Vickers v The Ambulance Service of NSW
[2006] FMCA 1232
•25 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VICKERS v THE AMBULANCE SERVICE OF NSW | [2006] FMCA 1232 |
| HUMAN RIGHTS – Disability discrimination − where respondent refused to employ applicant as a trainee ambulance officer on the basis of his disability (type 1 diabetes) − whether respondent discriminated against applicant under s.15(1)(a) or (b) of the Disability Discrimination Act − whether respondent had an express or implied policy to exclude type 1 diabetics from employment − whether applicant unable to carry out the inherent requirements of the employment due to his disability. DAMAGES − Where application for general damages for delay in processing his application − whether court should order the applicant proceed to the next step in the application process − whether court should order that if the applicant is successful in that step he be appointed at the next intake. |
| Disability Discrimination Act 1992 (Cth), ss.4, 5, 15 Human Rights and Equal Opportunity Commission Act 1986, ss.46PV, 46PO(1) |
| Holdaway v Qantas Airways Ltd (1992) EOC 92-395 Cooper v Ford Motor Company of Australia (1987) EOC 92-191 Qantas Airways v Christie (1998) 193 CLR 280 Bugden v State Rail Authority of New South Wales (1991) ESC 92-360 Aiden v The Commonwealth of Australia (1999) HREOCA 4 (24 February 1999) 19 Y v Human Rights and Equal Opportunity Commissioner [2004] FCA 184 Commissioner of Police, NSW Police v Zraka [2005] NSWADTAP 1 X v The Commonwealth (1999) 200 CLR 177 Wattle v Kirkland (No.2) (2002) FMCA 135 |
| Applicant: | DAMIEN VICKERS |
| Respondent: | THE AMBULANCE SERVICE OF NEW SOUTH WALES |
| File Number: | SYG635 of 2006 |
| Judgment of: | Raphael FM |
| Hearing dates: | 13 & 14 July 2006 |
| Date of Last Submission: | 14 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms E. Raper |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondent: | Ms T. Anderson |
| Solicitors for the Respondent: | Haywards Solicitors |
| Human Rights and Equal Opportunity Commission (Acting Disability Discrimination Commissioner): | Mr J. Hunyor |
ORDERS
The respondent to pay to the applicant within 28 days the sum of $5000 damages for breach of s.15(1)(b) Disability Discrimination Act 1992 (Cth).
The applicant’s application for the position of trainee ambulance officer proceed immediately to stage 6 of the respondent’s selection process – probity screening.
There be liberty to apply on seven days’ notice by way of application and affidavit in support, for further orders relating to the appointment of the applicant as a trainee ambulance officer.
The respondent pay the applicant’s costs assessed in the sum of $5000 within 28 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG635 of 2006
| DAMIEN VICKERS |
Applicant
And
| THE AMBULANCE SERVICE OF NEW SOUTH WALES |
Respondent
REASONS FOR JUDGMENT
Introduction
In January 2003 Damien Vickers, who was at the time a registered nurse working in the operating theatre of the Mater Hospital, applied for the position of trainee ambulance officer with the Ambulance Service of New South Wales, now a part of the Health Administration Corporation (“HAC”). Mr Vickers is a type 1 diabetic. He requires regular doses of insulin administered by injection. It is accepted that his condition constitutes a disability as defined in s.4 of the Disability Discrimination Act 1992 (Cth) (“DDA”). There are several sequential steps involved in the recruitment process which are detailed in paragraph 2 of Mr Vickers’ affidavit of 23 February 2006. The fifth step is attendance at a medical assessment. Only those who pass the medical assessment are allowed to proceed to the next step of probity screening. Mr Vickers did not pass the medical assessment because of the existence of type 1 diabetes. He was not allowed to proceed with the application process. Mr Vickers claims that in declining his application the Ambulance Service discriminated against him in the manner described in s.5(1) of the DDA and in doing so breached s.15(1)(a) or (b) of the DDA in circumstances where s.15(4) of the DDA would not apply to the breach of s.15(1)(b) and did not otherwise apply. The respondent contends that there is no evidence to suggest that the applicant was, on the grounds of his disability, treated any differently to any other applicant for employment as a trainee ambulance officer insofar as he was required to undergo a pre-employment medical assessment. In regard to the claim under s.15(1)(b) it argues that any discrimination that may have taken place was not unlawful because taking into account the matters raised in s.15(4) Mr Vickers would be unable to carry out the inherent requirements of the employment.
Mr Vickers has commenced these proceedings pursuant to s.46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOCA”) At the commencement of the proceedings and without objection from either the applicant or the respondent I gave leave for the Acting Disability Discrimination Commissioner to appear as amicus curiae pursuant to s.46PV of the HREOCA. The Acting Disability Discrimination Commissioner did not cross-examine witnesses but limited himself to making submissions on the relevant law.
Narrative
Mr Vickers received notice of the requirement to attend a pre-employment health assessment by way of letter dated 7 May 2003. He was examined on 16 May 2003 by Dr Stan Kotulski. Dr Kotulski noted that upon examination he was found to have a history of insulin dependent diabetes and that further information was required regarding control, hypoglycaemia, and likely effects with shiftwork. Reports were required from his treating endocrinologist. Mr Vickers’ treating endocrinologist was Dr Neville J Howard MBBS FRCP(C) FRACP. Dr Howard had been treating Mr Vickers since the original diagnosis of type 1 diabetes when he was about eight, some fifteen and a half years prior to the examination. Dr Howard wrote to Dr Kotulski on 27 May 2003 stating:
“Damien maintains his HbA1c level in the very good control range for type 1 diabetes. The last five HbA1c levels have been between 6.6 and 7.9%, the most recent in my records on 18 January 2002 was 7.6%.
He has had regular complications assessments and has no neuropathy, retinopathy or nephropathy. He is hypoglycaemia aware and is sensible about management of such hypoglycaemia. Damien has no other auto immune disease and he has not been hypotensive in all of the many recordings of blood pressure that I have.”
On 13 June 2003 Mr Vickers received a letter from the recruitment co-ordinator, Ms O’Brien, advising him:
“Unfortunately I regret to inform you that your medical assessment has indicated that you are medically and physically unfit to perform the duties and requirements necessary for the position of trainee ambulance officer due to:
·Insulin dependent diabetes.”
On 25 June 2003 Mr Vickers wrote back to Ms O’Brien seeking a review of the decision and enclosing a number of documents to support his claim. He noted that one of the grounds for rejecting him was that shiftwork might have some effect upon the control of his diabetes. He pointed out that he had been a registered nurse for four years and that since graduation he had done shiftwork in his employment as a nurse in the Mater Hospital. For three of those four years he had worked in a difficult and very demanding position of scrub nurse in the operating theatre. He stated that there had never been an issue around his diabetes or his diabetic control. He had also been an active member of the St John Ambulance Service and had performed more than twelve hundred public volunteer duty hours, many of these being all day sessions. He pointed out that he had previously worked shifts in excess of fifteen hours without loss of diabetic control. This information was confirmed by another letter dated 1 July 2003 from Dr Howard as well as letters from the St John Ambulance Service and the Mater Hospital. On 2 March 2004 he wrote a further letter to Ms O’Brien.
Mr Vickers was not further examined by a doctor on behalf of the Ambulance Service. Although the service had agreed to a review of his medical assessment on 1 July 2003 and the review was carried out by Dr Wong of HAC and reported on by letter to Ms O’Brien of 25 August 2003, Mr Vickers did not receive the advice that he:
“Remained medically and physically unfit to perform the duties and requirements necessary for the position of trainee ambulance officer.”
until he was sent a letter by Mr Russell Cruickshank, manager of the human resources unit, on 21 May 2004. On 1 June 2004 Mr Vickers wrote to Mr Cruickshank requesting a meeting with him, but that was refused. Mr Vickers then complained to the Human Rights and Equal Opportunity Commission (“HREOC”).
Dr Wong’s report indicates that he had read the evidence put forward by Mr Vickers but remained of the opinion that the original decision was correct. He then set out his reasons for coming to that conclusion:
“1. Ambulance officers are required to work in all types of locations. As such there is the need for operational ambulance personnel to be capable of serving in remote, isolated and dangerous locations. These locations may involve working in close proximity to machinery, heights, fire and chemical and other contaminants. The management of Insulin Dependent Diabetes Mellitus (IDDM) still carries with it the increased and foreseeable risk of a change in the level of consciousness of individuals with this condition. It is therefore not possible for the Ambulance Service to guarantee that Mr Vickers will not be at increased risk of sustaining significant and perhaps life threatening or fatal injury should his awareness of his surroundings become compromised because of hypoglycaemia. Whilst Mr Vickers has shown a satisfactory level of competence in the operating theatre it is reasonable to assume that any deterioration in his level of consciousness could have been adequately and safely managed by the trained professionals he was working with. It is highly unlikely that in all the time he worked as a scrub nurse that he was solely responsible for the safety of a patient in difficult or hazardous surroundings.
2. As an Ambulance Officer Mr Vickers would be expected to work a rotating shift pattern involving day, evening and night shift. Such a dramatic regular change of the houses of activity and food consumption is highly likely to interfere with his current good level of control. To the risk of hypoglycaemia as an acute even this will add the risk of Mr Vicker’s work exacerbating the development of the known long-term sequelae of IDDM. Work at rescue sites can continue for many hours, in extreme circumstances. The Ambulance Service cannot guarantee Mr Vickers ready hygienic access to his insulin and testing equipment. Failure on his part to function at an optimum level for the duration of the emergency could jeopardise the safety of his patients, work colleagues and himself.
3. Mr Vickers advises that he has become expert in “managing my sugar levels in order to prevent ‘hypos’ and plan my carbohydrate and insulin intake to be able to successfully navigate the day ahead.”. Mr Vickers is currently using four injections of insulin a day. He would need therefore to have access to his insulin, testing equipment and insulin pen or needle and syringe throughout the shift. This does have implications from an infection control perspective that could impact on both his and patient safety. As an ambulance officer Mr Vickers is expected to participate in emergency responses at short notices. It is not possible for the Ambulance service to predetermine at the beginning of the shift the requirements of that shift. It is therefore not possible for Mr Vickers to plan his food and insulin intake to successfully navigate that shift.
1. Mr Vickers is expected to be able to work in isolation and irregular shift patterns. Whilst his diabetic control is good there is no certainty that he would not have a hypoglycaemic episode and if this were to occur when he was working in remote and isolated areas both his safety and that of the population he serves will be compromised. Furthermore there is no satisfactory way of managing his insulin usage if he were to work irregular shift pattern. Mr Vickers runs the risk of hypoglycaemic attacks and poor control of this blood sugar level.
2. As an ambulance officer Mr Vickers is expected to participate in emergency responses at short notices. This is likely to upset his diabetic routine. At an emergency/accident scene he may not have the opportunity or the resources to access glucose or carbohydrate supplement in time to correct a hypoglycaemic attack.
3. Ambulance Services of NSW could not ensure Mr Vickers’ health and safety at work given the above foreseeable risks.” [sic]
[The copy of the letter which is found in the affidavit is in rather odd form. The numbering of the paragraphs is not sequential and there are some large gaps. I pointed this out to the parties but the matter was not taken further and I proceed on the basis that this is the full report.]
As part of these proceedings a further review was undertaken by Dr Keith Adam MBBS FACOM FRACP. Dr Adam is a specialist in occupational medicine. He works for Health Services Australia. Dr Adam did not physically examine Mr Vickers but reviewed the documentation before Dr Wong and a series of letters and reports from Dr Howard, as well as a report from Dr Michael Dodd.
In two further affidavits filed on 19 April 2006 and 9 June 2006 Mr Vickers deposes to the fact that very early in his schooling his ultimate career goal was to be a paramedic with the New South Wales Ambulance Service and it was in pursuance of this goal that he enrolled in a Bachelor of Nursing Degree at UTS, becoming a registered nurse in 2000 with a credit average degree. In the later affidavits he states that he has read Dr Adam’s report. That report, with which I will deal in more detail later, notes a diagnosis of mild diabetic retinopathy and picks up on two mentions of hypoglycaemia in Dr Howard’s medical notes in 2001 and 2005. The report also makes reference to the problems of shift work. Mr Vickers states in his affidavit that he has never suffered any problems from the diabetic retinopathy and that he has never had what was described in court as a hypoglycaemic event. A hypoglycaemic event is when a diabetic’s blood glucose level drops so low that he experiences a number of symptoms commencing with feeling unwell, moving through other symptoms such as sweating of the brow, tremulousness, hunger and tingling around the mouth before losing concentration, becoming disorientated and possibly falling into a coma. Mr Vickers deposed to speaking to Dr Howard about low blood glucose levels in the morning but stated that it never prevented him from undertaking shift work or in performing his work in the hospital to a satisfactory and professional level. Dr Howard suggested an adjustment to Mr Vickers’ NPH insulin levels and the low blood glucose issues in the mornings were resolved. Mr Vickers deals with the concern expressed by Dr Adam that he would not be able to obtain a conditional commercial licence. He pointed out that he already has a conditional licence and has had one for ten years. His evidence was the only additional criteria imposed on a conditional commercial licence was that instead of a two yearly review and certification by his treating doctor, he would be subjected to an annual review by an endocrinologist or other specialist in diabetes. That evidence was not disputed.
Mr Vickers goes on in his affidavit to debate some concerns expressed by Dr Adam about the possibility of him having a hypoglycaemic event as a result of taking insulin and then not being able to eat because of an emergency. The possibility of a hypoglycaemic event was the subject of much discussion during the course of the hearing and cross-examination of Mr Vickers. It was put to him that the pressures of the job, the requirement to work shift work and possibly extra long hours on shift, the haphazard arrangements for meals and the requirement to work in difficult conditions on his own would increase the possibility of such an event occurring. Mr Vickers’ response was that he had learnt to handle lengthy shifts in high pressure conditions whilst at the Mater Hospital without problem. He was hypoglycaemic aware, which meant that he could tell if his blood glucose dropped to a level which might presage a hypoglycaemic event. He explained that when this happened he experienced a feeling that he was “not quite right”. He found it difficult to explain this feeling but he used it as an indicator and took appropriate action. Appropriate action in all cases is to increase the blood glucose level either by having a proper meal or, if that is not possible, by taking glucose which acts almost instantaneously. My understanding of Mr Vickers’ evidence is that some short time passes between him getting this feeling that something is not quite right and the next level of symptoms which may be sweating or tremulousness. He is currently a medical representative for a drug company and spends many hours a day on the road. He indicated that if he had any symptoms of low blood glucose he could stop and eat a muesli bar or have a sandwich. He was lengthily cross examined about what would occur if he was driving an ambulance above the speed limit to an accident. He explained that he always carried with him a tube of glucose and that he could take this and that it would work within seconds. Questions were put on the same topic to Dr Howard who indicated that if Mr Vickers was called away suddenly after he had taken insulin and before he had managed to have his meal, he would do what all sportsmen who had type 1 diabetes did in those circumstances and eat a muesli bar.
Mr Vickers also explains in his affidavit that he usually took insulin three times a day (not four as suggested in Dr Wong’s report). This is at breakfast, before the evening meal and before retiring. Dr Howard explained that the treatment of type 1 diabetes has changed from being centred around the insulin intake to being centred around the diabetic’s daily activities. The most up to date equipment for monitoring blood glucose levels and delivering insulin are able rapidly to calculate the correct amount of insulin required in the circumstances that are expected to be encountered. During the day shorter lasting insulin is used whereas at night a long lasting preparation is delivered. The equipment is small, being a measuring device and dosage calculator about the size of a visiting card, and a pen type syringe about the size of a large fountain pen.
Dr Howard explained that a diabetic does not suffer any symptoms which might have the effect of reducing his capacity to undertake work at a similar level to a non-diabetic because he has more than the usual amount of blood glucose in his blood at any one time. Insulin is used to keep his blood glucose at the lowest level consistent with the ability to live normally. In this way the risk of what are known as “end organ affects” from the disease is limited. Dr Howard was satisfied there was no danger either to Mr Vickers or to the manner in which he carried out his work by not taking insulin in an emergency situation.
The respondent did not seek to deny Mr Vickers own estimate of his ability to control his blood glucose levels or that this had enabled him successfully to work for four years as a theatre nurse in a busy metropolitan hospital whilst also being a volunteer for the St John Ambulance Service. Its case was that the inherent requirements of being an ambulance officer would put more strain upon his ability to properly manage his blood glucose levels and that there would be an increased risk of a hypoglycaemic incident which might endanger Mr Vickers’ life, the life of his partner and the life of any person or persons being treated or carried in the ambulance. The Ambulance Service also maintained that the shift work and high stress level of the job would prevent Mr Vickers from optimally maintaining a lower blood glucose level and this could give rise to difficulties with the disease. From the documentation it seems clear that in regard to Mr Vickers’ own situation the Ambulance Service had concerns about the possibility of a workers compensation claim down the track. Another matter of original concern was the diagnosis of retinopathy in one, and later both, of the applicant’s eyes. I am satisfied from the evidence of Dr Howard, which I believe was accepted by Dr Adam, that this retinopathy has no affect on the applicant’s vision and thus no affect on any matter which would impinge upon the inherent requirements of the position.
Mr Vickers’ views about his ability to undertake the work of an ambulance officer are necessarily subjective. He has not suggested that the work which he does for the St John Ambulance Service is a full comparator of the work of a New South Wales ambulance officer. The best evidence which I have as to whether Mr Vickers is capable of carrying out the inherent requirements of the position is that from Dr Howard for the applicant and Dr Adam for the respondent. Dr Howard is the senior physician in diabetes at the Children’s Hospital at Westmead and the senior staff specialist in endocrinology at the Institute of Endocrinology and Diabetes at the Children’s Hospital. He is a fellow of the Royal Australian College of Physicians in the endocrinology section. He has worked in Canada and Australia and is the President and Chairman of the Board of Directors of Diabetes Australia in New South Wales, a position he has held since 2001. In 1996 he was the Chairman of the New South Wales Health Paediatric Diabetes expert panel on paediatric guidelines. In 1997 he was given the Sir Kempson Maddox award for a significant contribution to the diabetes movement. Dr Howard has been Mr Vickers’ treating endocrinologist since his diabetes was diagnosed. Dr Howard provided the letter of 1 July 2003 which Mr Vickers sent with the various papers he included in his application for a review of the original decision not to appoint him a trainee ambulance officer. Two letters from Dr Howard were attached, the first directed to Mr Vickers stating:
“I am aware of your situation and have heard from the advocate at Diabetes Australia about your interview there. I will do whatever I can to support your application to work in the Ambulance Service.”
The second letter was in the following form:
“Damien has type 1 (insulin dependent) diabetes mellitus of 15.5 years duration. He looks after his diabetes with multiple insulin routine using Lispro and Humulin NPH insulins. Over the last seven years he has maintained his diabetes in excellent control with HbA1c levels to show that this is the case. He has no complications of diabetes and has had no acute episodes of decompensation.
I am writing particularly to indicate that since Damien joined the workforce as a registered nurse his diabetes has never interfered with his work. He has certainly been able to adapt and adjust his physical needs to fit the workplace. Furthermore, as a registered nurse he has worked shifts around the clock and has successfully managed to do that without his diabetes interfering with shifts. His insulin routine is particularly appropriate for shiftwork.
His diabetes condition and its management is no reason for refusing his employment.”
Dr Howard did not produce a full report for the purposes of these proceedings. What occurred was that Dr Adam, the respondent’s expert, produced a report in which he had indicated that he had read a large number of documents including many letters from Dr Howard. Dr Adam commented upon those letters in the first three paragraphs of his report.
“From my review of the above material, I understand that Mr Vickers has been suffering from insulin-dependent diabetes mellitus since approximately aged 8, and for all of that time, he has been under the care of Dr Neville Howard, who has provided most of the reports listed above. For the majority of this time, Mr Vickers has been compliant with treatment, and has maintained good control of his diabetes. However, in the course of a Diabetes Complications Assessment performed in May 2000, very mild diabetic retinopathy was first observed in the left eye. At that state, early sensory nerve changes were also detected on thermal threshold testing. In August 2001, the mild changes in the left eye were again present, but no mention was made of any peripheral neuropathy. In February 2004, very mild retinopathy was still present in the left eye, but moderate non-proliferative and diabetic retinopathy was also observed in the right eye for the first time.
Several of the reports by Dr Neville Howard (2 May 2001, 28 July 2005) mention hypoglycaemia, more commonly early-morning and particularly after evening shifts working at the hospital. There is also a sheet of what I presume to be the results of blood glucose monitoring performed in February and March of an unspecified year. Six of the results are 2.0mmol/L or less (6.1%), levels approaching those when hypoglycaemic symptoms might be expected to occur. A further 9 results (9.1%) lie between 2.0mmol/L and 3.0mmol/L. The complete results are tabulated in Appendix A.
Mr Vickers applied for a position as a trainee ambulance officer in the Ambulance Service of New South Wales, and as part of the recruitment process, he underwent a medical assessment performed by Dr Stan Kotulski on 16 May 2003. In consequence of the diabetes disclosed at that examination, Ms Desiree O’Brien of the Ambulance Service of New South Wales informed Mr Vickers in a letter dated 13 June 2003 that his application had been unsuccessful. Mr Vickers responded in a letter dated 25 June 2003 in which he requested a reconsideration of the decision, supported by a number of references and medical reports. He highlighted his careful diabetic control, even whilst working shifts as a registered nurse. “During my years of shiftwork, I have managed and adapted my routine of insulin administration, food intake of exercise to suit my work needs.” He makes no mention of hypoglycaemic episodes. A supportive letter from his treating endocrinologist, Dr Neville Howard states “over the last seven years he has maintained his diabetes in excellent control with HbA1c levels to show that this is the case. He has no complications of diabetes and has had no acute episodes of decompensation [my emphasis]”. He concludes ‘his diabetes condition and its management is no reason for refusing his employment.” He makes no specific mention about hypoglycaemia. Dr Howard was clearly unaware of, or had overlooked the previous report of mild retinopathy, and had not recalled his previous concerns about hypoglycaemia, particularly early in the morning.”
Dr Howard responded to Dr Adam’s comments in a report dated 19 June 2006. That letter is reproduced below:
1. In response to comments about Mr Vickers’ retinopathy I would like to point out that he has variable (intermittent) background non-proliferative retinopathy which in the Hospital Diabetes Complication Unit is seen in the majority of subjects with this form of diabetes from two years of diagnosis and is considered of no functional significance nor of predictive value for proliferative diabetic retinopathy (vision threatening).
2. In my letters of 2 May 2001 and 28 July 2005 I refer to early morning hypoglycaemic which do not relate to defined hypoglycaemic events as described in 5.2.1 of Appendix B in Keith Adam’s report. These were grade 1 hypoglycaemic events common to well controlled diabetes type 1 and amount to minor symptoms of sweating, hunger etc. etc.
With respect to No 3, I define “no acute episodes of decompensation” to mean no episodes of either hypoglycaemia or hypoglycaemia that are sufficiently severe to cause the need of medical attention. In the case of hypoglycaemia this would mean a grade 3 or grade 4 episode where the individual is unable to recover without assistance. Damien Vickers has not had any such episodes in recent years.
In responding to No 4 I refer back to No 1. I was clearly aware and had not overlooked the report of mild retinopathy for the reasons stated in No 1. I therefore had given consideration to both the finding of non-proliferative retinopathy and to his minor hypoglycaemia when I wrote to the Ambulance Service and stated “his insulin routine is particularly appropriate for shift work. His diabetes condition and its management is no reason for refusing his employment”. There was no problem in and I did have recall of minor hypoglycaemia and non-proliferative retinopathy when I wrote to the Ambulance Services.
In answering No 5 I would point out that Damien Vickers is using the MDI “multiple daily injections” method of insulin management which allows flexibility in timing and amounts of short acting insulin to cover food intake and to be adjusted according to exercise. These short acting injections are taken against the background of a long acting insulin which is taken at a standard time to cover periods of sleep and as a basal insulin for the rest of the working day. My opinion is therefore that Mr Vickers is on the best available insulin routine for shift work.
Lastly I would like to point out that Damien Vickers manages his diabetes according to international best practices with his HbA1c values (as a judge of his diabetes control) in the target range for this diagnosis.
I would like to declare to the court that I have made all enquiries which I believe are desirable and appropriate and no matters of significance which I regard as relevant have to my knowledge been withheld from the court.”
Dr Howard was examined orally and cross examined by Ms Anderson. He commenced by pointing out the change in the way diabetes has been managed:
“In recent years with the change of management of diabetes its become the other way around Your Honour so that he adjusts his insulin according to his life style and he has the basal insulin which he takes every day and then varying amounts of short acting insulin according to when he eats and how he eats and how much he exercises.
With the short acting insulin, when does he have to take that during the day?
At the time of meals, significant meals, not small snacks but significant meals
And if he doesn’t eat during the day?
He doesn’t take insulin.” [P49]
Dr Howard talked about the retinopathy diagnosis and explained that non proliferative retinopathy is quite common among young adults with type 1 diabetes. It comes and goes and does not in any way affect eyesight:
“On the basis of your treatment and history of treatment of Mr Vickers do you think he would be a danger to himself if he were to perform the duties of an ambulance officer?
No.
“On the basis of your history of treating Damien Vickers do you believe that he would be a danger to others when he is driving am ambulance?
No.
Do you believe that he would be a danger to others when performing the duties of treating a patient on location because of his diabetes?
No, especially as he has worked as a nurse and shifts and emergency situations in an operating theatre.”
Dr Howard was cross examined by Ms Anderson. They discussed the effects of increased adrenalin levels from driving an ambulance at high speed in an emergency. Dr Howard opined that raised adrenalin levels would have no effect upon a diabetic because they increased the blood glucose level and it was only low blood glucose level that caused hypoglycaemic events. She then turned to a table that had been produced by Dr Adam from papers that had been sent to him and which in all probability came from Dr Howard. These indicated blood glucose levels over a period of a few months in an unknown year. There were some low levels of blood glucose recorded once or twice during daytimes and slightly more frequently at night. Dr Howard explained:
“And if I may comment your Honour about the night time ones I don’t think Counsel mentioned those, but those are when someone who is sleeping and roused while they are tested by somebody in the night and the blood glucose levels of all of us fall lower at night, so the 2.3 is not relevant at night but it certainly is at the times that you mentioned.” [T52]
Dr Howard agreed that a person should not be driving an ambulance if his blood glucose level fell below 2.3. He stated that Mr Vickers was hypoglycaemic aware:
“So aware means that either you function at a low blood glucose level adequately or you feel the symptoms of hypoglycaemia and correct the problem so that if you are driving, getting into an ambulance or you are in an ambulance and you are hypoglycaemic aware then you would manage that problem.” [T 53]
Ms Anderson then questioned Dr Howard about the possibility of long term problems if a diabetic was constantly being called upon to adjust their blood glucose levels by taking glucose:
“I suppose that is what I was asking you, if a person is regularly needing to top up without being aware of how much they should be taking does it have consequences insofar as potential long term?
No.”
Dr Howard was then questioned about the effects of an oncoming hypoglycaemic event, in particular the sweating and shaking of hands. Dr Howard agreed that it was not appropriate for a person whose hands were shaking to attempt a medical intervention such as giving an injection or inserting a cannula, but pointed out that this happens from time to time in all medical emergencies. People’s hands shake for all sorts of reasons. Dr Howard was questioned about the requirements of the position of an ambulance officer to lift patients and the extent to which that might deplete blood glucose levels. The doctor responded that a patient who knew how to control his diabetes would take all of those matters into account when setting the daily insulin dose. He was asked about shiftwork and the unpredictable work load. Dr Howard opined that this was something that Mr Vickers had already experienced in his work in the hospital and was able to take on and predict. He believed that people with diabetes were able to predict those things and were able to adapt:
“I put it to you that the biggest distinction between working as an ambulance officer in the field and working in a hospital is that one is a controlled environment as compared to the other. Would you accept that?
I agree the environment is controlled but the amount of activity is quite variable and so the person with diabetes in that field would have to make plans and adjustments and changes according to the amount of activity.” [T59]
Finally, the doctor was asked questions about a diabetic “pushing the envelope” whilst driving and not taking anything to overcome hypoglycaemic symptoms. The doctor opined that this could happen but it would happen because of an error of judgment on the part of the person driving rather than from something coming out of the nature of the disease itself. He was referred to a report by a Dr Terence Diamond about accidents resulting from hypoglycaemia but was unable to say that the doctor had come to a conclusion that there was a higher incidence of motor accidents due to people having diabetes and therefore being susceptible to hypoglycaemia. In response to questions from me, the doctor indicated that he would expect Mr Vickers to take precautionary action as soon as the first indicator of hypoglycaemia came upon him, which would be some time before the serious debilitating affects. He also agreed that if Mr Vickers had not eaten for two and half or three hours or some period of time before getting a call that it would be good management and medically acceptable to grab a snack or take some glucose in those circumstances. He could eat a muesli bar.
Dr Adam provided a report dated 26 May 2006. Dr Adam is a fellow of the Australian College of Occupational Medicine and a fellow of the Faculty of Occupational Medicine at the Royal Australasian College of Physicians. He is the senior occupational physician at Health Services Australia. He is an expert member of a number of committees and a part time lecturer at the Queensland University of Technology in occupational medicine as well as at the Faculty of Medicine in the University of Queensland. Dr Adam did not examine or personally interview Mr Vickers. He reviewed the reports on Mr Vickers provided by Dr Kotulski and Dr Wong. Dr Wong had not personally examined Mr Vickers either. He noted Dr Wong had identified four matters which he believed would prevent Mr Vickers from safely serving as an ambulance officer.
“i)Work in all types of locations including remote, isolated and dangerous locations.
ii)Rotating shift pattern likely to interfere with his current level of control. The Ambulance Service cannot guarantee ready hygienic access to his insulin and testing equipment.
iii)Because of the unpredictable nature of the work with a requirement to participate in emergency responses at short notice it is therefore not possible for Mr Vickers to plan his food and insulin intake to successfully navigate that shift.
iv)Mr Vickers is expected to be able to work in isolation and irregular shift patterns.”
Dr Adam also took into account the affidavit evidence of Mr Graham McCarthy, Manager, Education of the Ambulance Service, which stated that ambulance officers are required:
· To drive an ambulance vehicle under emergency lights and sirens;
· to work on their own in all types of location and heights;
· to work in close proximity to machinery, fire, chemical and other contaminants;
· to work rotating weekly shifts of two 14 hour night shifts, and two 10 hour day shifts. This system involves them working for 4 days in a row and then having 4 days off;
· undertake a high physical workload (that is during a shift an ambulance officer may be requited to treat and transport up to 15 patients on a 10 hour shift);
· It is not uncommon for the night shift to be extended by one hour, or, on rare occasions more, hence making a 15 hour or more shift. It is not uncommon for a 10 hour days shift to be extended by 2 hours to make a 12 or more hour shift.
Dr Adam noted that Mr McCarthy had stated in his affidavit that ambulance officers were not able to take formal meal breaks during their shift around 20 to 40% of the time and that the opportunity to take a break from duty is completely unpredictable, often lasting for five to six hours.
Dr Adam’s report then went on to discuss the onset of a hypoglycaemic event and stated that there were three problems confronting any diabetic who might seek employment from the Ambulance Service. These were:
(v)The ability to meet the standards set out for commercial drivers in “Assessing Fitness to Drive, 2003”. In this case obtaining a conditional commercial licence.
(vi)The difficulty in managing shift work, particularly longer shifts. It was in this paragraph that Dr Adam had made reference to “some early morning hypoglycaemia” found in 2001.
(vii)The unpredictable nature of the work with consequent difficulty in anticipating and planning regular meals. He pointed out a particular concern whereby Mr Vickers might have taken insulin in anticipation of a meal that he was unable to complete before being called out on a job.
Dr Adam was also concerned that if Mr Vickers relaxed his diabetic control to ameliorate the risk of hypoglycaemia he stood a chance of accelerating end organ damage and made particular reference to the diabetic retinopathy found in both eyes. He concluded:
“I consider that on the evidence available on 13 June 2003 Mr Vickers was unable to carry out the duties as an ambulance officer and concur with the earlier advice offered by Dr Wong. Evidence at that time indicates that even with diligent and informed management Mr Vickers has had some difficulty in managing his diabetes while performing shift work and the particular circumstances of ambulance service could only service to make diabetic control more difficult with an increased risk of hypoglycaemia.” [Report, 26 May 2006]
In examination in chief Dr Adam explained an important part of the work of a specialist in occupational medicine in the following way:
“I first started working or practising in this field in 1979 and there's clearly from time to time a requirement to assess someone who has a particular illness or disease or disability to assess their ability to do a particular task. It's often a matter of matching up the particular disability or the problem that a disease might cause and matching that up against the specific demands of a particular job.” [T87]
In regard to his ability to make these assessments as compared with that of Dr Howard the witness stated:
“Well I'm sure that Dr Howard would be more able than myself to provide Mr Vickers with good advice about how to adjust or manage his treatment and manage his condition but I believe I perhaps have a little more experience than Dr Howard in understanding what particular jobs might require and looking at a particular disability like diabetes and how it might affect someone's ability to perform a particular job or a particular task.” [T87]
Further, during the examination by Ms Anderson the following exchange took place:
“What would you say to the proposition that there was a blanket policy of persons with insulin dependent diabetes being excluded from employment as a trainee ambulance officer?–
I don't believe you can have such a blanket rule. I think there's always an obligation to carefully evaluate.
Now, in terms of what Health Services Australia does, what do you say as to whether Health Services Australia, in screening for the Ambulance Service of New South Wales, for employment as a trainee ambulance officer, adopts a blanket spot for policy of insulin dependent diabetics will be automatically excluded no matter what their individual assessment might be?‑‑‑
Well, I can certainly say that HSA doesn't have any such blanket policy.” [T92]
and then,
“Is there anything in the Health Services Australia material that you've seen that would suggest to you to believe that Dr Wong adopted such a blanket policy?
I wouldn't expect that he would and knowing Dr Wong as I did, I would be surprised if he did.
In so far as you're familiar with Health Services Australia policy, is there anything that you can see that was directed to treating Mr Vickers differently?
Only in so far as he was found to have a condition which required further evaluation but then people with a number of conditions require further evaluation. [T93-94]
These responses were taken up in cross examination by Ms Raper with which I will deal shortly. Before she dealt with that question a number of other matters were taken up with Dr Adam including the fact that he had not examined Mr Vickers and relied on the reports of Dr Kotulski and Dr Wong in relation to his assessment of Mr Vickers’ ability to undertake the work. Ms Raper pointed out to Dr Adam that Mr Vickers had provided responses to the concerns expressed by Dr Wong and Dr Kotulski, particularly how he would cope with eating on the job and how he would cope with shift work which were expressed as matters of concern:
“You would agree with me like in the circumstances we’ve just described about there are variances about the way that diabetes manifests, that any assessment of fitness is dependent on the individual and the individual assessment of that person?
Yes.
And that as part of that, factors such as having an understanding of whether Damien worked shiftwork or when he worked it and in your view whether it was during the night or during the day, would be relevant factors to be taken into account for the purpose of that review?
But again shiftwork is only a very small part of the larger picture and again that was a factor that may have contributed in some way to the increasing risk of hypoglycaemia but irrespective of any shiftwork, the risk of hypoglycaemia remained.” [T112]
Dr Adam accepted the evidence of Mr Vickers and Dr Howard that Mr Vickers had not had a hypoglycaemic event whilst in the workforce, that his retinopathy did not affect his sight and that he had previously managed the strains of shiftwork in a hospital environment without any ill effects. The gravamen of Dr Adam’s concern about the fitness of Mr Vickers was the possibility of him having a hypoglycaemic incident whilst driving or whilst treating a patient. He accepted that Mr Vickers did have his diabetes under control but expressed the view that:
“He is like the rest of us and subject to occasional human failings and might from time to time not have that available.” [referring to a muesli bar or glucose] [T123].
Dr Adam also expressed a concern about the dangers that might come from relaxing diabetic control in order to minimise the risk of having a hypoglycaemic attack would mean generally higher blood glucose levels that would have an affect that could result in end order failure.
After Dr Adam had again stated his concerns about the possibility of Mr Vickers having a hypoglycaemic event as a result of not being able to eat after taking insulin, Ms Raper commenced a series of questions at [T123]:
“These are all assumptions you have made without actually having any evidence of this happening to Mr Vickers, isn't it?
Well Mr Vickers hasn't been placed in that situation but there are other people who ‑ ‑ ‑
So you are basing it on your understanding of what might happen to him, not on the basis of what has happened to him in the past?
Yes because, I mean, if it happens the results can be catastrophic.
Yes, but there is no evidence before us to suggest that this has happened in the past with respect to Damien Vickers?
But he hasn't been faced with the combination of circumstances that may well confront him whilst serving as an ambulance officer.”
Ms Raper then goes on to remind the doctor of Mr Vickers’ service with the St John Ambulance Service and obtained confirmation from him that on the basis of his opinion Mr Vickers had controlled his diabetes in a diligent fashion, that he was receiving the best possible advice with regard to his care and management from Dr Howard and that he had had a history of shiftwork in an emergency situation as an accident and emergency nurse:
“And on the basis of those things, it would be fair to say that there would be no circumstances in which a diabetic would be able to perform this position on your view?
I think that's right….
But you have agreed with me just before that you cannot perceive of a circumstance where a diabetic would be assessed as being fit to perform the duties of ambulance officer?
There again, there are different sorts of diabetics.
But well, let's just deal with a type 1 diabetic. So with a type 1 diabetic, is there any circumstance where you think that a type 1 diabetic may be seen to be fit to perform the duties of an ambulance officer or a trainee ambulance officer?
Well, again I mean we have spent a lot of time discussing the individual circumstances of Mr Vickers.
So, when would there be a time that type 1 diabetic would be able to perform?
Well, I would believe, I certainly believe it would be very difficult.
So, tell me when, When would it?
Well I am trying to think of an example, I can't think of one at the moment.
And that's because, in your opinion, there would be no circumstance in which a type 1 diabetic would be signed off by you as being fit to perform the duties of an ambulance officer?
I believe that for the demands of this job, the risk is too high.”
The final witness was Mr Graham John McCarthy who is the Manager, Education of the Ambulance Service in New South Wales. He is also a paramedic, which is the highest qualification that an ambulance officer can obtain. I have already described the important areas of Mr McCarthy’s evidence in chief, being the description of the work that ambulance officers are required to undertake and the unpredictability of the shift work and mealtimes. One important factor that came out during cross examination concerned the training system for ambulance officers. There appears to be a difference between the training for registered nurses who are described as graduate entry and other applicants. Other applicants do a year’s training and then are made a level two ambulance officer. They stay at level two for two years before becoming a fully fledged graduated ambulance officer. Although the total training period is three years they are only described as a “trainee ambulance officer” for one year. A graduate nurse with accident and emergency experience would be a trainee ambulance officer for one year and would then be promoted to a fully graduated ambulance officer provided that that person’s progress during the year was satisfactory. This is what would apply to Mr Vickers. Mr McCarthy said that during the twelve months training the trainee would spend a minimum of thirty weeks on the road with a mentor, an experienced ambulance officer. He also explained that although ambulance officers travel in pairs they are frequently required to work alone and that they usually split up when they get to the scene of an accident so that one officer is able to remain in communication with base at all times.
Mr McCarthy was not called upon to give any advice in relation to the assessment of Mr Vickers:
“So when Damien applied for the job you weren’t called on by his medical – by the ambulance services medical doctors to describe what the job of a trainee ambulance officer were you?
No it’s part of recruitment, not education.” [T39]
Mr Vickers was questioned about the six main or essential requirements of the position that he referred to in his affidavit and responded that those six were six of probably the more extreme requirements of the position:
“And you said at the beginning of paragraph (7) if Mr Vickers were otherwise able to carry out the inherent requirements of the position do you see that there?
Yes.
But you haven’t conducted an assessment yourself about whether he is able to conduct the inherent requirements for the job have you?
No.”
Mr McCarthy’s concern, like that of Dr Adam, was the risk of a hypoglycaemic event occurring whilst Mr Vickers was driving the ambulance or assisting an injured person. He accepted that a diabetic who commenced suffering from hypoglycaemia could take glucose which would have an almost immediate affect and would raise his blood glucose so that the hypoglycaemic event would not occur. There was much debate about the ability of a diabetic ambulance driver to take glucose whilst driving at high speed and a lot about fumbling in pockets, unscrewing caps, taking the glucose and then waiting for it to work. Mr McCarthy was concerned that if an ambulance officer had to take his eyes off the road for 20 seconds it could cause danger to him and his partner (and presumably any passenger) but accepted that a delay of 20 seconds whilst treating a patient was not likely to have any real affects upon the patient.
Mr McCarthy confirmed that whilst all incoming trainee ambulance officers were expected to graduate through to become fully fledged ambulance officers, they would not always do so and that if there were problems with a particular candidate they hoped they would pick it up within the first twelve months. He felt that this was a rare occurrence, there was an attrition rate of approximately 1%. Interestingly, Mr McCarthy advised that there were no ongoing health checks for ambulance officers.
Discussion
By the time the parties came to submissions, the remaining relevant factual issues in dispute were: was there a policy, express or implied, that would exclude a person suffering from type 1 insulin-controlled diabetes from employment with the Ambulance Service of New South Wales; would the applicant’s impairment prevent him from carrying out the inherent requirements of his employment. These are the questions that need to be answered in order to establish whether or not there has been a breach of s.15(1)(a) or (b) of the DDA and whether the respondent is entitled to rely on the defences set out in s.15(4). These sections are reproduced below.
“s.15
(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a)in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
…
(4)Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a)would be unable to carry out the inherent requirements of the particular employment; or
(b)would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.”
It is not disputed that the applicant has a disability as defined in s.4 of the Act, nor that discrimination, as defined in s.5, would be unlawful if it occurred within the context of the arrangements made for the purposes of determining who should be offered employment by the Ambulance Service, or in determining who should be offered employment. Although I say it is important to make a finding as to whether or not a policy excluding persons with Type 1 diabetes existed, that is not to say that the mere existence of a policy will always found a cause of action under s.15(1)(a). As was pointed out in Holdaway v Qantas Airways Ltd (1992) EOC 92-395 at [7817], there may be instances where a policy of not employing persons with a particular impairment in particular positions would be regarded as reasonable in its application to an individual with that impairment: Cooper v Ford Motor Company of Australia (1987) EOC 92-191. Another example of a policy is the “rule of 60” considered by the High Court in Qantas Airways v Christie (1998) 193 CLR 280. In Holdaway the EOT made it clear that it accepted the view put forward in Cooper that
“an employer must investigate each case and cannot apply a general rule which would exclude a whole class of persons from employment because some members of that class may not be suitable employees.” [78,817]
This approach was applied by the EOT in Bugden v State Rail Authority of New South Wales (1991) ESC 92-360.
Holdaway was a case with very similar facts to the one before me. Mr Holdaway was a flight attendant who started work with Qantas in 1975 and remained in that position until July 1984 when he was diagnosed with having insulin-dependent diabetes. He was removed from flight attendant duties and placed on other duties until 1987 when he requested Qantas reinstate him. That reinstatement was refused because
“The director of medical services at the time of the hearing confirmed that the respondent company had had for at least twenty years an across the board policy that an insulin-dependent diabetic was ineligible as a flight attendant.” [Headnote]
Notwithstanding the policy Mr Holdaway was requested to go through a medical examination and in regard to that process the Tribunal said
“Although the blanket exclusionary policy was applied only after a medical examination of the individual applicant, that examination was irrelevant in the case of a person already diagnosed as, and known to the respondent to be, an insulin-dependant diabetic. The effect of the policy was very much the same as the respondent placing outside its premises a prominent sign announcing positions available for flight attendants but including words such as “insulin-dependant diabetics need not apply”. The policy of the respondent was all-embracing and inflexible. It existed well in advance of the time when the complainant made his request for reinstatement. It constituted part of the respondent’s arrangements made for the purpose of determining who should be offered employment as a flight attendant.” [78,813]
The applicant sought to convince me that I should imply that such a policy existed in the Ambulance Service from a number of facts. The first was that when the applicant was examined by Dr Kotulski there was no evidence that he was asked a series of questions about his personal situation, the responses to which were noted by the doctor who assessed him against the criteria for an acceptable candidate. When the doctor discovered that Mr Vickers was an insulin-dependent diabetic, he discussed this with Mr Vickers and then asked Mr Vickers to provide him with a history of his diabetes from his treating endocrinologist. A letter was handed to Mr Vickers to give to the doctor which stated
“On examination, the examinee was found to have history of insulin-dependant diabetes. Further info is required re: control, hypo/hyperglycaemic and lightly affects with shift work. Accordingly I’ve asked the examinee to attend the surgery for further consultation, investigation and treatment is required. Reports are requested from treating endocrinologist.”
This was responded to by a letter from Dr Howard which advised the type of medication that Mr Vickers was on and stated
“he…adjusts his dosages appropriately relating to his level of exercise and food intake. Damien maintains his HbA1(c) level in the very good control range for Type 1 diabetes. The last five HbA1(c) levels have been between 6.6 and 7.9%. The most recent in my records on 18 January 2002 was 7.6%. He has had regular complications assessments and has no neuropathy, retinopathy or nephropathy. He is hypoglycaemia aware and is sensible about management of such hypoglycaemia. Damien has no other auto-immune disease and has not been hypotensive in all of the many recordings of blood pressure that I have.”
Now it could be said that that letter doesn’t entirely answer Dr Kotulski’s questions. It makes no reference to shift work, for example. And one would have hoped that Dr Kotulski might have taken up with Dr Howard the particular concerns which he had and which it could be said that Dr Howard had not responded to. This did not occur. On
13 June 2003 a letter was sent from the Ambulance Service to Mr Vickers informing him that he was medically and physically unfit to perform the duties and requirements necessary for the position of trainee ambulance officer, due to insulin-dependant diabetes.
Mr Vickers then asked for a review of the decision and that was carried out by Dr Wong. Dr Wong did not ask to see Mr Vickers. Dr Kotulski had indicated in his risk assessment of Mr Vickers
“Insulin-dependent diabetes – does not meet requirements for unconditional commercial vehicle licence, and may have problems with glycaemic control with irregular shifts and meal breaks with emergency work.”
Dr Wong reviewed Dr Kotulski’s findings with the benefit of the further information from Dr Howard, the Mater Hospital and the
St. John Ambulance Service, which has already been discussed. He concluded that the requirement to work in isolation and with irregular shift patterns could upset Mr Vickers’ diabetic control and cause him to have a hypoglycaemic episode. If this happened both his safety and that of the population that he served might be compromised. He stated
“Furthermore there is no satisfactory way of managing his insulin usage if he were to work irregular shift pattern.”
Dr Adam’s evidence was given as an independent expert, although of course he worked at HSA along with Dr Kotulski and Dr Wong. He did not examine Mr Vickers either and he had no part in any decision relating to Mr Vickers. I am satisfied from his evidence that his personal view was that there were no circumstances in which an insulin-dependant diabetic could carry out the inherent requirements of the position of ambulance officer. But he did not admit to a blanket policy to this effect, and it must be remembered that HSA is independent of the Ambulance Service. There was no evidence that the Ambulance Service provided HSA with any indication of their views about insulin-dependant diabetics. And there is a world of difference between the honestly held views of medical practitioners which lead inevitably to a particular decision and an employer-sponsored policy, which would lead to the same thing. HSA did not make the decision about employment, it just recommended upon the employee’s suitability from a medical standpoint. The decision about the employment was made by the Ambulance Service. I do not believe that I could infer from the evidence that has been placed before me that the Ambulance Service has a blanket policy to exclude insulin-dependant diabetics from its employ as ambulance drivers. It might have had a policy to always accept the recommendations of its doctors, but that is not the same thing. In any event I would find that the views held by Doctors Kotulski, Wong and Adam were genuinely and independently held.
The arrangements which were made by the respondent for the purposes of determining who should be offered employment proceeded through a number of steps. The medical examination was one of the last steps. It follows the academic assessment and the interview. There was no suggestion that an applicant’s disabilities were considered at any stage before the medical. Mr Vickers entered into the medical on exactly the same terms as everyone else. He would only be “treated differently” by the Ambulance Service if there existed a policy which would not have allowed his disability to be assessed. Whatever one may think of the assessment and the manner in which it was carried out, unless it could be said that the failings resulted from an unshakeable pre-existing view, no discrimination could be found. I have no evidence about the views of Dr Kotulski or of Dr Wong and cannot infer such a view from the evidence I have as to their individual assessments of the applicant’s material. I do know what Dr Adam felt, but he was not part of the selection process. In those circumstances I am unable to make a finding that there was a breach of s.15(1)(a).
At an early stage in the proceedings I granted leave to the Acting Disability Discrimination Commissioner to appear in an amicus role and to make submissions. I have been greatly assisted by the presence of counsel on behalf of the Acting Commissioner, who particularly concentrated on the importance of distinguishing between discrimination in procedure and outcomes. The Commissioner appreciated that there was a clear potential for overlap between s.15(1)(a) and (b); Aiden v The Commonwealth of Australia (1999) HREOCA 4 (24 February 1999) 19, and submitted that s.15(1) moved through the key stages of the recruitment of a new employee to prohibit discrimination against a person with a disability at each stage so that s.15(1)(a) dealt with the pre-offer stage of the process, and s.15(1)(b) dealt with the actual decision by the employer whether or not to offer employment. Both Aiden and Holdaway supported the finding that there is a sequential element to s.15(1) which had been inserted into the Act for a real purpose.
“[23] This distinction between procedure and outcome is not merely semantic or academic. Rather it recognises that discrimination in the process of selection may constitute a discrete and tangible detriment. Even if ultimately unsuccessful, job- seekers are entitled to consideration of their application without discrimination. It can be observed that job-seekers may gain important skills through having their application fairly considered. For example, they may be able to seek constructive feedback on their application and identify areas of their skills or the presentation of their application which may need improvement. They may also be more likely to be given an interview which may provide a chance to develop interview skills and improved confidence.
[24] For people with a disability rejection of an applicant based, for example, on stereotypes rather than an assessment of merit, may also send a blunt message: don’t bother. Such a message may damage the confidence and self-esteem of a job-seeker and is contrary to the purposes of the DDA.” [Submissions of Acting Disability Commissioner]
The views which I expressed earlier about there being no general policy to refuse employment to diabetics constituted a finding that was required by the dicta in Holdaway, and also in Y v Human Rights and Equal Opportunity Commissioner [2004] FCA 184, where Justice Finkelstein cited Holdaway with approval. His Honour accepted that s.15(1)(a) of the DDA was designed to deal with the same circumstances as s.49B(1)(a) of the Anti-Discrimination Act 1977 (NSW).
“[33] The old s.49B(1)(a) (now s.49D(1)(a)) covers the situation of an employer who discriminates against a handicapped person without regard to that person’s individual characteristics. It covers that situation because it contemplates discrimination taking place before the employer has any knowledge of the individual characteristics of the handicapped person. Put another way, the “arrangements” which the employer makes for the purpose of determining who should be employed refers in particular to the circumstance in which the employer will decide who should be offered employment without regard to the particular characteristics of the person involved.
[34] Section 15(1)(a) is designed to deal with the same circumstance. It seeks to outlaw the established ground under which persons with a disability will not even be considered for employment. It is not apt to cover the situation where a particular individual is refused employment, or an interview for employment, because of that person’s particular disability. In my view Y’s challenge to the Commissioner’s approach on this aspect could not succeed.”
I found that this was not the situation with the Ambulance Service and that there was no evidence that the process did not take into account Mr Vickers’ individual characteristics. In those circumstances, even though the decision not to employ him was made before the end of the selection process, it is appropriate to turn to s.15(1)(b) and the defence thereto in order to assess whether unlawful discrimination has occurred.
The respondent accepts that it did treat the applicant in a discriminatory way when it refused to offer him employment because of his disability but relies on the defence found in s.15(4)(a). I say that the respondent “accepts” this because that was my understanding of the submissions made by Ms Anderson. But even if I have misunderstood her, I would find that the respondent decided not to offer Mr Vickers the opportunity to proceed to the next step in the selection process and thus determined who should be offered employment in a situation where a similarly qualified person without diabetes would been allowed to proceed to the next stage. This action constitutes discrimination under s.15(1)(b). What I am clear about is that Ms Anderson, on behalf of the respondents, has accepted that I am to make a determination as to whether or nor Mr Vickers is able to carry out the inherent requirements of the job, and the Service does not wish me merely to send the matter back to the selection panel so that it can make its own assessment. She accepts that such assessment was made and if I find it is wrong then Mr Vickers’ application should proceed.
The concession made by the respondent that the decision not to employ him was based on his disability allows me to concentrate solely on the question of inherent requirements. The first thing that has to be done is to identify what those inherent requirements might be. The applicant complained that they had not been properly particularised by the respondent. There is no obligation for the respondent to particularise the inherent requirements at the time of the alleged discrimination, but it should be done by the time the case gets to court: Commissioner of Police, NSW Police v Zraka [2005] NSWADTAP 1. Before me there were a number of things suggested. They are not placed in any order of precedence. It was suggested that the applicant might not be able to drive the ambulance because of deteriorating sight due to his retinopathy. Dr Howard’s evidence, which I accept was that the retinopathy does not affect Mr Vickers sight. It was suggested that the applicant could not obtain a conditional commercial licence. The conditional licences are a full licence issued, in the case of diabetics, subject to certain conditions relating to medical examinations, the ability to control hypoglycaemia and the absence of hypoglycaemic events which the respondent accepted, through the evidence of
Dr Adam, the applicant could comply with. There was a suggestion that the applicant would be unable to undertake shift work.
The respondent accepts that given the applicant’s previous experience undertaking shifts in the Mater Hospital that this concern no longer applies. But it is of the view that the requirement to undertake shift work could lead to a higher propensity for a hypoglycaemic event. In other words, the nature of shift work makes it harder for the applicant to control his blood glucose level, and this could lead to a hypoglycaemic event. The main concerns surrounding the shifts themselves seemed to be the possibility the shift could be prolonged. In regard to shift work Dr Howard stated in response to Dr Adam’s comments, noted at [14] of these reasons, that Mr Vickers’ “insulin routine is particularly appropriate for shift work” (report of Dr Howard, 19 June 2006). Dr Howard made other comments supporting Mr Vickers’ ability to undertake shift work as found at [15] of these reasons.
Further, during cross-examination, Dr Howard noted that
“…adjustment of the insulin and the food and so on is based on whether you’re on shift or not… And the adjustments that can go on during the shift are according to what happens. So, the same thing might apply to other occupations, and does, that people with diabetes undertake, and they are able to adapt.” [T-59]
The respondent did not refine its definition of the inherent requirements of the job in its further written submissions, but my reading of this document, which concentrates very heavily on the question of safe driving and the carrying out of urgent resuscitation methods at the scene of an incident, would suggest a formulation along the lines:
“The essential requirements of the position included, relevantly for these proceedings, the ability to drive an ambulance safely at all times including at times when it was necessary in an emergency to exceed the speed limit and to drive in other ways that would be contrary to normal road rules. The second relevant requirement would be to perform the paramedical duties of an ambulance driver in a manner that is safe for the patient, the driver and any other person involved in the incident to which the Ambulance Service had been called.”
This way of casting the inherent requirement seems to me to be in line with the authorities, particularly X v The Commonwealth (1999) 200 CLR 177 [50], where McHugh J said
“In my opinion these cases support in principle the proposition that, in determining whether a person with a disability is able to carry out the inherent requirements of particular employment, regard can be had to the health and safety of co-employees and others.”
His Honour had also said earlier
“[40] In determining whether the employee poses a risk to the health or safety of other employees (or other persons or property) ordinarily it will be relevant to have regard both the degree of the risk (in the sense of the chance of it being realised) and the consequences of it being realised (in the sense of the seriousness of the harm that will ensue if it is realised); CF Wyong Shire Council v Shirt (1980) 146 CLR 40 at [47]-[48] per Mason J.”
And in regard to risk at [41]
“[A]ny risk flowing from a disability cannot affect the employee’s capacity to carry out the inherent requirements of the particular employment unless the degree of the risk arising from the disability is increased or the consequences of the risk being realised and made more serious by reference to some essential feature or defining characteristic of the particular employment. If the particular employment requires the employee to work in close contact with others, for example, a disability of the employee may pose a real and constant risk to those other persons.”
Gummow and Hayne JJ in X [101] emphasised the importance of finding a causal relationship between the disability and being unable to carry out the inherent requirements of the employment. Also in X McHugh J expressed concern at the way in which the inherent requirement had been said to be that a soldier should be able to “bleed safely”, he preferred to describe the inherent requirement as
“The duty not to expose others to real risk of injury”.
Similarly, Gummow and Hayne JJ (with whom Gibbs CJ and Callinan J agreed) held in X that
“An employee must be able to perform the inherent requirements of a particular employment with reasonable safety to the individual concerned and to others with whom that individual will come into contact in the course of employment…Much will turn on the nature and size of the risks that are said to arise.” X at [109]
Properly read, X instructs a court to undertake a balancing act. It does not require that an employer guarantee the safety of the potential employee or others with whom he may come into contact. That approach would be far too exclusionary of persons with disabilities. Of course, the employer must have regard to the health and safety requirements that govern its undertaking. But where these emanate from a state legislature they cannot be prayed in aid to permit conduct which would be in breach of the Commonwealth DDA.
The respondent submitted that the nature of the applicant’s disability would render him liable to the risk of a hypoglycaemic event either whilst driving the ambulance to or from an incident or at the scene of an incident itself, in situations where if he did not receive help from his partner he would endanger the life of his partner, a patient or members of the public.
Whilst there is no doubt that the very nature of insulin-dependent diabetes makes any of these events possible, it does not mean that they are necessarily likely to occur. It is always to be remembered that we are dealing with an individual, not a class of individuals. That individual may exhibit some of the characteristics of the class but it is always necessary to look at his particular case and his particular characteristics when making the assessment. We know that Mr Vickers has a long history of control of his blood glucose levels. He has given evidence, which I accept, and which is corroborated by his endocrinologist, that he has never had a hypoglycaemic event during his employment. He has given evidence, which I accept, that when his blood glucose level is low he gets a unique feeling that something is not quite right. He has given evidence, which I accept, that there is a period of time between the onset of that feeling and the next stage in the symptoms of hypoglycaemia, which include sweating from the brow and hunger. Mr Vickers indicated at [T-23] that he had experienced trembling but it was not a usual sign, in any event it was only a slight shake in the hand. He was questioned about the feeling at [T-24], and indicated that it did not alter his ability to concentrate, although he agreed it would if it was allowed to progress. Mr Vickers admitted that he had got the first indication of low blood glucose whilst driving in his vehicle in his current employment but had then taken necessary steps to alleviate the situation. The necessary steps are in all cases the raising of blood glucose levels by ingesting sugar or a sugar substitute, such as glucose. There was a very lengthy debate surrounding the taking of glucose whilst driving. Mr Vickers had indicated that he always carried a tube of glucose with him and would squeeze it into his mouth in the event that he was subjected to the feeling which presaged a low blood glucose level. Not unexpectedly, nor unreasonably, this lead to detailed cross-examination about the possible dangers of taking glucose whilst driving an ambulance at a speed in excess of 100km an hour on the wrong side of the road, prior to attending an accident, or whilst treating a patient in a highly dangerous and confined environment.
I joined in this debate myself, at one stage suggesting that a tube of glucose could be left attached by Velcro to every ambulance that Mr Vickers was likely to drive. But after giving closer consideration to the evidence of Mr Vickers himself and Dr Howard, as well as that of Mr McCarthy, I have come to the conclusion that this would not be necessary. I say this for a number of reasons. Firstly, the evidence is that blood glucose levels fall when a diabetic has taken insulin but has not had the opportunity to partake of a corresponding sugar-raising meal. A person like Mr Vickers who controls his blood glucose levels well will ensure that he has had the requisite sugar intake so that the effect of that intake and the insulin is to keep his blood glucose level at a steady rate within the target range of his diagnosis, as Dr Howard deposed to him having done. Mr Vickers would work in shifts, he would know when those shifts commenced, even if he did not always know when they were to end. I infer from the evidence, particularly that relating to his past employment, that whenever he arrived on shift Mr Vickers’ blood glucose level would be in balance. Mr Vickers would anticipate that during the course of his shift he would have a meal break. I could understand that his insulin intake would reflect that probability. Clearly a danger would arise if due to the exigencies of his employment that meal break did not occur. But Mr Vickers would know when the meal break was planned, and because he is a person who maintains his diabetes in excellent control would be aware that if he was unable to take a meal at the time of his proper meal break he would have to take a substitute which would provide him with sufficient sugar to maintain the blood glucose level above that when indications of an oncoming hypoglycaemic event might occur. Dr Howard explained that this can be done by the eating of a muesli bar.
I am not prepared to make a finding that an ambulance officer is unable to carry a muesli bar around with him at all times. I was not given any indication of how long an average drive might take, but I accept the evidence from the respondent that ambulance officers are frequently called from one job to another. Notwithstanding this, I am of the view that the evidence still points to the ability of Mr Vickers to ensure that his blood glucose level does not drop to a level where symptoms occur.
But even if I am wrong in that and this might occasionally happen as, indeed, Mr Vickers gave evidence of in regard to his current employment, I am satisfied Mr Vickers is a person who would immediately recognise the symptoms and take countervailing measures. In regard to being required to take those measures at a time when he was treating a patient, I am satisfied that the evidence is that glucose ingestion and recovery would not take longer than 20 to 30 seconds. Mr McCarthy indicated that this was not likely to harm a patient (at [T-45]). Similarly, if the symptoms came upon Mr Vickers whilst he was driving the vehicle in an emergency, and I have to say that the evidence would indicate to me that this is most unlikely, I do not think it would be necessary for Mr Vickers to take his hand off the wheel and grab for the glucose mounted on a Velcro pad. I am satisfied that Mr Vickers could, without endangering the life of a patient on board, or a patient to whom he was travelling, bring the vehicle to a halt, ingest the glucose and pull out again, all of which might take between 30 seconds and one minute. Ambulance drivers, notwithstanding loud sirens and the ability to drive on the wrong side of the road, are as prey to the traffic jam or the pedestrian crossing as any other motorist. If a delay for one of these reasons has to be taken into account when driving an ambulance a short delay for a pause whilst glucose is ingested would not endanger the life of a patient.
I appreciate that Dr Adam’s evidence was to the effect that the necessity for shift work and the vagaries of that work, particularly the ability of the drivers to have regular meal breaks, were matters that would exacerbate the possibility of Mr Vickers’ blood glucose levels falling to unacceptably low levels, which might affect his judgment and endanger himself or third parties. He distinguished the work of an ambulance driver from a nurse in a busy hospital theatre, stating that the latter was a controlled environment. Dr Howard, on the other hand, thought that Mr Vickers’ ability to control his diabetes within the theatre environment was an indicator of his ability to do so in the less controlled situations in which an ambulance officer works. Generally speaking I would prefer the evidence of Dr Howard to that of Dr Adam, because although I have the greatest respect for Dr Adam’s qualifications in occupational health, an assessment of whether or not a person is likely to succumb to a hyperglycaemic event is better obtained from an endocrinologist. It is best obtained from an endocrinologist who has been treating the patient for some 17 years since he first was diagnosed as a diabetic. Dr Adam had never examined Mr Vickers, had never talked to him about the ways in which he managed his diabetes, and admitted to a view which would exclude all type 1 diabetics from employment as drivers in the Ambulance Service. This might be a counsel of perfection, but the authorities do not require that an employer guarantee the safety of its employees or persons with whom they come into contact. The Ambulance Service would certainly not aspire to that perfection. If it did if might give its drivers regular medical check-ups to see whether or not any of them are undiagnosed diabetics, persons likely to suffer heart failure or stroke, or have other debilitating disabilities that might endanger persons whilst they are driving vehicles or treating patients. The Service does not do this. It appears to be prepared to take a risk in the case of persons once they have been medically approved to enter its employment.
Having regard to the evidence I am of the view that the possibility of Mr Vickers suffering from a hyperglycaemic event, or allowing his blood glucose level to fall to a level at which his judgment is impaired, is such that in considering the test adumbrated by McHugh J in X at [43] the disability does not impose a real risk to the safety or health of other persons or of Mr Vickers.
It follows from the above that I do not believe that the respondent can avail itself of the defence set out in s.15(4) of the DDA and I am bound to find that it has unlawfully discriminated against Mr Vickers.
Relief
The applicant seeks an order that the respondent pay within 21 days general damages in the amount of $5000 in compensation for the injury to the applicant’s feelings and delay in processing his application to become a trainee ambulance officer by virtue of its breach of s.15(1)(b) of the DDA. The applicant is satisfied that this sum is not so low as to diminish respect for or trivialise the public policy implicit in human rights legislation; Wattle v Kirkland (No.2) (2002) FMCA 135. If the assessment had been left at large I would have taken a more generous view of the value of discriminatory behaviour, but if the sum of $5000 is what the applicant seeks I shall so order. The applicant next asks that I make an order that his application for the position of trainee ambulance officer proceed immediately to the next step in the respondent’s application process, namely stage six, probity screening. That is an appropriate order to make in the light of my findings. He then seeks that I make an order that if he successfully completes the remaining steps in the application process, namely stages six and seven, he be appointed as a trainee ambulance officer at the next intake. I do not think I should make that order. “The next intake” has not been defined. It may have a different meaning to both applicant and respondent. I would expect the respondent to put the applicant into training at the earliest possible opportunity after he has passed through all of the selection process. I would hope that the parties could agree on an intake between themselves, but in the event they are unable to do this, I would give liberty to apply for the purpose of making a more definitive injunctive order.
Finally, the applicant seeks the sum of $5000 by way of costs. I should at this juncture state that the applicant was assisted in this matter by pro bono solicitors and counsel. The solicitors came to an agreement with those for the respondent at an early stage that the sum of $5000 would be the limit of any costs claimed. The court would like to express its thanks and appreciation to those practitioners who undertake such pro bono work. The Acting Disability Discrimination Commissioner has also helpfully involved himself in these proceedings at no cost. The manner in which this whole case has been conducted is an example of the very best form of public service undertaken by the legal profession. I will make the agreed orders as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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