming the terms of those informal restrictions.
168.I find that Constable Trindall was treated less favourably than the hypothetical comparator would have been in the same or similar circumstances. In cross-examination Dr Norris admitted that it was part of the role of the PMO to query doubtful medical certificates. In my view, if the hypothetical comparator had presented a medical certificate stating that he was fit and healthy but should take precautions to avoid risky situations such as dehydration or extreme physical exercise the PMO would have treated the certificate as one meriting further enquiry. On the one hand such a certificate pointed to fitness to perform normal duties. On the other hand, the certificate pointed to a need for precautions. Common sense dictates that there was a need to assess whether reasonable precautions could be taken consistently with operational requirements. Mr Gillett had taken the common sense attitude of leaving the matter to the discretion of the local duty officer. A fair and reasonable interpretation of the certificate issued by Dr Ling was that those arrangements should continue. Dr Norris should not have changed them without further consultation with Dr Ling and Dr Presgrave. Properly read, Dr Ling’s certificate called for the continuation of Constable Trindall on full operational duties subject to the duty officer’s discretion to avoid violent situations. In the case of the hypothetical comparator, Dr Norris would have either maintained the status quo or queried the certificate. He would not have imposed work restrictions that were known to be unnecessary and that were not properly based upon the medical certificate. His failure to pursue any further consultation and to change the status quo by issuing formal restrictions that were subsequently made permanent was discriminatory.
169.Further, the discrimination was exacerbated by the maintenance of restrictions that were known to be unnecessary in the face of increasing objections and frustration from Constable Trindall and the opinion (albeit informal) of Dr Konetey-Ahulu. It should not have been necessary for Constable Trindall to complain to HREOC in order to stimulate the NSW Police Service into obtaining an expert opinion that the restrictions were unnecessary and should be removed. The situation faced by Constable Trindall between May 2001 and October 2002 was brought about fundamentally because Dr Norris failed to act thoroughly upon his professional judgement. I find that in the case of the hypothetical comparator, the PMO would have acted more thoroughly upon his professional judgement and accordingly, Constable Trindall was treated less favourably than the hypothetical comparator in the same or materially the same circumstances.
170.I find that in placing the work restrictions on Constable Trindall in May 2001 and in maintaining them until October 2002 the respondent breached ss.5 and 15(2)(a) of the DDA. That is the period when the formal restrictions on Constable Trindall were in force. Constable Trindall deposed that the restrictions were to his knowledge removed in January 2003 but in his oral evidence said that he was not permitted to resume wearing his uniform until March 2003. Dr Norris removed the restrictions by letter addressed to the NSW Police Legal Services Office dated 18 October 2002. It no doubt took longer for the removal of restrictions to be put into effect at the local level, but the delay can be explained in part by the need to deal with the complaint made by Constable Trindall to HREOC. I do not consider that the respondent should bear any liability after the restrictions were removed by Dr Norris.
The indirect discrimination claim
171.I dealt with the issues of indirect disability discrimination in Hinchliffe v University of Sydney [2004] FMCA 85. The issues are whether Constable Trindall has been indirectly discriminated against for the purposes of s.6 of the DDA and whether the particular acts of discrimination asserted by Constable Trindall for the purposes of s.15(2) of the DDA have been proven to be unlawful. I have already found that s.15(2)(a) is applicable in relation to the restrictions placed upon Constable Trindall’s employment. I make the same finding in relation to the claim of indirect disability discrimination.
172.The matters which Constable Trindall must prove for the purposes of s.6 of the DDA are different to those which I have found he has proved in relation to s.5. Section 6 relevantly requires that Constable Trindall establish that the NSW Police Service discriminated against him on the ground of his disability because the Police required Constable Trindall to comply with a requirement or condition:
(a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c) with which Constable Trindall did not or was not able to comply.
173.As I noted in Hinchliffe this necessarily requires a comparison between the position of the applicant and the position of other persons without the disability. However, as the Full Federal Court noted in Catholic Education Office v Clarke [2004] FCAFC 197 the comparison required by s.6(a) is not with the applicant personally, but with a class of persons with the applicant’s disability. If there is no such actual class, it could be a hypothetical class. Mr Gibian submits that, for the purposes of s.6, the relevant requirement or condition is the requirement that Constable Trindall produce medical evidence to demonstrate that he was fit and able to perform the full range of policing duties. Constable Trindall was required to submit a report by Mr Gillett and was then directed to attend a medical assessment and obtain a medical certificate. Subsequently, after the formal restrictions were imposed, Constable Trindall was called upon to produce further medical opinion that warranted the removal of the restrictions. Mr Fernan submits that that contention misrepresents the facts.
174.As in Hinchliffe, I adopt the description by Drummond J in Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987:
The concept of a “requirement or condition” with which the aggrieved person is required to comply involves the notion of compulsion or obligation. See the definition of “require” and “requirement” in the Macquarie Dictionary, 3rd edition, and the definition of “condition” which includes the following:
“A circumstance indispensable to some result; a pre-requisite; that on which something else is contingent…something demanded as an essential part of an agreement”
and whether a “requirement or condition” within s.6 has been imposed within the context of the Disability Discrimination Act will take its colour from the particular setting in which it is said a prohibition against discrimination created by the Act has been infringed by indirect discrimination.
175.The expression “requirement or condition” in s.6 of the DDA should be construed broadly to include any form of qualification or pre-requisite, although the actual requirement or condition needs to be formulated with precision: Catholic Education Office v Clarke at [103]. In this case Constable Trindall was required by Mr Gillett to submit a report on his condition. Mr Gillett also imposed initial flexible restrictions upon Constable Trindall’s performance of duty. The PMO required that Constable Trindall be examined by a specialist and that his treating GP assess the appropriateness of the temporary restrictions to which Constable Trindall was subject. Subsequently, after formal restrictions were imposed by Dr Norris, it was made clear to Constable Trindall that the restrictions could only be removed if further medical opinion was obtained which called for the removal of those restrictions.
176.In the light of these facts at a general level, Constable Trindall was simply called upon to establish by medical evidence his fitness for normal duties. More specifically, however, Constable Trindall was required to provide a medical assessment on the appropriateness on the restrictions on duty which had been imposed first by Mr Gillett and later and more formally by Dr Norris. It is that more specific expression of the requirement that I find was imposed upon Constable Trindall. The requirement to provide a medical assessment on the appropriateness of work restrictions imposed by the employer is plainly, in my view, a condition, requirement or practice for the purposes of s.6 of the DDA.
177.Mr Gibian submits that the Court should compare Constable Trindall’s ability to comply with that condition with the ability of other police officers without the sickle cell trait to comply. However, as I have already noted, that is a misunderstanding of the operation of s.6. For present purposes, the obligation is to consider the position of persons with the sickle cell trait (including Constable Trindall) with persons without the trait. The ability of Constable Trindall personally to comply with the requirement is relevant but in relation to paragraph (c) rather than paragraph (a).
178.The evidence establishes to my satisfaction that persons without the sickle cell trait could more readily comply with a condition or requirement that they demonstrate their fitness for service with the NSW Police by obtaining a medical assessment of the appropriateness of any restrictions upon their service than persons without the trait. The sickle cell trait is little known in Australia and relatively poorly understood. Even where the trait is well known overseas (such as in the USA and the UK where there is a large population of black African origins) issues of restrictions upon employment have been poorly and improperly handled (see paragraph 135 above). In Australia, where the trait is little known and relatively poorly understood, the task of persons with the trait is that much more difficult. I find that a substantially higher proportion of persons without the sickle cell trait would be able to comply with the condition or requirement imposed by the NSW Police Service than persons with the sickle cell trait.
179.The next issue is whether the condition or requirement was reasonable in the circumstances of the case. It was reasonable for Mr Gillett to impose flexible and informal restrictions and to require a report from Constable Trindall about his condition so that he and other officers within the NSW Police Service could better understand the condition. It was also reasonable for Dr Norris to require Constable Trindall to be examined by a haematologist and for Constable Trindall’s treating general practitioner to comment upon the initial restrictions that had been imposed informally by Mr Gillett. The PMO reasonably required a reliable expert assessment of Constable Trindall’s condition and reasonably required an opinion from Constable Trindall’s treating practitioner as to whether Mr Gillett’s restrictions were appropriate in the circumstances. What was not reasonable was to impose the further requirement that Constable Trindall obtain further medical opinion justifying the removal of the restrictions imposed by Dr Norris. As I have already found, Dr Norris’ conditions, while purportedly based upon the certificate of Dr Ling, were in fact erroneously based upon that certificate and were known by Dr Norris to be probably unnecessary and unwarranted at the time he issued them. The conditions should not have been imposed by Dr Norris in May 2001 in the absence of consultation between him and Dr Ling and Dr Presgrave. Those restrictions having been inappropriately imposed, it was not reasonable for the NSW Police Service to require that Constable Trindall provide further medical opinion to justify the removal of them.
180.Plainly, Constable Trindall was unable to comply with the requirement after May 2001. Dr Ling was completely out of his depth and dependent upon the opinion of Dr Presgrave and later Dr Lindeman. For their part, Dr Lindeman and Dr Presgrave simply cautioned in favour of the advisability of some precautionary measures and were in no position to comment upon police operational requirements. Dr Konetey-Ahulu was in a position to provide relevant medical opinion but the NSW Police Service would not act on it because Dr Konetey‑Ahulu was not a New South Wales registered practitioner and was not treating Constable Trindall. Ultimately, after Constable Trindall had made a complaint to HREOC, the NSW Police Service was compelled to arrange for a further opinion itself from Professor Hertzberg. I find that Constable Trindall was unable to comply with the requirement placed upon him after May 2001.
181.I find that the respondent discriminated against Constable Trindall on the ground of his sickle cell trait by requiring Constable Trindall to produce medical opinion justifying the removal of work restrictions placed upon him in May 2001. As I have already found, those work restrictions were themselves discriminatory, pursuant to s.15(2)(a) of the DDA. The requirement that Constable Trindall produce medical opinion supporting the removal of those restrictions was in my view a further discriminatory act under s.15(2)(a). In any event, the requirement or condition imposed upon Constable Trindall that he demonstrate his fitness for service by producing medical opinion justifying the removal of the restrictions constituted a “detriment” for the purposes of s.15(2)(d) of the DDA. It was a detriment because Constable Trindall was prevented from performing the duties which he sought to perform unless he could comply with the requirement.
182.It follows that the claim of indirect disability discrimination has been established.
The racial discrimination claim
183.Mr Gibian puts the claim of racial discrimination upon the basis that the sickle cell trait is a condition which affects only persons from certain racial backgrounds, particularly persons of African or African American descent. While it is true that the sickle cell trait is most common among black Africans or persons of African descent, the trait occurs in persons of a variety of ethnic backgrounds, including persons of various Mediterranean backgrounds. The condition is one that is inherited. While it may well have originated in Africa, it has spread by natural inheritance through generations all around the globe. In the case of Constable Trindall, while the conduct of the NSW Police Service was based upon Constable Trindall’s disability, it was not based upon his race or ethnicity. His Aboriginality was irrelevant. His black African heritage was relevant but was not a conscious factor in the actions of the NSW Police Service. The Police acted as they did because Constable Trindall had the sickle cell trait, not because he was black.
184.The claim of racial discrimination fails.
Loss and damage
185.I accept Mr Gibian’s submissions as to the general principles which should govern the assessment of non economic loss. I also accept that Constable Trindall suffered a very significant injury to his feelings and emotional and psychological distress, hurt and humiliation. He was on full restricted duties for a period of about one and a half years. Constable Trindall complained repeatedly and fruitlessly about the work restrictions imposed on him. He was concerned about his sickle cell trait before the work restrictions were imposed, and the work restrictions could only have exacerbated his concerns – because they gave credence to a false impression of the risk of injury and sudden death. He suffered depression, anxiety and sleeplessness and was placed on medication. He was enrolled in, but failed to complete, the constable development programme. I find that his poor psychological state was a factor in that failure. The situation was not remedied until Constable Trindall complained to HREOC. It should have been remedied much earlier, at least from the time when Constable Trindall presented his correspondence with Dr Konetey-Ahulu.
186.Mr Fernan submits that general damages should be restricted to around $5,000. I disagree. That was the amount of general damages for non-economic loss that I awarded in Mayer v ANSTO [2003] FMCA 209. Constable Trindall suffered much more grievously than did Samantha Mayer. Constable Trindall’s loss was at least as great as that of Ms Rispoli in Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160. I awarded general damages of $10,000 in that case. I will award the same amount of general damages in respect of non-economic loss in this case.
187.As for economic loss, I find that the only economic loss suffered by Constable Trindall was the loss of the opportunity to perform some overtime and shift work. I accept Mr Gibian’s submission that between 6 January 2000 and 28 September 2000 Constable Trindall earned approximately $480 per month in overtime and shift allowances. I also accept Mr Fernan’s submissions that Constable Trindall was not denied all overtime and shift allowances during the period when he was subject to formal restrictions upon his duties. Whilst there was no guarantee of Constable Trindall receiving overtime and shift allowances, I find that Cosntable Trindall had a reasonable expectation of receiving allowances on average of not less than $480 per month. Constable Trindall should receive damages for economic loss for the difference between $480 per month and the actual overtime and shift allowances received by Constable Trindall for the period between the imposition of the formal restrictions on 8 May 2001 and their removal on 18 October 2002. That amount will have to be calculated by the parties. In the meantime, I will make a declaration as to the discrimination suffered by Constable Trindall.
188.Constable Trindall is not entitled to receive any advancement in grade or any damages for economic loss in respect of a lost opportunity to achieve advancement in grade. I have already taken into account Constable Trindall’s inability to complete the constable development course for the purposes of assessing non economic loss. No further damages in relation to that aspect are recoverable.
189.Constable Trindall should also receive interest up to judgment at the rate of 10.5 per cent from 8 May 2001 (the date of the imposition of the formal restrictions upon his duties by Dr Norris). I will so order. Constable Trindall is entitled to interest on the judgment pursuant to the Federal Magistrates Act 1999 (Cth) and Federal Magistrates Court Rules 2001 (Cth) without any order.
190.I will not order the provision of an apology. It would in my view be of no real value to Constable Trindall unless it is genuine and sincere. If, in the light of these reasons, the NSW Police Commissioner genuinely and sincerely wishes to apologise to Constable Trindall, no order is necessary.
191.I will hear the parties as to costs.
I certify that the preceding one hundred and ninety one (191) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 February 2004
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