DISABILITY DISCRIMINATION ACT 1992
Number of pages - 86
ADELAIDE, 27-30 August 1996, 1-4 April, 8-11 September 1997 (hearing), 14 July 2000 (decision)
Mr M De Rohan, then Mr D Simpson for the Complainant.
Mr M Evans for the Respondent.
This is a determination relating to an inquiry into a complaint by Ms Chandrakanthi ("Chandra") Sluggett ("the complainant") against the Flinders University of South Australia ("the University" or "the respondent"). On 22 June 1994 a complaint was lodged with the Human Rights and Equal Opportunity Commission ("the Commission") dated 29 May 1994 by Ms Sluggett, pursuant to s.69 of the Disability Discrimination Act 1992 (Cth) ("the Act"). Ms Sluggett alleged she had been subjected to unlawful discrimination on the ground of her disability in relation to education, contrary to s.22 of the Act; in access to services, contrary to s.24 of the Act; in access to premises in relation to both her University work and a University required placement, contrary to s.23 of the Act; and that she had been subjected to unlawful harassment in eduction, contrary to s.37 of the Act.
On 29 December 1994 the Disability Discrimination Commissioner declined to inquire further into these complaints and this was confirmed by a Presidential review dated 21 September 1995 in relation to Ms Sluggett's complaints concerning harassment, access to services and discrimination in education. However Ms Sluggett's complaints in relation to allegations of unlawful discrimination relating to access to premises in respect of her University work and her placement were referred to a public inquiry on 12 January 1996, pursuant to s.76 of the Act. The delegate of the Disability Discrimination Commissioner ("the Delegate") provided a copy of his report with the referral of Ms Sluggett's complaint ("the Referral Report"). The Delegate made it clear that the complaint related to Ms Sluggett's allegations of discrimination contrary to s.23 of the Act only.
The public inquiry was conducted by me in Adelaide over a period of some months from August 1996 until September 1997. Leave was given for both parties to have legal representation and Ms Sluggett was represented initially by Mr Michael de Rohan, and subsequently Mr Denys Simpson. The respondent was represented by Mr Michael Evans. In the course of the inquiry I also conducted a visit to the premises at the University and the Migrant Health Service, in the company of Counsel and Ms Sluggett. Ms Sluggett gave evidence on two occasions and evidence was also given by five other witnesses in support of her complaint. The respondent called eight witnesses in support of its case.
I have taken a significant period of time in my consideration of the evidence in this matter and my determination of this complaint. I apologise to the parties for the inordinate amount of time I have spent in considering this matter: however the complexity and difficulty of the matter is also apparent from the number of witnesses and the length of the submissions presented in this matter and in the period of time over which the complaint was subjected to inquiry.
The aspect of Ms Sluggett's complaint referred for public inquiry related to her complaint that she had been subjected to unlawful discrimination on the ground of her disability contrary to s.23 of the Act.
"23(1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:
(a) by refusing to allow the other person access to, or the use of, any premises that a public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
(c) in relation to the provision of means of access to such premises; or
(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or
(f) by requiring the other person to leave such premises or cease to use such facilities.
23(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if:
(a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and
(b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access."
Section 4 of the Act defines "disability". Sections 5 and 6 of the Act define the discrimination to which the Act refers.
Section 5 is concerned with direct discrimination:
"5(1) For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
5(2) For the purposes of subsection (1) circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability."
Section 6 is concerned with indirect disability discrimination.
"6 For the purposes of this Act a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with the 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 the aggrieved person does not or is not able to comply."
3. THE EVIDENCE
At the outset of the hearing it was agreed by both parties that the Referral Report would be received in full into evidence. I take it into account.
Ms Sluggett gave affirmed evidence in support of her claim: she gave evidence at the outset of the inquiry (in August 1996), and was subsequently recalled when the inquiry resumed in April 1997. In support of her claim, evidence was also given by Mr Altino Fernandes; Ms Ann Buchan; Dr Roy Lee; Dr Jane Tillett; Mr Ian Thurnwald and Mr Andreas Venizilou.
For the respondent, evidence was given by Mr Jerry Moller; Elizabeth Vreugdenhil; Professor James Barber; Ms Rita Perkons; Ms Nina Troffa; Mr Peter Kunst; Ms Elizabeth Cooper and Mr Herb Meinel.
3.1 The Complainant's evidence
3.1.1 Ms Chandra Sluggett
Ms Sluggett gave affirmed evidence at the hearing. Part of her evidence is contained in her letter of complaint to the Commission dated 24 May 1994 in the Referral Report. Ms Sluggett was born in Sri Lanka and contracted polio there as a child. She was adopted in Australia at the age of ten and has lived in Australia since that time. She has disabilities as a consequence of polio, in particular mobility problems and a weakness in her left leg. As a consequence of this weakness her left leg and ankle are unstable and her walking capacity is limited. She told the Inquiry her main difficulties in accessing classes at the University and her placement at the Migrant Health Service ("the Health service") result from her mobility difficulties, but also to the development of Post Polio Syndrome, which was diagnosed in December 1993.
Ms Sluggett told the Inquiry she had enrolled for a Bachelor of Arts Degree at the University on a full time basis in 1988. She completed this in 1990. When she had initially enrolled she had disclosed on her enrolment form that she had a disability, and had received a letter from the University administration inviting her to attend at the Health and Counselling Service of the University, to be advised of facilities available for students with disabilities. She was given information about such facilities but had not found them helpful. She re-enrolled each year and the indication of facilities available for students with disabilities was available each year, but she said she did not remember obtaining one each year. However, she considered she did not need to seek information about facilities available for students with disabilities as she had already advised the University of her disability in her initial enrolment, and she did not consider herself "disabled" as such, and preferred to continue her studies without reliance on special facilities. Ms Sluggett was subsequently employed for a year (1991), and in 1992 enrolled for the Diploma in Social Administration. She said at the time of her enrolment in 1992 and in 1993, she did not realise that she could access the services available to students with disabilities, although she was aware of the Health and Counselling Service from her previous years at the University. She did not know of the existence of the Equal Opportunity Office within the University until the end of 1993. When she enrolled in 1992 she did not indicate to the University she had a disability as she had already informed the University. Ms Sluggett successfully completed her first year of resumed studies in 1992, passing all her subjects. Ms Sluggett told the Inquiry she had health problems in 1992, particularly toward the end of the year: these included shingles, tonsillitis and influenza, and she was hospitalised in August 1992 for breathing difficulties. Further, she had difficulties with her left arm, and at the end of the year she had difficulties with her hands and feet, and she had "pretty well decided" she would not resume her course. However, in early 1993 she felt considerably better and her symptoms had stabilised, and she decided to re-enrol.
Ms Sluggett considered many of her medical difficulties in 1992, including difficulties with breathing, chest pains, and headaches, related to "the whole issue of access". She said she did not think these symptoms resulted from polio: she had many tests, and her symptoms were never linked to polio in this sense. She told her lecturers she had difficulties in getting to buildings and to tutorial rooms, and that she had felt exhausted by the effort simply of getting to class. She said her arms ached, her legs "gave up", and she had chest pains.
However, in 1993 she decided to proceed with her studies. In first semester she had to undertake two subjects and an additional course of studies called "Fieldwork B", which would continue over the full year. This was conducted by means of a placement at the Health Service in Adelaide. All of her studies in 1993 presented significant difficulties of access.
To access the Social Sciences building where her classes were held on Mondays, Ms Sluggett had to climb a number of steps from the bus stop, first to the University Registry, and then more steps to the Social Science building. On Tuesdays, her lectures were held on the first floor on the Social Science South building. On Wednesdays, she had lectures in the same building and then tutorials in Social Science North: to attend the tutorial, she had to walk across the building, go down more steps, and then down a corridor and more steps. There were closer steps available for her to go down, but Ms Sluggett said she could not use those steps because the handrail was on the wrong side for her to use. When it was raining the steps were slippery. She conceded she could have used indoor stairs, but she felt safer on the outside stairs which were broader and to her, more accessible. Ms Sluggett said she found the amount of walking and climbing she had to do extremely exhausting, making it difficult for her to attend classes or when she did attend them, to function properly within the class.
In cross-examination, Ms Sluggett conceded she was aware of facilities within the University to assist students with mobility difficulties. She agreed when she enrolled in 1998 she had been advised there was a lift in the library, but she said she still had to get from the bus stop up the steps to the Registry level and walk across the plaza in order to get to the library. She was aware she could access the library at the fire exit, but she said that was impossible for her to do so: to get into the library at this level (the Registry level, which avoided most of the steps), she had to "bang on the door", and wait till someone answered to let her in. Then she had to go through the library to the lift. She said she was never provided with a key to this library door nor was she aware there was a buzzer next to the door, although she conceded it had been visible when we attended at the University to view the site. Ms Sluggett was aware there was a lift in the Registry building which she could also use, but she did not know of this until October 1993. She had believed there were no other lifts in the Social Science buildings, although she learned of their existence in December 1993. However, she did not believe there was a lift in the Social Science South building during the time of her studies, only in the Social Science North building. She had never received any information from the University about these lifts. Further, Ms Sluggett told the Inquiry although there was a "loop bus" at the University which she knew was free to students, she did not know until the end of 1993 this bus came into the car park to the door of the Social Science South building. She did not use the loop bus to move around the University and so she did not know where it stopped. She had only used it once or twice: once there were too many students on the bus for her to access it easily, and on another occasion she had to wait for it too long. Further, she thought the bus would drop her off on the loop road rather than in a car park, and she considered this was too dangerous because of her mobility limitations.
Ms Sluggett told the Inquiry she did not obtain a drivers licence until 1994. She owned an automatic car with her partner Mr Fernandes, and she had no difficulty in driving it, but she could not afford to have lessons for her licence. In 1992 she generally went to the University from her home by bus, but sometimes by car. In 1993 she generally went to the University by car, sometimes taken by Mr Fernandes and sometimes by another student friend. She was generally dropped off in car park four, next to the Social Science South building entrance. If she was dropped off here she did not have to climb any stairs to access the building. She did not have a parking permit from the University: she thought the University did not provide disabled person's parking permits, and she did not have an ordinary permit because it cost $40 per year for it which was too much as she was only in receipt of Austudy benefits. Further, their car was registered in Mr Fernandes' name, and she thought this might be a problem as he was not a student. She had never made any enquires concerning this.
Ms Sluggett said she did not like to raise the issue of her disability generally as she wanted to live an independent life and did not think of herself as a disabled person. Accordingly she did not generally access services for "persons with disabilities". She had not seen the University's "Guide for persons with disabilities" publication, and did not generally raise the matter with her lecturers. However as the year passed in 1993 she believed her access to her studies was severely curtailed because of her disability, and she believed the University was not assisting her. She believed that lecturers and the Health and Counselling Service should have told her what facilities were available to her, and in particular where lifts were. She had told her lecturers she was having difficulties because of her disability in that her "legs were giving up on me". Her physical difficulties were not simply the need to use steps in the University: it also related to the quite lengthy distances that she had to walk across courtyards between steps. The walking made her very tired because of her mobility difficulties and this made it very much more difficult for her to use stairs safely. Towards the end of 1993 she was also having difficulty with her arms, and she found it difficult to write. From about that time she was using a brace on her leg and had consulted Peter Sutherland, an orthopaedic surgeon whom she had consulted some years earlier.
In 1993 Ms Sluggett was required to undertake two fieldwork placements. Ms Sluggett told the fieldwork coordinator, Elizabeth Vreugdenhil, and her tutor Carol Irizarry she "couldn't cope to complete her studies without the University's cooperation", and she needed their "total cooperation" in accessing her fieldwork and her studies. She was assured this support and cooperation would be available. Ms Sluggett said her field work placement in first semester was "completely inadequate" to enable her to complete her studies, and another agency for her placement was found for her. The difficulty in this placement was not a matter of access, but because of the nature of the topic she was doing. She had to undertake additional work at the new agency on Mondays; on Tuesdays and Wednesdays she attended at the University; and on Thursdays and Fridays she attended her other field work placement at the Health Service, located in central Adelaide.
Ms Sluggett's fieldwork at the Health Service related to a topic she had selected, concerning HIV/AIDS and multiculturalism. Her supervisor was Dr Vreugdenhil, and she understood the Health Service was the only placement available where she could undertake this topic. She chose the research topic and the University provided the placement. However, she received no assistance from the University in relation to the placement. She met Rita Perkons at the Health Service and discussed if the placement would meet her required studies (Ms Sluggett said she did not discuss the matter with Ms Perkons, but rather, Ms Perkons discussed it with her). She agreed she was "keen" about the placement, and Ms Perkons showed her around the building. Ms Perkons did not ask if she had any difficulty with the stairs at the Health Service, and she did not indicate they presented any difficulty. However, she told Ms Perkons she had some difficulties with her disability, particularly since the previous year. She had gone up stairs to Ms Perkons' office and had been told that she would have an office. She saw a spiral staircase but did not go up to see the office was allocated to her. She agreed to undertake the placement and entered into a contract for this purpose. Ms Sluggett agreed to this not because she was keen to take the placement, but rather because it was the only placement that could be found. She agreed the area she had chosen was in a very limited area, and it was likely the Health Service was the only organisation dealing with the issue of multicultural HIV/AIDS.
Ms Sluggett said she raised the issue of her disability, and told Dr Vreugdenhil and Ms Perkons she had been ill and she might miss possibly up to three days at her placement due to illness. To obtain registration as a social worker she needed to have 70 days placement and because of this requirement and her indication that she might have some difficulties because of her disability, an additional three days was arranged in her contract. She did not raise any concern about the stairs at the building and she accepted her placement on the understanding she would be undertaking "direct practice" in the downstairs area.
Ms Sluggett said there were very significant difficulties facing her at the Health Service in terms of access. In the first place she had to travel into the city. The Health Service was some distance from the bus stop which meant she was tired by the time she got to the front door. Accordingly she had to arrange for a friend to meet her at the bus stop to carry her bag and computer to the building. The placement was arranged from March to November, two days a week during a semester, and full time during semester breaks.
Ms Sluggett said the building itself was old with no lifts. The Health Service was located on all three floors of the building, and her office was on the second (top) floor. There were steps from the ground floor to the first floor with brass/wood rails and metal tread. There was a spiral staircase from the first floor to the second floor where her office was located. The toilet was located on the first floor not the second floor. She said she had on at least one occasion fallen down the stairs: this had been seen by Ms Perkons, who "just laughed". There were difficulties with her office: she needed a footrest; there were difficulties with asbestos and dust; she was not able to open the window because there were road works outside; there was no air conditioning or heating.
In cross-examination Ms Sluggett said she did not understand she could have accessed her office by wide conventional stairs at the back of the building. She agreed she had been shown the stairs and they accessed the second floor, but she never used them. Her office on the second floor was next to the kitchen which was used by those working on the first floor, but Ms Sluggett said there was no drinking water there. She agreed in cross-examination there was a reverse cycle air conditioner in her office but she said it did not work properly. Ms Sluggett said early in her placement when it was hot, she had worked in the library at the Health Service as it was cooler, but had been told that she could not generally use it for her work. There was no computer in her office and she had to bring her own computer in. She said she had raised these difficulties of access with Ms Perkons, but Ms Perkons had not responded sympathetically and had laughed at her when she fell down the stairs. She had been helped by another member of staff on another occasion when she had fallen, but Ms Perkons had not shown her any concern about the stairs.
Ms Sluggett agreed she had met with her supervisor Dr Vreugdenhil at the premises but had not raised any of these difficulties. However she said she had been keen to end the placement and had tried to contact Dr Vreugdenhil on a number of occasions without Ms Perkons knowing. She had left messages on Dr Vreugdenhil's answering machine and at her office and had tried to see her, and believed she might have left a note for her at one stage. However, there had been no response from Dr Vreugdenhil. She believed these attempts were in about July when she was having the most difficulties. She met with Dr Vreugdenhil and Ms Perkons on 21 October 1993 and told Dr Vreugdenhil she thought the placement was not working out. She believed she had raised all of her difficulties with both Ms Perkons and Dr Vreugdenhil before this time and asked for some changes in her placement. Ms Sluggett merely wanted to leave the placement because she felt she could not cope, but she needed to complete it as it was a subject necessary for the completion of her degree. Dr Vreugdenhil prepared some modifications to the placement arrangements on 29 October after the discussion, and Ms Sluggett agreed to these amendments, although she made it clear in her evidence that she was not happy about them. She had been unable to speak to Dr Vreugdenhil about the problems she had with Ms Perkons, and so she "took whatever was offered".
The document prepared in response to the 21 October meeting enabled Ms Sluggett to undertake some of her work at home. However, this did not help her as she needed a computer to do her report. She had her own computer but no printer and so had to take her computer into the Health Service. The Health Service did not provide her with a computer, so she had to be in at her office to complete her report.
Ms Sluggett failed the placement subject (Fieldwork B). She told the Inquiry she had never understood the report had to meet any academic standard in order to pass: she believed all that was necessary was that she completed a placement. She understood Ms Perkons was to help her in preparing the report and she provided her with drafts. However, Ms Perkons had not provided her with assistance. Ms Sluggett said she did not know who the examiner of her report would be and had not assumed it would be Dr Vreugdenhil. She said she had no idea that the University was the body that determined if she passed the subject, but believed this was Ms Perkons' role, and she would simply receive an ungraded pass if she completed the days required for her placement. She agreed Ms Perkons had read and commented on her drafts and discussed this with her, suggesting changes, but she said she had not found these comments helpful. She saw Dr Vreugdenhil on 8 December (this was her first meeting with Dr Vreugdenhil after the 21 October meeting) for the final assessment visit, but Ms Perkons did not attend this meeting. Her final report should have been completed by this date, but although she had provided it to Ms Perkons for comment on 10 November, she did not receive it back until 14 December. She had not done any work herself on the report between 10 November and 14 December, and accordingly at the time of the final assessment meeting, initially scheduled for 8 December, she had not completed the report. A further meeting was arranged for 14 December and she had still not completed the report. At that meeting she had been told the report was not satisfactory and under those circumstances she would not pass the subject. Ms Perkons said it was unsatisfactory because she had not contacted any clients, and when Ms Sluggett had asked for an extension of time Dr Vreugdenhil refused. Ms Sluggett said Dr Vreugdenhil's reason for rejecting the extension was that she was going on holidays.
Ms Sluggett agreed she had not contacted any clients: some clients at the Health Service did not give permission to be contacted as part of the project, and others who had initially given that permission, withdrew it. She had not identified any other clients, nor raised this with Ms Perkons.
Ms Sluggett believed she had received no assistance in her difficulties at the Health Service. She did concede that she was offered Cab Charge vouchers by the Health Service and that Ms Perkons had suggested she caught a taxi directly to the Health Service and from there to her home. Ms Sluggett said she was reluctant to use the Cab Charge service and only did so once when she was not able to arrange any other transport from friends. However, she emphasised that although Ms Perkons was "persistent" in offering the Cab Charge, this was the only resource offered to her in relation to access.
In May 1993 Ms Sluggett had wanted to give up on her studies but got help from her friends to access both the University and her placement. She was therefore able to go on despite significant medical problems which she encountered. These largely comprised gynaecological difficulties for which she received treatment at the Women's Health Centre in North Adelaide. She had physiotherapy from October 1993 from Ms Ann Buchan and provided a report concerning this to each of her lecturers. At this time Dr Tillett became her general practitioner and Dr Roy Lee made a diagnosis of Post Polio Syndrome in December 1993. She sent booklets explaining the nature of Post Polio Syndrome to Professor Barber (the Head of School) and Ms Vreugdenhil, on 17 December 1993.
Ms Sluggett's results in 1993 comprised passes for the two first semester subjects which she undertook, but she failed her two second semester subjects and the year long Fieldwork B, which entailed the placement at the Health Service.
In early 1994 Ms Sluggett made a complaint to the Academic Registrar of the University appealing against the three failed grades which she had received. She submitted her failure was a consequence of discrimination against her because of her disability, and explained her mobility difficulties both within the University and in her fieldwork placement. In particular she advised medical specialists had suggested her health difficulties, which she considered had contributed to the failure in these subjects, may be a consequence of overexertion because of her work overload. Ms Sluggett complained her failure in Social Work in Selected Settings was due to her difficulty in accessing classes, as the lectures were held in different locations and she had been unable to access classes because she relied on public transport.
In relation to the subject Community Organisations, she submitted her failure was due to her incapacity to attend classes because of her disability. In relation to Fieldwork B where she was placed at the Health Service, she submitted she had "to accomplish this work on my own" and did not receive any supervision or assistance to cope with her disability. She submitted she had understood her work was being performed at the required level but her supervisor showed no understanding of her difficulties. She complained she had fallen on the stairs "on numerous occasions" and had suffered injury and had been unable to wear shoes. She also complained it was an additional difficulty in that no typing facilities were provided to her at the Health Service, and when eventually she had obtained access to the PowerBook belonging to the agency, after using it extensively she suffered hand strain which she believed was related to her Post Polio Syndrome. She advised she did not know why she had failed this subject other than that she did not complete her fieldwork report satisfactorily by the due date.
Ms Sluggett's complaints concerning her results were referred to a Student Appeals Committee of the University after consideration by Professor Barber, the Head of the School of Social Administration ("the School"). Professor Barber advised Ms Sluggett by letter dated 1 February 1994 he had spoken to each of the members of staff with whom she had dealt and had been advised appropriate accommodations for her disability had been made.
In particular he advised that, with regard to Social Work in Selected Settings, Ms Sluggett had sought and was granted an extension on her major assignment but had failed to submit it by the renegotiated date. Nevertheless the paper had been marked without penalty, but failed. Professor Barber arranged to have both Ms Sluggett's papers independently remarked, but this still resulted in a fail. In relation to Community Organisations, Professor Barber advised he accepted she had been given special consideration. Professor Barber told Ms Sluggett that Dr Vreugdenhil advised the quality of her research was only one of the grounds on which she was failed. Ms Sluggett had been given an extension of time to submit this paper but had taken time off work without notifying the agency; failed to submit a mid-placement report despite an extension; failed to supply process recording required by the topic; and in any event the quality of her social work practice generally was not of a pass standard.
Ms Sluggett's appeal was considered on 25 March 1994. The Committee considered the School had made special allowances for Ms Sluggett, but had not been advised of the true nature of her condition, namely Post Polio Syndrome, until after the due date for submitted work, that is, December 1993. The Committee was of the view Ms Sluggett had been advised of procedures for seeking special consideration, but noted that had her true condition been known, some further special consideration could possibly have been appropriate. Nevertheless the Committee resolved not to uphold Ms Sluggett's appeal as she had not demonstrated inadequate consideration had been given to her condition, or that the grades in her topic were inappropriate. The Committee suggested, however, Ms Sluggett should be given the opportunity to resubmit work for the three topics within a time frame acceptable to the School and Ms Sluggett, as if the true nature of Ms Sluggett's condition had been known earlier, some further special consideration may have been justified. However, the position of the School was that it was not appropriate to allow Ms Sluggett a further opportunity to resubmit the materials. Professor Barber advised Ms Sluggett of this on 11 April 1994, in particular indicating he believed the School had recognised Ms Sluggett's medical condition which may have impaired her performance, but this had already been accommodated. Ms Sluggett had been given frequent extensions, some of which she had not requested, but nevertheless her work was not of a pass standard. Further, Professor Barber advised two of the subjects she had failed were no longer offered by the School and no teaching staff for these subjects were available in the University. This letter confirmed Ms Sluggett had failed each of the three subjects in relation to which she had made her appeal.
Ms Sluggett told the Inquiry about her present circumstances. Because of her failure in the subjects she was unable to proceed to the work which she had anticipated. She is presently employed by ATSIC at ASO2 Level as a Project Manager: her present employment suits her medical condition and disability because there is a large range of accommodations available to her and considerable flexibility. Ms Sluggett had intended to complete the social work course in 1993 and had been offered a position at the Health Service from the end of that year, and had co-written an article. Because of her failure in these three subjects she did not qualify and so she could not take the job. Ms Sluggett said the medical circumstances impacting on her capacity to work full time were difficulties resulting from her Post Polio Syndrome, but also gynaecological problems.
Ms Sluggett said because of the Post Polio Syndrome she needed to pace her activities very carefully to conserve her energy and strength. She had to be careful all the time and was in constant pain.
When Ms Sluggett was recalled after a lengthy adjournment to give further evidence, she expanded upon her present medical condition, and in particular on the development of Post Polio Syndrome. She said her condition had become worse in 1993: her level of fatigue had increased and there were many more things she had been able to do in the past which she now found difficult. These included ordinary domestic and personal matters such as cooking, cleaning, walking and washing her hair. She said she needed help with all these sorts of things, otherwise she became exhausted and suffered considerable pain. Ms Sluggett said her condition began deteriorating in mid-1992 and she had begun to need to depend more on other people. Ms Sluggett said she had lived independently for ten to eleven years and had never needed domestic or personal assistance. However, by late 1992 she would fall quite a lot; could not walk regularly over any distance; and prior to undertaking any activities needed to prepare herself with some care. By mid-1993 she found it impossible to get onto a bus because she could not lift her leg, but prior to 1992 had always caught buses to get around generally. By mid-1993 steps were a very considerable problem for her. She carried her bag on her right shoulder and would try to balance and pull up with her right arm to assist the weakness in her legs. This was very difficult and her limp became more pronounced. She could no longer walk without support with a stick. That this deterioration in her physical condition left her with a feeling of desperation.
Ms Sluggett said in 1992-1993 she was in constant pain and took painkillers everyday. The pain made it difficult for her to sleep and she had difficulty breathing. She had pain in her neck, including migraines and tension headaches, which were "pretty bad" in late 1992, but became worse 1993. In 1993 she was diagnosed as suffering from depression and she sought assistance from a hypnotherapist whom she was still consulting at the time of the hearing, although he was not called to give evidence.
Since September 1993 she had used aids to assist with her leg, including braces and a walking stick. She said she preferred not to use the braces as this gave her considerable anxiety about her future. She said her disability and in particular the difficulty with falling meant that she could not attend to her religious duties: Ms Sluggett had been raised and practiced as a Buddhist, but her personal circumstances had now led her to question these beliefs and its meaning.
Ms Sluggett said her failure and inability to qualify as a social worker, as well as her Post Polio Syndrome, also impacted significantly on her own cultural activities. She said she was very interested in multicultural awareness. However, she now did not have a sufficient energy to pursue these interests and in any event because of her limited mobility no longer took any active part in either the Sri Lankan or the Buddhist communities. She said her social life was now extremely restricted and she rarely went out at all. She found social activities quite exhausting.
Ms Sluggett said she wanted to work in the social policy area and she was also keen to go back to Sri Lanka to find her biological family. She wanted to take every opportunity she could to be self-reliant and to help people in Sri Lanka. However, because of her difficulties with the University, her studies, and the Post Polio Syndrome, she now saw nothing in her future except as a welfare recipient, and it was clear at the Inquiry she found this an extremely distressing and depressing prospect. She felt she would never be independent again or return to undertake further studies. She said she now did not have the trust or confidence in her lecturers to go back to University.
Ms Sluggett relied on her partner Mr Fernandes, his mother and other friends for support for housework and mobility. She said as she realised how dependent she would be on others in 1993, she had become suicidal.
Ms Sluggett felt she had improved in some respects since 1993. She was more self-aware and understood her limitations better, and felt more easily guided by her medical advisers. She also gave some evidence about her future medical treatment and its costs. She takes regular painkillers but depends on natural therapy and hypnotherapy for her depression and anxiety and weakness in her limbs. She attends hypnotherapy as often as she can, generally once per week, but this costs $94.00 per session, and it is difficult for her to afford. She did not wish to take medication for her diagnosed depression. She also took a particular medication specifically for polio sufferers to increase her energy, but is anxious she may become dependant on this medication. She also uses oil for pain and massage and would like to access massages more often but is unable to do so because of the cost. She has consulted Ms Buchan, a physiotherapist, over some period of time but again cannot afford this on a regular basis because of the costs. Dr Lee bulk bills and she has expended other costs for her physical supports: in particular a brace for her leg, and a walking stick. She now has to wear shoes that come to her ankle in order to support her leg, and these cost $70.00-$90.00. Previously she had not needed any special shoes.
Ms Sluggett said she purchased a new car when she obtained employment as she felt she could not rely on public transport. She had previously used Access Cabs since 1994. Her car running costs, including her loan repayments insurance and fuel, was about $215-$250 per fortnight.
Ms Sluggett said she was unable to undertake her housework and needed to have someone one day a week to do this. She said she believed she would need this forever.
Ms Sluggett said she and Mr Fernandes intended to marry when they could afford to do so, but she felt her condition was stressful for him and placed considerable stress on their relationship because she was so dependent. She said presently they do not live together but will live together when they are married. Mr Fernandes is employed on a part-time basis.
Ms Sluggett has undertaken training for some other work for the Department of Social Security's Disability Rehabilitation Program. She had also attended WEA courses to assist her employability and fitness, which she had paid for herself.
Ms Sluggett provided the Inquiry with copies of her tax returns for 1994-1995 and 1995-1996, which indicated her taxable income and her social security payments. Her 1995-1996 tax assessment indicated her HECS assessment.
In cross-examination Ms Sluggett gave further details of her medical condition and her disability. She believed that she did not have any significant difficulties prior to 1992. She had fallen prior to 1992 but only rarely. She agreed she had seen Dr Willoughby, a neurologist at the Flinders Medical Centre, about a fall in 1986 and again in 1988: however, the fall in 1988 was not a consequence of difficulties with her leg but rather an accident. She had always had problems with her knee as she could not bend her left knee. She had commenced a rehabilitation course of physiotherapy with Ms Buchan in 1991, and at that time she had walked with a marked limp. At that time she was not studying.
Ms Sluggett said in 1989 she underwent some investigations for suspected epilepsy: she was referred to Dr Willoughby by her general practitioner at the time. Tests indicated some abnormality of brainwaves but no epilepsy, and she was not at that time suffering depression. Her next general practitioner did not treat her in relation to her leg: she said even though she was seeing Ms Buchan at the time she did not consult her GP about her leg. Dr Tillett became her general practitioner in late 1992 but she did not consult Dr Tillett about her leg or depression until 1996. She first saw Dr Lee in December 1993.
Ms Sluggett's left leg is three centimetres shorter than her right leg. In 1982 she had surgery for a tendon transplant. This operation was to enable her to have more control over her foot. In 1990 she had surgery to remove a lump under her left arm: at this time she was studying for her BA. She told Ms Buchan the lump came up under her arm when she had to be engaged in constantly pulling on the stair rails, although she said this had not been the diagnosis of the cause. She did not see Ms Buchan again until 1994 and Ms Buchan found the only deterioration in her condition was a slight reduction in her abductor muscles. Ms Sluggett has undergone other surgery: for appendicitis in 1980 and three operations for endometriosis in 1994 and 1995. Mr Sutherland had suggested she might need surgery when she saw him in November 1993 but this has not eventuated. She agreed she had indicated to Professor Barber she was awaiting surgery throughout 1993 but this was not in fact the case: she put this incorrect suggestion down to her poor English expression and the stress she was under throughout the year.
Ms Sluggett explained that initially she felt highly stressed in 1993 because of her difficulties in accessing material for her first placement project on Aboriginal aged care: the second aspect of her stress however, was the issue of her mobility. She had been stressed in her difficulties in understanding what was required for her written work and the difficulties in accessing lectures exacerbated this anxiety. She said she believed that her difficulties in understanding the course material and its requirements was a problem of access, not an incapacity to understand: she believed if she had been able to attend classes this difficulty would not have existed. She agreed that in 1993 she had stress from other sources other than her leg.
Ms Sluggett said she had been diagnosed with depression in 1994 and she believed she may have been suffering from depression prior to the diagnosis. She was unable to say when it began.
Ms Sluggett told the Inquiry of considerable stress which followed her "sharing of the dilemma of being an adopted child and disabled" with her class in May 1993. She said this was the first time she had publicly discussed these issues which were fundamental to her. This discussion created personal problems for her because it had revealed a significant personal issue which she found difficult to deal with, however, she did not regard it as a major issue and did not receive any "therapy" in relation to it, other than a "debriefing" from her tutor, Ms Carol Irizarry. After this she took time off study because she felt embarrassed to go back to the class after her personal revelations: she missed three classes. She also missed classes on "table reading" related to her research design subjects. She agreed this discussion had stirred up considerable trauma for her, resulting in her missing classes. She said after this her disability "became a big issue".
Ms Sluggett also told the Inquiry she had owned two other cars prior to the new car which she had recently purchased, since about 1990. She could manage an automatic car with little difficulty. She then owned an automatic car jointly with Mr Fernandes: the car was registered in his name but she had contributed to its purchase. Mr Fernandes still has this car and she has the new vehicle which she purchased when she commenced work.
Ms Sluggett told the Inquiry she did not have any medication for her fatigue, apart from a medication to increase endurance which she had taken for a little while. She felt this had helped her energy but she then did too much which caused pain, and ultimately worsened her condition. She was keen not to rely on drug treatments until absolutely necessary. She was taking no medication for anxiety or depression, although some had been prescribed, because she was concerned that she may have seizures or become addicted. She believed she was learning how to manage her condition but it has not improved. She was walking much shorter distances now than she had in earlier years, although about the same as in 1994. She was learning to recognise when she was over using her muscles and learning when to stop and not to attempt things, and how to conserve energy so she could do more things: if for example she spent a day at this Inquiry, she did nothing else in order to conserve her energy to do so.
Ms Sluggett attended the view held at the Health Service on the day before she gave this evidence: she agreed she had been able to walk up and down the staircases at the Health Service but said she felt exhausted and had a great deal of pain the next day. She said she used her walking stick but not all time she did not use callipers.
Ms Sluggett said she had first consulted Ms Buchan in 1991 and believed she had seen her about ten times. She did not see her again until about June 1996. Ms Buchan had recommended exercises in 1991 specifically for the strengthening of her left leg. Ms Sluggett said she did these exercises but "only to my capabilities": she did not do them if she was tired as everything she did depended on her ability at the time and how strong she felt. Ms Sluggett said she had initially been to see Ms Buchan because of problems with her studying and the difficulties she had had at the University. She was not able to assess whether Ms Buchan's assistance had been helpful, but thought that she had improved.
Ms Sluggett said she used a brace but found this unsatisfactory because it kept rolling down. She also stopped using one because she could not afford to do so. She continued the exercises given by Ms Buchan but only when she could. Ms Buchan had advised her to undertake the exercises on a daily basis but Ms Sluggett could not do this because she felt too tired. Ms Buchan had also suggested shoe build-ups but Ms Sluggett stopped wearing these in 1993.
Ms Sluggett said she had never considered herself disabled until the end of 1993. It was at this time she accessed the University's disability service.
Ms Sluggett said she had never understood she needed to ask for an extension of time for submitting University assignments, or that she needed to ask for this prior to the due date for the work. Nor did she understand any issue of disability should be referred to in the information provided to the University in support of an extension for medical reasons. Nor did she understand an examination might include written assignments. However, in June 1993 she approached the Student Union to obtain information about her rights and obligations under the University's assessment policy.
Ms Sluggett told Professor Barber in her letter of 17 December 1993 she believed the reason for her failure in her subjects was her inability to access lectures on the particular topic. She said she had discussed this with the lecturer (Ms Healy) and had been told that she could not tape the lectures. She conceded she understood that it was permitted to tape lectures, but said she was required to provide her own tape recorder and make arrangements. She said she was unable to do this. She believed her particular circumstances were not taken into account by these requirements. It was these issues that she pursued in her appeal to the Student Appeal Committee. Ms Sluggett was not clear as to whether she had missed classes in these subjects or whether it was a matter of not being able to take notes in the classes, but she agreed she did not submit either of her papers in the subjects Social Work in Selected Settings by the due date. However, she agreed she had not been penalised for being late. She also obtained an extension of fourteen days (although she had asked for three weeks) in her Community Organisations subject, and she failed Fieldwork B in 1993 (this was the subject relating to her Health Service placement).
3.1.2 Anne Buchan
Ms Buchan gave sworn evidence at the Inquiry. She is physiotherapist who has been treating Ms Sluggett since 1991. Ms Buchan gave evidence about her treatment of Ms Sluggett; her observation of Ms Sluggett's deterioration; her knowledge of the development of Post Polio Syndrome; and her understanding of the circumstances in which Ms Sluggett was required to undertake her studies in 1992 and 1993 with the respondent.
Ms Buchan first saw Ms Sluggett in 1991 and had understood Ms Sluggett was seeking advice to strengthen her leg and to generally improve her fitness level, on a referral from the Commonwealth Rehabilitation Service. Ms Buchan said Ms Sluggett complained she had several falls due to a weakness in her left leg. She described Ms Sluggett's leg at that time as "mildly weak" and she had provided a short term strengthening program which improved the strength of Ms Sluggett's leg. Ms Buchan said there was some doubt as to Ms Sluggett's medical history. She had a limp and a short leg with surgery at age twelve. It was understood she had an illness when she was about eighteen months old, but there was little medical history available in relation to Ms Sluggett prior to her arrival in Adelaide at the age of about twelve. However, Ms Buchan believed Ms Sluggett had a "polio leg": it was shorter, with marked muscle weakness, and there were no joint problems as might be expected if it resulted from a head injury. In 1991 pain was not in issue for Ms Sluggett, nor did she have any significant joint problems. A lot of walking at that time was not advisable for Ms Sluggett because of her short leg: this could lead to an imbalance in her pelvic and spinal area which would lead to more strain on her leg joints and overcompensation on her good side. This might in turn lead to a need for joint replacement in the future and severe pain management. Significant pain can also lead to depression and a lack of concentration because of the need to cope with the pain.
In 1991 Ms Buchan did muscle tests on Ms Sluggett. The main concern was Ms Sluggett's difficulty in controlling her knee. The tests indicated a minor weakness in the iliopsas (front of hip); significant weakness in the hamstrings (to enable the bending of the knee); some weakness in the quadriceps which enabled her to strengthen her knee (this improved after the strengthening exercises); and other tests indicated quite marked weakness generally in Ms Sluggett's left leg. Ms Buchan said this weakness is quite apparent from the marked atrophy of Ms Sluggett's leg.
Ms Buchan saw Ms Sluggett twice in 1991, and again saw her in 1996 to reassess her for this Inquiry.
Ms Buchan saw significant differences after this five year gap. Ms Sluggett's abductor muscle (the muscle along the hip that controls balance) had lost about fifteen per cent of its strength which was quite significant, because this could significantly affect Ms Sluggett's stability, and it might lead to pain in her leg and possibly cause difficulties in her neck leading to headaches. Further, Ms Sluggett at that time complained of major fatigue, sleep loss and stress. She was in significant distress at the time of this consultation. Her left leg was considerably thinner and there was even less strength in her knee. Ms Buchan believed the symptoms with which Ms Sluggett presented in 1996 indicated Post Polio Syndrome. She considered the weakness in the abductor muscle which was apparent in 1996 was quite significant because this meant Ms Sluggett could not take all of her weight to keep her pelvis level, which would increase her limp and cause fatigue and difficulty. Ms Buchan said unless there had been any other factors present she would not have expected such significant changes in Ms Sluggett's condition over a five year period. By 1991 it was clear Ms Sluggett had developed long-standing means of coping with her weakness in her left leg and despite her limp walked quite well. However, Ms Buchan believed she would have warned her even in 1991 not to go to the University because even at that time she would have taken the view the conditions at the University would create too much difficulty and stress for Ms Sluggett because of her difficulties in climbing and walking. Ms Buchan said the difficulty at Flinders University was not just the stairs or just the walking, but the combination of a considerable amount of stair climbing and walking over long distances. Without the combination there would have been no difficulty, but with prolonged walking and climbing it was inevitable there would be a problem at some stage. Ms Buchan was aware of the condition Post Polio Syndrome in 1991 but did not draw Ms Sluggett's attention to it at that time: on her observation of Ms Sluggett in 1991, she did not have Post Polio Syndrome, and she was not aware Ms Sluggett was intending to attend the University (nor that she had been there).
Ms Buchan said in 1996 Ms Sluggett told her of the lump in her armpit. Ms Buchan said this lump was consistent with Post Polio Syndrome and as resulting from tendon irritability. Had she known of the lump in 1991 this would not necessarily have led her to diagnosing Post Polio Syndrome because at that time there were no other symptoms of the syndrome. However, had Ms Sluggett indicated the lump was a result of "constant pulling on stair wells", this would have suggested to her significant physical activity in use of stairs which she would have seen as problematical for Ms Sluggett.
Ms Buchan understood Ms Sluggett had undertaken a full-time course at the University in 1993 and was required to attend at the University every day and on a daily basis (up to three times a day). Ms Sluggett was required to walk the route from the Registry to the lecture theatre, requiring her to negotiate numerous flights of stairs and relatively long distances walking. Ms Sluggett had shown her the route which she was required to take and Ms Buchan understood it was necessary for Ms Sluggett to move round quite frequently. Ms Buchan's view was that the intensity of continual walking up and down stairs even twice a day would have been too much for Ms Sluggett because of both the distance and the numbers of stairs. Doing this regularly on a daily basis would have presented significant problems for Ms Sluggett.
Ms Buchan was also present at the view at the Health Service. She was particularly concerned of the spiral staircase at the Health Service and believed Ms Sluggett should never have used this, even once. The difficulty was that the treads were not of a consistent width and (for Ms Sluggett), the rail on which she could steady herself was on the "wrong" side (that is, it was on her weak side).
Ms Buchan told the Inquiry that Post Polio Syndrome was a recently observed phenomenon. Its first real recognition only came at about 1986 and there was no formal research until the 1990's. However, there was now a great deal of research and it was a well-established condition which affected 30-40 per cent of polio survivors. Ms Buchan said Post Polio Syndrome generally led to a new combination of symptoms including new weaknesses, pain and fatigue. Research indicated its onset did not depend on age but can result from excessive strain and stress. It generally emerged from about age 25 on in polio survivors. Ms Buchan had been aware of Post Polio Syndrome in 1991 when Ms Sluggett first consulted her, but she did not draw Ms Sluggett's attention to it as she exhibited no symptoms of the syndrome at that time. However, Ms Buchan was aware that someone with Ms Sluggett's disability should not do great deal of walking and she had advised Ms Sluggett of this.
Ms Buchan said if a person suffered from Post Polio Syndrome major changes to lifestyle were necessary. These might include leaving or reducing work in order to deal with fatigue and new weaknesses, and a reduction in stress which can lead to depression and sleep disturbance. She said if such lifestyle changes were possible the prognosis for a person with Post Polio Syndrome was quite good, and the increase in weakness could be considerably slowed down.
Ms Buchan said not all polio survivors develop Post Polio Syndrome, and she believed those who did so generally "push themselves" too much and this stress can lead to the development of the syndrome. In 1991 Ms Buchan did not believe Ms Sluggett was under the sort of stress that might trigger the syndrome as she was not engaged in any abnormal physical activity. However, there was a real risk at that time that if she pushed herself too much she might develop the syndrome, but Ms Buchan could not remember whether she discussed this with Ms Sluggett or gave her any material concerning the syndrome at that time.
Ms Buchan said using stairs in itself was not necessarily going to lead to Post Polio Syndrome. However, it posed a significant risk to Ms Sluggett if there was constant use of stairs in conjunction with significant walking. Ms Buchan said the main risk for Ms Sluggett using stairs was that she might fall. However, very frequent use of stairs putting her at risk of falling, with the compulsion to use them combined with the stress of people not understanding her difficulties, would lead to considerable physical stress, and Ms Buchan believed this increase in stress might lead to Post Polio Syndrome. In relation to Ms Sluggett's time at the Health Service, Ms Buchan was very critical of Ms Sluggett's apparent need to use the spiral staircase. She considered that although one flight of straight stairs four times a day would be stressful, it would not nearly be as stressful as the daily negotiation of so many stairs at such long distances at the University. The availability of a lift would not necessarily overcome Ms Sluggett's difficulties because it was a combination of use of stairs and extensive walking that caused the problem for her. It was only if a lift obviated the need to walk as well as the need to climb stairs that it would overcome the difficulty for her.
Ms Buchan also described her understanding of the requirements on Ms Sluggett. She understood from Ms Sluggett that she parked her car or was dropped off in car park two (at the very top of a steep hill) at the University. This area was inspected at the time of the view. Ms Buchan said Ms Sluggett told her this was where she was dropped off and that she had to walk down to the University from this car park, but Ms Buckhan did not know how regularly this happened. Ms Buchan did not inquire where the disabled car parks were when she went to the University with Ms Sluggett, but understood Ms Sluggett did not usually use them. She understood Ms Sluggett usually avoided the steps at the Registry area near car park six because of her disability, and walked up a ramp but this caused difficulty for her because it was used by cars. It was also a significantly greater distance for her to walk. Ms Sluggett told Ms Buchan if she moved between floors in the library she always took a lift, but there was no lift for her to access her lecture theatre in Social Security North. Ms Buchan believed there may have been a lift in the Social Security South building, but that it was a long walk for Ms Sluggett to get there. Ms Buchan agreed if a bus were available from the library to car park 4 (abutting the Social Security South building) this would avoid Ms Sluggett having to walk and would be of considerable assistance. Ms Buchan conceded there was a lift to the Registry building which had been viewed, and a lift which was in place from the end of May 1993, and agreed that use of these lifts would take out both distance and steps. However, there were still some steps and distances that Ms Sluggett would have to move and the only way to avoid the steps would be walking further. Ms Buchan said she understood Ms Sluggett attended University by different means - sometimes by car, sometimes by bus and sometimes she was dropped off. How she then accessed areas of the University depended on the way she had got to the University. Ms Buchan agreed if Ms Sluggett had been dropped off at the registry she could then access two lifts to take her to the library level; climb some stairs to get to the Social Security South building; then travel by lift to the level of car park four, and from 31 May 1993 use a lift to access the next level. However, Ms Buchan said although this mostly cut out stairs she still had to walk about 300 metres and this was a problem for Ms Sluggett. How often Ms Sluggett had to do this could lead to stress. Ms Buchan said Ms Sluggett would have to plan her day to minimise walking and exertions, and it was very hard to say what level exertion was appropriate, as it depended on what else Ms Sluggett might be doing. Using other means of assistance such as a wheel chair, callipers or a stick could at different times give assistance, but the most important thing for Ms Sluggett would be the ability to have frequent rests. Ms Buchan considered even using lifts and the bus within the University environment would create difficulties for Ms Sluggett. The lift in the refectory was one not easily accessed because it was around the back of a service area and was sometimes blocked. Ms Buchan said she had never seen the loop bus at the University and in any event there were difficulties because there were steps and ramps which were sometimes blocked. Ms Buchan said Ms Sluggett had shown her the disabled access to the library and had told her she did not use it because the only way to obtain access was to knock and Ms Buchan said she believed this would not be practical, as the knock might not be heard.
3.1.3 Dr Roy Lee
Dr Lee gave sworn evidence at the Inquiry and provided reports dated 24 march 1994 and 2 July 1996.
Dr Lee was appointed Director of the Rehabilitation Unit at the Queen Elizabeth Hospital in 1990. The Unit takes a holistic approach to function, and considered social and ideological issues as well as physical issues relating to function. The Unit deals with people with different disabilities, including polio victims.
Dr Lee saw Ms Sluggett first on 10 January 1994. She told him that in the previous two years she had been falling more and her legs had been getting weaker. She spoke to him about chest pain and general pain, difficulties in walking and swelling in the legs. She told him she could walk less than she had in the past. In the previous two years she had been taking a course which had involved a considerable amount of physical activity, in particular a lot of walking around the campus, going to placements and walking from the bus stop one kilometre up the hill of the University, with no opportunity to rest. This had led to overuse of her legs which he thought might have caused pain and a dropping off of the muscles. Dr Lee believed the amount of walking might have "triggered the problems", increasing weakness, pain and fatigue, which might have caused the Post Polio Syndrome of which these symptoms form part.
In his evidence Dr Lee considered photographs of the route which Ms Sluggett took at the University to reach her required destinations. He considered in general the length of the walk she had to take and the number of steps she had to negotiate, including irregular paving, limited hand rails, and a difficulty in using her stick, would all have constituted significant factors in the overuse of her leg, and this could have triggered the symptoms of Post Polio Syndrome. He said some people who had suffered polio might well have been able to undertake this regime with no difficulty, but once a polio victim started to get symptoms of weakness fatigue and pain, this should alert them to a problem of overuse.
Dr Lee also considered the circumstances at Ms Sluggett's placement at the Health Service. He considered the use of the spiral staircase to present very considerable difficulties for someone with an unstable leg who would therefore be fearful of falling. Negotiation of this staircase would be difficult and dangerous for Ms Sluggett, and he said he would not have been surprised if she had fallen on the spiral staircase.
Dr Lee considered once Ms Sluggett became aware of the exacerbation of her physical disability she should have negotiated with the University to change her work circumstances so she could conserve her energy, and in particular use lifts and take breaks wherever she was able to do so. It was essential for a person facing such exacerbation of their condition to pace their activities so that their conditions can be managed.
Dr Lee told the Inquiry Post Polio Syndrome generally occurs about thirty years after the original polio infection. About 50 per cent of original polio sufferers developed Post Polio Syndrome. There are different theories why the syndrome developed but it seems damage from overuse might lead to muscles dropping off nerves, and because of the destruction of nerves by the original polio infection, individual nerves might be supporting 50 or 60 muscle fibres rather than the normal lesser amount. Dr Lee said it was important for polio victims to pace their activities, keep active and set their activities in such a way as to allow muscle recovery. The severity of Post Polio Syndrome might well result from excessive use of muscles, such as in Ms Sluggett's case, continual walking up and down stairs. However, it was not possible to say whether Ms Sluggett would have had the same problems anyway, although it was clear overuse exacerbates the symptoms which constitute Post Polio Syndrome.
Because the condition is a syndrome, Dr Lee said it was difficult to see when it might have commenced. He believed Ms Sluggett had Post Polio Syndrome in 1993 but did not know when it had commenced as he had no detailed history of her medical condition. However, new weakness in muscles is evidence of a syndrome, and he believed on the basis of the history given by Ms Sluggett there had been a relatively recent onset. In considering Ms Buchan's assessment of Ms Sluggett, Dr Lee was unable to say whether Ms Sluggett had Post Polio Syndrome when first examined by Ms Buchan. Nor was he able to say from Ms Buchan's account of the tests she conducted in 1996 whether Post Polio Syndrome was present or apparent from those tests at that time. Dr Lee made it clear he was unable to identify any particular time when Ms Sluggett may have developed Post Polio Syndrome. As a cluster of symptoms, the syndrome developed over time, and because there was incomplete medical history in relation to Ms Sluggett, it was not possible to identify a time when it was clear she did not have the syndrome, and compare it with the time when he was satisfied she did have such a syndrome. In any event, this was not clear from the medical report before the Inquiry, in particular, comparing the tests carried out by Ms Buchan in 1991 and 1996. In considering Ms Sluggett's evidence that her leg "didn't work" in 1990, and that she had fallen down stairs and had difficulties with writing (the same problems which exacerbated in 1992-1993), Dr Lee considered it was possible she had already developed Post Polio Syndrome prior to 1992. He was unable to form the view the Post Polio Syndrome had clearly been triggered by anything which occurred at the University over the course of 1992-1993.
Dr Lee said there were a number of theories for the development of Post Polio Syndrome and no one knew why there was a thirty year gap in its development following the onset of polio, nor why it only affected a proportion of polio survivors. Overuse was a major consideration in terms of bringing on the symptoms although not necessarily the cause. Other theories are that the syndrome represents a continuation of the polio virus in the spinal cord, or there was immunological abnormality leading to inflammatory changes in the nervous system. The aging process itself may be of significance alone. However, Dr Lee's view was that a person presenting, as had Ms Sluggett in 1991, was a person who should take steps to pace his or her lifestyle and plan activities flexibly in order to reduce constant physical demands. Dr Lee said had he seen Ms Sluggett in 1991, he would have suggested she look at flexible and probably part time work such as the employment she had at the time of the Inquiry. However, it could not be disregarded that at that time Ms Sluggett could do more than she could when he saw her in 1991. However, if she had the symptoms she described in her evidence in 1991, and took no precautions to pace herself, he believed it was likely that she would develop Post Polio Syndrome. Without such precautions it was likely there would be a worsening of her disability. He believed the particular problem facing Ms Sluggett was a combination of distance, stairs, and not taking breaks, and it would have been better for Ms Sluggett to utilise lifts, even if this meant she had to walk further, because it was better for her to walk further along flat ground and take a lift, than to walk up and down stairs. Further, waiting for a lift could provide an opportunity for rest, although standing could be painful with her shortened leg.
Dr Lee also gave evidence concerning Ms Sluggett's prognosis and likely medical treatment. Post Polio Syndrome would not necessarily progress greatly so long as she paced her activities and managed her lifestyle. In particular, this meant she was not likely to work on a full time basis, and there may be a development of about one per cent per year, which he believed was not a real problem. He considered her pain would probably not increase, although she still had an unstable ankle and foot which needed to be stabilised. He believed Ms Sluggett probably had more limited physical activities than prior to the Post Polio Syndrome, and she would need more opportunities for rest even from non-physical work. Under these circumstances she was unlikely to work on a full time basis and further would need employment with some flexibility, involving lighter physical activity and an opportunity to pace herself.
He considered Ms Sluggett would probably need further medical treatment in the future to stabilise her ankle and knee. This treatment might include callipers or surgery fusing her ankle. She was also likely to have more degenerative problems with her back which would require physiotherapy treatment to reduce pain. There is little treatment for Post Polio Syndrome, although it was possible that drugs might become available in the future. He said if Ms Sluggett required callipers these would need to be replaced at a cost of about $15,000 every three to five years. Physiotherapy services (he estimated ten per three years) would cost approximately $30 each, and if she required an ankle fusion this would probably require a hospital stay of about ten days, plus the cost of surgery and physiotherapy, and possibly some medication. She would also require ongoing visits to her general practitioner.
Dr Lee emphasised he thought it likely Ms Sluggett's Post Polio Syndrome had been triggered by physical exertion. He thought it possible it had been caused during the period of her work at the University in 1992 and 1993 but could not rule out the possibility that the syndrome had already set in at that stage. He acknowledged one possible triggering mechanism might be overuse, and considered there could have been overuse at the University which could have triggered the syndrome. However, he emphasised these were all possibilities. However, he considered it was very likely the disability had increased by overuse, even if the Post Polio Syndrome was already in evidence by 1992: in this sense the Post Polio Syndrome may have been exacerbated by overuse during that period, rather than caused by it. He emphasised the whole course of pathology for Post Polio Syndrome was still theoretical and unknown, and in Ms Sluggett's circumstances this was made more difficult by the limited nature of her medical history.
3.1.4 Dr Jane Tillett
Dr Tillett has been Ms Sluggett's general practitioner since December 1992. She gave sworn evidence at the Inquiry.
Dr Tillett said Ms Sluggett first consulted her in relation to polio in September 1993 when she complained of problems with her left leg and explained her medical background. Ms Sluggett had described problems with walking and in particular with her knee giving way and pain in her left leg. In previous consultations from December 1992, Ms Sluggett had made no reference to any pain or difficulties in walking.
Dr Tillett said on examination in September 1993 she found significant weakness in Ms Sluggett's left leg. At her next consultation on 11 October 1993 Ms Sluggett had requested a letter for the University indicating she had health difficulties. Dr Tillett had written that letter and understood Ms Sluggett was appealing against a penalty relating to late assignments.
Dr Tillett described various consultations she had with Ms Sluggett between October 1993 and early 1994 when references were provided to Dr Sutherland, an orthopaedic surgeon, Dr Anderson, a neurologist, and Dr Lee at Ms Sluggett's request. Dr Anderson subsequently notified Dr Tillett he had diagnosed Post Polio Syndrome, and Dr Lee advised her Ms Sluggett's chest pain, of which she complained in January 1994, was likely to be part of the syndrome.
Dr Tillett also described numerous other consultations with Ms Sluggett, some of which were associated with Ms Sluggett's application for Disability Support Pension. This application was rejected and Dr Tillett said Ms Sluggett had significant stress related headaches which she believes were associated with the rejection and her appeal at the University against her failures in the previous years. She also believed Ms Sluggett had a reactive depression to the diagnosis of Post Polio Syndrome.
Throughout 1994 Dr Tillett consulted with Ms Sluggett on numerous occasions, many relating to gynaecological issues. However, for some of this time Ms Sluggett was complaining of headaches and associated tension, pain in her left leg and shoulder and other difficulties. Some of those matters Dr Tillett considered might well have been related to Post Polio Syndrome. Similar consultations continued into and through 1995 and 1996.
Dr Tillett agreed from 1994 to 1997 the main complaints for which she treated Ms Sluggett had been gynaecological. On 17 August 1994 Ms Sluggett had consulted her and complained of pain in her left neck and shoulder, and Dr Tillett considered anxiety was likely to be main the main cause: however, the cause of this anxiety might have been her gynaecological problems, or it could have been the Post Polio Syndrome.
Dr Tillett believed Ms Sluggett's Post Polio Syndrome had developed in 1991 to 1993. She believed Ms Sluggett would have faced considerable difficulty at the University campus: she was aware there were stairs at the Registry and at the library, and Dr Tillett believed the only way to overcome the difficulties would have been by the provision of a lift, although seats for resting would also have been useful. There were also difficulties if the ground was uneven, because of Ms Sluggett's unstable leg. Opening and closing doors could also present difficulties depending on how heavy the doors were. Dr Tillett said she understood not all polio victims would develop Post Polio Syndrome, but development of the syndrome was likely to occur where it did so about 20 years after the first infection. Ms Sluggett's development of Post Polio Syndrome at the age of 23 or 24 (in 1991) was consistent if she had suffered polio at the age of about 10 months.
3.1.5 Altino Fernandes
Mr Fernandes gave sworn evidence. He is Ms Sluggett's fiance.
Mr Fernandes said he had known Ms Sluggett for nine years and she had always had a disability with one leg and limped quite badly. Her limp has become more visible in the last five or six years. In 1990 Ms Sluggett was quite active and involved in a number of cultural events, especially in relation to the Sri Lankan Association. She played sports, went for walks and was able to manage this very well, with breaks. This practice continued until mid to late 1992 when it became increasingly difficult for her and she eventually stopped. In 1993 she was unable to carry out any of the social or sporting activities which she had engaged. This was because her leg had significantly deteriorated. He said Ms Sluggett seemed to suffer from physical exhaustion, lack of endurance, and overall pain. She had not complained of these matters in previous years.
Mr Fernandes said he and Ms Sluggett did not live together in 1992 or 1993 but he tried to assist her and sometimes gave her lifts to the University because she had complained it was difficult for her to catch public transport. He said he usually dropped her at the Social Science South building in the car park, adjacent to that building. He would also help her access the library by meeting her and carrying her books or bags to and from the library, and borrowing books for her. He said if Ms Sluggett travelled from Social Science South to the library around the lake, she would have difficulties because the ground was uneven and sloping. In particular this was difficult because it was uphill, and she had fallen on occasion, and had to stop frequently for rests. There were no seats in this area, but there were steps she was able to sit on.
Instead of going via the lake Ms Sluggett could take a different route which was more protected, but there were more steps to negotiate. Ms Sluggett had difficulties with the steps and sometimes tripped. He was aware there was a lift in the building which she sometimes took, but she generally would have to wait quite some time for it to come as it was a slow moving lift. She also had difficulty opening doors which were heavy. He also made other arrangements to assist Ms Sluggett, including doing her photocopying and taking in assignments for her.
Mr Fernandes was also aware of Ms Sluggett's placement at the Health Service. He had provided her with transport sometimes to and from the Health Service and on occasion had gone into the building to help her bring her belongings out, including her bag and her computer. He said Ms Sluggett had difficulty using the staircase to the first level and he saw her fall on that staircase three times. She had tripped on the spiral staircase once going up and twice going down. He also sometimes assisted with typing assignments.
Mr Fernandes said in 1988-1989 he and Ms Sluggett had shared a house and had purchased a motor vehicle together. They had subsequently bought an automatic car which she was able to drive. Mr Fernandes still has that car and Ms Sluggett has purchased another one. In 1990 they used to go for walks together: this was not regular, but even at that time she needed to rest and have breaks of a couple of minutes at a time. However, his first walk with Ms Sluggett when she was unable to depend on her leg was at the beginning of 1993.
3.1.6 Mr Ian Thurnwald
Mr Thurnwald was a fellow student of Ms Sluggett's in 1990-1993. He gave evidence on affirmation.
Mr Thurnwald said when he was a student at the University he always used public transport. He would alight from the bus outside the Administration Building, walk up the stairs across the plaza to the library and café; walk up more steps to the library; across a quadrangle, up stairs across another quadrangle, and up more stairs to the Social Science building. This was about five minutes walk with bags. It was not necessary to go through hallways, but it was sometimes quicker to do this. Mr Thurnwald said he understood there were lifts in each building, but he did not take them as it was quicker for him to walk. He did occasionally use the lift in the Social Science building, but he said it was "ancient and incredibly slow".
Mr Thurnwald said he sometimes walked with Ms Sluggett through the University in 1993. He said he would have to walk very slowly as Ms Sluggett found the stairs very difficult and would get tired and would have stop. She would say when she was tired. He had also walked with her in 1992 and found in 1993 she was very much slower and seemed "stressed out and having difficulty getting around". He described the climb up to the Social Science buildings as "a bit of a work out", and believed it would have been difficult for Ms Sluggett. Ms Sluggett had complained to him quite a bit about her physical condition in 1993, whereas in 1992 she had been "stoic", but in 1993 "in a lot of trouble and in pain".
3.1.7 Andreas Venizulou
Mr Venizulou gave sworn evidence. He has known Ms Sluggett since 1988 and he knew she had a difficulty with her leg as a result from polio. He had studied with her in 1992 and 1993.
Mr Venizulou said there were many sets of stairs from the Registry area up to Social Security South where most of the lectures and tutorials took place, and described this as "a difficult walk" with many sets of stairs and a variety of routes. He was unaware of any lift near the refectory although he knew there were lifts in the Registry, Social Science South, and in the library, and he knew a lift had been installed in Social Science North in 1992. He had rarely used the lift as it was "a small slow lift" and a bit out of the way to access. He agreed if the lift in Social Science South was used it gave direct access to the Social Science School offices.
Mr Venizulou said he often walked in the University with Ms Sluggett and she had difficulty in both 1992 and 1993, but was much slower in 1993. He said she had difficulties with all aspects of the route, but especially the stairs, and would hold on to the wall, and sometimes he had to assist her by holding her bag or her hand.
He said in 1992 two or three times a week he would give Ms Sluggett a lift to the University for lectures. The other two days a week they were attending their placements. In 1993 he would give her a lift to the University once a week. He would park, and he and Ms Sluggett would walk together to their lecture. He said in 1993 Ms Sluggett seemed tired and stressed and often would say to him, "I'm knackered", but he considered "we were all stressed".
Mr Venizulou said that he socialised with Ms Sluggett outside the University a few times in 1993, although Ms Sluggett seemed more tired than she had in 1992. However they rarely socialised now although he still sees her.
Mr Venizulou said from January 1994 to January 1995 he was employed at the Health Service as a social worker on a full time basis with a salary of $28,000: he is now receiving $35,000 as a social worker. He expects to continue in this area. He said he had seen Ms Sluggett at the Health Service using both the front stairs to the first floor, and the spiral staircase. She had walked very slowly up the stairs close to the rail. He had never seen her fall on the stairs.
Mr Venizulou said Ms Sluggett had changed in the years he had known her. She was always keen to do things in "a normal way" with others, although she would complain if things were difficult for her. He had commenced studies with Ms Sluggett in 1988 and she made complaints in the period 1988 to 1990 about various things she found difficult: however, her complaints increased in 1992, he believed because she had to walk longer distances as the building was further away. Mr Venizulou said Ms Sluggett's limp was far worse in 1992 than 1988, and it worsened again in the following year.
Mr Venizulou said in relation to his job at the Health Service, he had responded to an advertisement in about October prior to the completion of his final year. This had been during the year of his placement. He had finished all his assignments but had not formally completed the course. He was interviewed and a permanent position, subject to six months probation, was offered to him. He was not aware who the other applicants may have been.
Mr Venizulou said in 1993 he understood Ms Sluggett had personal problems which caused her considerable concern, and also had difficulties with her academic work in second semester.
3.2 The respondent's evidence
The evidence given on behalf of the respondent was from a number of employees from various areas of the University.
3.2.1 Jerry Moller
Mr Moller gave sworn evidence to the Inquiry. In 1992 and 1993 he was lecturer in Research Design and Community Organisations in the School of Social Administration at the University. He is qualified in the area of Policy and Administration, holding a Master's degree.
Mr Moller said his first dealings with Ms Sluggett were in 1993 when she was student in his Research and Design course. He provided as a matter of course material relating to the assessment scheme in the subject, setting out the dates on which assessment was due, weightings of the different aspects of assessment, and a full course outline with each assignment, described in terms of expectations. This documentation was available for all students: it was handed out at lectures and also left for students to collect, and was available throughout the semester. He met with Ms Sluggett in 1993 when she had sought clarification about her second assignment, and had a number of discussions with her. Mr Moller considered Ms Sluggett was trying to do too much in the assignment and was getting bogged down, and he made suggestions for ways in which she could focus more sharply. On none of these occasions did Ms Sluggett make any reference to any particular difficulties with her work or studies.
Mr Moller said Ms Sluggett was awarded a "P2" for this course and complained about this result. A "P2" indicates the student has not fulfilled the necessary criteria for part of the course. Mr Moller said Ms Sluggett had obtained reasonable marks for the first two aspects of the assignments she submitted, but her second two assignments brought her marks down overall. Her main limitations, in Mr Moller's view, related to the qualitative aspects of her assignments: she did not provide any statistical information or analysis, and was the only student who had not done so. Mr Moller then arranged special assistance for Ms Sluggett in relation to statistical work: he did not know whether Ms Sluggett availed herself of this assistance. Ms Sluggett spoke to him on 23 July 1993 concerning her mark for the subject and asked for it to be reviewed. He told her of the procedure for review and gave her a copy of the relevant documentation. He said her assessment was not a matter of a simple re-mark of one assignment, but of an overall review of her work in this course. Mr Moller also spoke to Professor Barber, the Head of Department, concerning this matter, and advised him there may be an appeal and explained the background.
In second semester in 1993, Mr Moller taught Ms Sluggett the subject Community Organisations. He provided a similar assessment and course outline as had been provided in relation to the first semester subject. Ms Sluggett presented a tutorial early in the semester and then sought and obtained an extension for submitting the written work. Mr Moller said this was not unusual for students who provided an early tutorial presentation, but Ms Sluggett did not submit the paper. Mr Moller wrote to her on 1 September 1993 concerning this, and subsequently Ms Sluggett submitted her written paper. There was some ongoing correspondence with Ms Sluggett through October about the latest date for which she could submit her materials, and some discussion concerning the examination, which was a "take home exam". Mr Moller said the arrangement was students would receive the examination at the final lecture and sign for it, and it had to be returned at a particular time and date. Ms Sluggett did not attend that lecture and Mr Moller sent her a copy of the exam through the registered mail. The arrangements for the exam were a two-week preparation period, and then the examination would be sat. Mr Moller said he had one application from a student seeking special circumstances to be arranged for her to sit the exam: this student had a repetitive strain injury and special arrangements as sought by the student were made.
Mr Moller conducted most of the lectures in the course with extensive reading lists in handouts available to all students. The overheads used in lectures were printed and given out at lectures, and were available at the School office. He also made arrangements with the University library to have five copies of all required reading on reserve, and an additional copy of all required reading was held in the School office and could be borrowed and photocopied by students there. Mr Moller said the class enrolment was 23, and although there was no roll kept he was aware Ms Sluggett attended "few" of the lectures. Ms Sluggett failed the examination of Community Organisations, with a mark of 47. Her exam paper had been double marked blind by another examiner.
Mr Moller was aware Ms Sluggett had a limp but not of any details of any disability. He made no enquires as to the cause of her limp or the difficulties which it might present to her: he told the Inquiry he believed this was the student's business, and if the student wished to discuss it with him she could do so, but that it was inappropriate to press this. Ms Sluggett did not raise any issue of a physical disability with him and he had no knowledge of it until the appeal on 27 July 1993 against the P2 grade for the Research Design course. Ms Sluggett had raised an issue of personal difficulties when she had spoken to him 22 July 1993, when they had discussed the possibility of her appealing against her mark: she had told him she had been adopted; that she had difficulties and problems in getting to the computer room; and that she had problems with her relationship and as a result sometimes was not able to get a ride into the University, and that it was difficult for her to catch the bus.
Mr Moller denied he had called Ms Sluggett an "undisciplined student", but said he had told her that her approach to her work was undisciplined, and that she needed to be more focused in her approach to research. He was not aware Ms Sluggett had been distressed by this conversation, and had not seen her leaving "in tears", although she clearly was not pleased. Mr Moller said Ms Sluggett's complaints to him about the difficulties she faced in undertaking his subject related very much to her emotional well being, rather than any physical disability.
Mr Moller said he did not believe there was any issue of Ms Sluggett's access to the library in her poor results in his two subjects. He said the whole class was aware of the arrangements about reading materials, through notification to the whole class and in a hand out available to the whole class. All required reading was clearly identified and all prescribed documentation was available in the School office, and the photocopier was just outside the office door. Material could not be borrowed, but could be photocopied. He believed Ms Sluggett's concerns where she spoke of the difficulty of access to University were simply in the context of seeking an extension for the submission of written material: when she sought an extension it was granted, but it could not be granted beyond 22 October 1993 as this was the final possible date.
Mr Moller said the computer laboratory was necessary in the Research Design subject. The laboratory is at the western end of the Social Science North building. The lectures were held in room 112 of Social Science South, and the laboratory was about 100 metres in distance away. He was completely unaware of any difficulty in accessing the computer laboratory, other than in a conversation he had with Ms Sluggett in July 1993, when she said her access card to the laboratory did not work.
3.2.2 Elizabeth Vreugdenhil
Dr Vreugdenhil was a lecturer in the School at the University in 1992, and in 1993-1994 was the Field work coordinator. In that role she had responsibility for Field Placement B as one of the coordinators. Dr Vreugdenhil gave sworn evidence.
Dr Vreugdenhil said she had responsibility for 22 students including Ms Sluggett. She had taught Ms Sluggett in 1992. The work for Field Placement B was necessary for practice as a social worker at the base grade level. Dr Vreugdenhil said the University provided an outline to supervisors for the assessment of students placed in their organisations: this set out the role of the organisation; general policies; the role of a social worker; and the skills expected of a student in such a placement. Dr Vreugdenhil said her function was to help to find placements, negotiate them with the organisation, set up a learning environment for students, make an appropriate match between the placement and the student, and to organise the contract between the placement organisation and the students. In the course of the placement she would attend and make an interim assessment, and would also undertake the final assessment.
Dr Vreugdenhil said she had received a report from the coordinator of Field Placement A concerning Ms Sluggett's performance in that subject. This was normal procedure in respect of all students. However, the previous coordinator was critical of some aspects of Ms Sluggett's work, and in particular her writing skills, and Dr Vreugdenhil discussed this with Ms Sluggett. She understood Ms Sluggett had taken up suggestions made for the improvement of her writing skills. Dr Vreugdenhil suggested the Health Service as an appropriate placement for Ms Sluggett, as she had asked for a placement which would deal with research in policy and this appeared appropriate. Dr Vreugdenhil made some preliminary arrangements with the Health Service but left it (as was normal practice) for Ms Sluggett to contact the Health Service and make arrangements to discuss her placement with Ms Perkons, who would be her supervisor there. A general arrangement was made between the University and Ms Perkons on behalf of the Health Service setting out the general arrangements including sick leave, insurance and dates of Ms Sluggett's placement was made on 2 April 1992. Dr Vreugdenhil described it as a "learning contract" where all the appropriate arrangements were specified and defined, including the work and the expectations of the student and the placement organisation. Dr Vreugdenhil said Ms Sluggett had spoken to her about public transport and indicated that although she had a car she had no licence and had to rely on public transport. Dr Vreugdenhil thought under these circumstances the Health Service was probably a particularly appropriate placement, being in the city and easily accessible by public transport. Ms Sluggett did not advise Dr Vreugdenhil of any concerns about access or the placement at the time of her initial discussions, or after her meeting with Ms Perkons, or at the time the agreement was made.
Dr Vreugdenhil spoke of a number of meetings she had with Ms Sluggett. She referred to a meeting earlier in 1993 with Ms Sluggett which involved Carol Irizarry and Michael Bull who had conducted the course in the first semester in that year which had required a field work placement. There had been difficulties with this placement and Dr Vreugdenhil had been called in to provide some assistance. The difficulty however had nothing to do with disability or access, but related to the provision of appropriate data. Dr Vreugdenhil also spoke of her mid-placement visit to the Health Service on 8 July 1993. This was a standard visit to see how things were going, and she spoke to Ms Sluggett and Ms Perkons. No complaint was made by Ms Sluggett at that time in relation to any difficulties with access or generally with the environment of the Health Service. Subsequently in October 1993 Ms Sluggett provided a letter to Dr Vreugdenhil in which she referred to difficulties with mobility and walking: this was the first Dr Vreugdenhil knew Ms Sluggett had any significant illness or disability, although it was apparent she limped, and she had referred to her difficulties with public transport. Dr Vreugdenhil approached Ms Perkons and discussed the placement with her in the light of this letter on 21 October 1993.
Dr Vreugdenhil said Ms Sluggett was not doing well in the second part of her placement and she had concerns that Ms Sluggett might not pass. Accordingly, at this visit she provided Ms Sluggett with tangible tasks to assist her and to assist her assessment. These were arranged with Ms Sluggett and Ms Perkons. Ms Sluggett agreed to them and an amendment to the agreement was signed with the understanding that if Ms Sluggett completed the tasks assigned she would pass. Dr Vreugdenhil said there had been difficulties with Ms Sluggett's report: Ms Perkons had provided comments to Ms Sluggett but Ms Sluggett had failed to pass it on to Dr Vreugdenhil.
Dr Vreugdenhil said Ms Sluggett made no reference to any difficulties with the stairs at their meeting on 21 October, but in particular referred to problems with public transport and consequential difficulties in attending at the Health Service. As a consequence it was agreed that she could work at home on some days, but the days she did this had be negotiated: she could not just turn up.
Dr Vreugdenhil said she was always available to her students: she spent a good deal of time out of her office, but she had voice mail and a message could be left there or by note, or in her pigeon hole at the School office. She had received no such notifications from Ms Sluggett as to difficulties she was encountering. If Ms Sluggett had advised of her difficulties, it was possible different arrangements might have been made. Alternatively, a different placement might have been arranged where the building itself did not present difficulties.
Dr Vreugdenhil said there was a further meeting with Ms Sluggett in December 1993. The second draft of Ms Sluggett's report was submitted but Dr Vreugdenhil considered it well below pass standard, as it was badly written and Ms Sluggett seemed unable to distinguish between her opinion and her professional views. She emphasised it was essential for a social worker to be able to separate her personal self and her professional self, and this was essential to the work expected on the placement. Dr Vreugdenhil said the report was not a borderline fail: it was well below standard. Under those circumstances, Dr Vreugdenhil's view was that Ms Sluggett had to re-do her placement of 70 days in order to reach the required standard for a practicing social worker. This was explained to Ms Sluggett at the meeting. Dr Vreugdenhil said Ms Sluggett appealed against this decision and Dr Vreugdenhil attended the appeal hearing within the University. Dr Vreugdenhil said because of her concerns, she had Ms Sluggett's report double marked: it was normal to have a failed paper double marked. Dr Vreugdenhil had been unaware that Ms Sluggett was appealing a failure in another subject as well.
Dr Vreugdenhil said she had been aware from the outset Ms Sluggett had a limp, but she did not know she had polio or any difficulties in negotiating stairs. Ms Sluggett clearly was able to ,make her way around the University and cope with the numerous stairs on campus. She understood all Ms Sluggett needed for her placement work was provided on site, and believed Ms Sluggett would not have been required to bring a computer, books or other materials to the Service. She was unaware of any difficulties Ms Sluggett had until the meeting of 21 October 1993, and Ms Sluggett then only referred to difficulties with public transport and that as the weather was cold she sometimes had pain in her legs which was exacerbated by standing and waiting for a bus. Dr Vreugdenhil did not understand there were difficulties with the stairs at the Health Service, but had wanted to talk to Ms Sluggett to discuss what the difficulties were. When Dr Vreugdenhil visited the service on 8 July 1993 for her mid-term visit, Ms Sluggett had met her and taken her up to her office up the spiral staircase. There was no mention then made with the difficulties with the stairs nor did Dr Vreugdenhil notice any difficulties.
3.2.3 James Barber
Professor Barber, Head of the School also gave evidence at the Inquiry.
Professor Barber first met Ms Sluggett in July 1993 when she came to see him to discuss her grade in Research Design for which she had received a P2. Professor Barber told Ms Sluggett of the procedure to seek a review of her grade and advised her of what to put in a letter of appeal. He subsequently received a letter of appeal from Ms Sluggett dated 3 August 1993 and approached the lecturer of the subject, Mr Moller, to explain his dealings with Ms Sluggett. Professor Barber formed the view Mr Moller had been very helpful with Ms Sluggett, and he then discussed the matter with the Associate Dean (Academic) to determine whether the mark could be retrospectively adjusted. The matter subsequently went to the University Appeals Committee.
Professor Barber had been aware Ms Sluggett had a limp when he first met her as it was immediately apparent. However, he did not know the cause of her limp and did not ask. He came to understand what her difficulty was as time went by because this became part of the basis of her appeal. However, it was unclear to him for some time what the nature of her impediment was in terms of work: Ms Sluggett referred to large numbers of issues, not all relevant to her disability. The issue of mobility and disability was one of several issues. Professor Barber asked Ms Sluggett for details of her problems and asked her to put this in writing and in particular how her disability might have affected her grade.
Professor Barber made arrangements for an extension for submission of material as requested; spoke to Mr Moller and the Associate Dean to arrange appropriate accommodations, and made Ms Sluggett's semester two teachers aware that she had a difficulty. Professor Barber said by the time he received Ms Sluggett's appeal letter setting out her difficulties in detail, her fieldwork placement had already begun and he made enquiries concerning it. However, he then discovered Ms Sluggett had seen the placement premises before she had agreed to the placement, and had wanted to be placed in those particular premises. Accordingly he did not speak to her to ascertain whether she had any particular difficulties there. Professor Barber said the only thing Ms Sluggett asked him to do was to arrange an extension for the submission of an assignment, and he had arranged this. He understood at that time Ms Sluggett had not made any complaint about her placement to her fieldwork supervisor. He believed the onus was on the student to do this, particularly when the student had inspected the placement premises and agreed to attend them.
3.2.4 Elizabeth Cooper
Elizabeth Cooper is the Head of the Health and Counselling Service at the University and she gave evidence on affirmation at the Inquiry. She described her role as the provision of support for students. The Disability Liaison Officer of the University reported directly to her. The Liaison Officer's role is to inform students of University policies about disabilities, including support services, and to support and advocate for students requiring accommodations as part of their learning within the University. The University's formal policies (and the appointment of the Liaison Officer) were established in 1994, but prior to that there were less formal policies designed to enable access to learning for students with disabilities.
Ms Cooper said at the time of enrolment an invitation was issued on the enrolment form for all students to make an indication if they had any disabilities. It was not obligatory for a student to answer this particular question and its function was to enable support services to be made available to students if they so wished. Ms Cooper said there were advertisements elsewhere in the University informing students of the University policy on students with disabilities and the legislative requirements, and inviting students to identify themselves if they had any disability and to contact a disability support officer if they wished to do so. However, Ms Cooper emphasised the onus was on the student to identify themselves and to seek support if they wished. Ms Cooper believed the University's obligation was to advertise supports and make them available. Ms Cooper said the University placed considerable emphasis on the need to respect confidentiality and privacy, and for this reason placed the onus on the student. She emphasised no one would make any contact with a student with a disability unless invited to do so.
Ms Cooper also gave evidence about the University's arrangements to assist students with disabilities. Part of the University's capital management plan included $1 million budget for meeting needs of students with disabilities. The University had devised a disability action plan and an equity plan, as well as a document known as Uniability, which operated as a resource guide as well as a statement of policy.
Ms Cooper said the development of the action plan commenced in early 1990. In 1993 the University had an Equal Opportunity Office and a Medical and Counselling Service, both of which had responsibilities for providing assistance for students with disabilities. Ms Cooper believed the University should be proactive in developing information and promulgating it to students at and prior to enrolment, so students could understand the University's obligation and their rights, but she emphasised the University's position remained that the onus was on the student. Ms Cooper believed it was not appropriate for lecturers to deal with accommodations in a broad sense. She believed students should approach a student counsellor or disability officer, and the counsellor and student together could meet with people in different areas of the University to arrange different accommodations. Lecturers could only deal with accommodations in relations to course work, but if a complaint ranged more broadly than that, there needed to be very much more elaborate arrangements made.
Ms Cooper said once Ms Sluggett's letter of 13 September setting out her difficulties of access had been received she believed the lecturers concerned should have picked up on the request made by Ms Sluggett for an extension for the submission of her assignment. She believed there should have been a discussion with Ms Sluggett as to the nature of the accommodations sought so as to address the access problems, and the meeting would have identified more clearly what the particular access difficulties were.
Ms Cooper gave evidence that the University did arrange specific means of transportation throughout the University grounds for students with particular mobility disabilities. Such arrangements are made through the Building and Grounds Division for any student with particular difficulties in accessing any part of the University. Ms Cooper said this was a continuing service, initiated in the 1980's, but she did not know whether it had been accessed by Ms Sluggett. She believed Ms Sluggett's particular difficulties were access to the University itself, rather than within the University, and for appropriate academic accommodations.
3.2.5 Herb Meinel
Mr Meinel is the Manager of the Buildings and Property Division of the University, and he gave sworn evidence at the Inquiry.
Mr Meinel told the Inquiry that in 1993 there had been no metered spots for disabled parking, but there were designated disabled parking areas. Parking permits for disabled parking had been available at that time at the same cost as standard parking permits and were issued from the Equal Opportunity Office or the Medical Office. Mr Meinel said there had been no record of any request for assistance from Ms Sluggett, either in relation to disabled parking or for transportation within the University. He was unaware of any concerns she may have had. Mr Meinel said assistance by way of support transportation or wheelchairs would have been made available to her, as they were to other students with mobility difficulties, but no request was made and he was not directly or indirectly made aware about any concerns in relation to Ms Sluggett's mobility.
Mr Meinel gave evidence of the arrangements for disabled access to the library. He said on the western wall of the library at plaza level adjoining an entrance to the library was a buzzer in a locked box adjacent to the door. Keys to the box in which the buzzer button was located were issued to persons with disabilities and who were authorised to have an access key. Mr Meinel said he was not aware any key was issued to Ms Sluggett. There was no phone near the box, but the key to the access area was issued where a student established a need. Ms Sluggett had not applied for one.
Mr Meinel also gave evidence concerning the routes through the University where reliance could be placed on lifts to go from one level to another. There was one route where it was possible to ascend from the bottom of the University to the top, needing to access no steps at all. There was an access through the service car park to a general lift to the registry building which served all four floors of the registry building. If this was taken up one level, the service lift in the union building was then available through the goods delivery entrance. Mr Meinel agreed this was a service lift where at any given time there might be packing and unpacking nearby, but said he used this lift every day and there was "not a great deal of obstruction". People were aware the lift area was one for general access, in particular for people with disabilities, and in general it was kept clear. Mr Meinel agreed there were a large number of doors to be opened to access the upper level using the lift.
With respect to the library entrance, Mr Meinel understood library staff always took responsibility for attending to the answering of the library bell. He agreed there was no seating directly next to the door but there were seats within ten metres of the library and it was in a covered area, although open to the north and south.
Mr Meinel said most of the route which could be taken accessed by the lift in the University grounds was inside, other than some short areas in courtyards. He agreed it was not a clearly marked route and there was no signage in 1993 directing students to lifts, but this information was always made available to students who disclosed they had disabilities.
Mr Meinel said the loop bus ran continuously around Flinders University. In 1993 timetables were issued and stops were scheduled at any given place every twenty minutes. The loop bus was not married to public transport timetables as public transport came into the University from a number of different routes within Adelaide. Nor was the bus timetable linked to any lecture or class time: Mr Meinel said as "a matter of time management", this was a complete impossibility. Mr Meinel said there were probably not automatic doors on the buses in 1993 and the bus had steps, and this might create some difficulties for persons with disabilities. The University was attending to improve on this situation.
3.2.6 Rita Perkons
Ms Perkons gave sworn evidence at the Inquiry. She worked as a Project Officer on multicultural HIV/AIDS with the Health Service in 1993. She had on a number of occasions prior to Ms Sluggett's placement supervised students, but in 1993 when she supervised Ms Sluggett she was the first student she had supervised at the Health Service.
Ms Perkons said she had been contacted by Dr Vreugdenhil with respect to Ms Sluggett's placement and she had then spoken to Ms Sluggett and a visit had been arranged in early 1993. There was a discussion of Ms Sluggett's work, interests and learning goals, and a general familiarisation with the agency. Ms Sluggett had expressed interest in research project work and the topic of HIV/AIDS issues in the migrant communities was discussed. Ms Perkons said Ms Sluggett seemed "very keen and interested".
Ms Perkons said she noticed Ms Sluggett's limp and discussed this with her. Ms Sluggett had explained she had polio as a child which had caused considerable weakness in one leg.
Ms Perkons said she had met Ms Sluggett on the first floor, access to which was up a wide staircase inside the front door. Ms Sluggett's office was proposed to be on the top floor which was accessible by either a spiral staircase or a wide straight staircase at the back of the building. On her first visit Ms Sluggett had accessed this office by the spiral staircase, and no mention was made of any difficulty in using those stairs. Ms Sluggett did not make any comment about any difficulties which might arise in relation to having an office on the second floor. If she had done so other arrangements may have been made, with an office on the first floor (but not the ground floor), or she could have been placed in another agency and supervised from the Health Service.
Ms Perkons said up to the mid-point of Ms Sluggett's placement she had been very pleased with Ms Sluggett's work and viewed her as a very good student. After the mid-placement assessment with Dr Vreugdenhil, Ms Sluggett was absent on a number of occasions from the agency. Ms Perkons was concerned at this, and there also then appeared to be difficulties with the standard of Ms Sluggett's report writing. Ms Sluggett explained to Ms Perkons she was not feeling well and was very tired, but no mention was made with any difficulty with access or the stairs. Ms Perkons said she never saw Ms Sluggett fall down the stairs, although she saw her stumble once, but Ms Sluggett had said she was "fine".
After the meeting of 21 October there were discussions about the placement. It was agreed that Ms Sluggett could work at home on some occasions as she was not feeling well and needed to rest. However, she appeared to make it clear that when she was not feeling tired there would be no difficulty with her accessing the building.
Ms Perkons said Ms Sluggett's project required her to interview people in their homes. She discussed with Ms Sluggett these issues of access and suggested she used either a government car or taxi voucher for this purpose, but Ms Sluggett refused these.
Ms Perkons concluded Ms Sluggett had started out as a good student but disappointed in the second part of her placement in particular in relation to the collation of information and writing her report. She had known Ms Sluggett was unwell in the second part of her placement, and so accommodated her as much as possible.
Ms Perkons said Ms Sluggett's office on the second floor provided her with everything that she might need. She could come downstairs to see people if she wished to do so, but did not have to do so. There was a toilet on the top floor across the roof on the other side of the building, easily accessible. The service kitchen was on the second floor. The photocopier and printer were on the first floor and although there was tap water in the kitchen on the second floor, spring water was kept on the first floor.
Ms Perkons said it was not her role to assess Ms Sluggett's reports. She believed there was probably some discussion at the meeting of 14 December about extending her placement so the appropriate level of work could be achieved by Ms Sluggett, as well as about the level of the work achieved by Ms Sluggett and expressed in the report. However, Ms Perkons said it was not her role to "fail" or "pass" a student: this was the academic role, not her role as placement supervisor.
3.2.7 Nina Troffa
Ms Troffa worked at the Health Service in 1993 and she gave sworn evidence at the Inquiry. She was secretary to the Director, and generally sat at the reception desk. Ms Troffa said that there were no offices on the ground floor of the Health Service in 1993 as the building was in the process of being renovated. All offices were on the first and second floor. The first floor was accessible up a straight wide wooden stairs, and the second up a spiral staircase at the front of the building or ordinary stairs at the back of the building. She sat next to the spiral staircase on the first floor and could see part way down the wooden stairs towards the front door. She frequently saw Ms Sluggett on the wooden stairs and on the spiral stairs.. She had once seen her fall on the wooden stairs and she walked around to the stairs to ask if Ms Sluggett was alright. Ms Sluggett said she was fine, got up and left. Ms Troffa said no one else told her Ms Sluggett had fallen on any of the stairs, and she did not see her fall again on these or the spiral stairs. She said she certainly did not laugh when she saw Ms Sluggett fall on the stairs, and Ms Sluggett had not complained about the stairs and did not seem to have any difficulty in handling them.
Ms Troffa said she knew Ms Sluggett had difficulty with her leg and she moved more slowly than other people within the building because of it, including up and down stairs. She was not aware Ms Sluggett had any difficulties in her placement with the Health Service in relation to her desk or her legs, or in other respect.
3.2.8 Peter Kunst
Mr Kunst was the director of the Health Service in 1993, and gave affirmed evidence at the Inquiry.
Mr Kunst said in 1993 the ground floor of the Health Service was empty and was in the process of being converted to three clinical consulting rooms, a meeting room, a toilet and a counselling room. On the second floor, a refurbished library and upgraded kitchen were established, with a toilet and bathroom across the other side of the area. There was a spiral staircase linking the first and second floors which was required for planning reasons (it is a heritage listed item) to be retained, and he did not see this as posing any danger in the building, and no one had ever drawn to his attention the fact that it might cause any difficulty. The second floor was also served by ordinary stairs at the rear of the building. On the first floor were ten offices, and on the second floor were three office spaces and staff room. These were occupied by a research fellow, a research assistant and Ms Sluggett in 1993.
Mr Kunst did not discuss any details of her placement with Ms Sluggett as he believed the supervisor contracted with the University, and it was the supervisor and the University's responsibility to deal with the placement. Nor did he remember ever seeing Ms Sluggett fall on the staircase or indeed any staircase: nor did he see anyone fall on either of the stairs. Mr Kunst "categorically denied" calling Ms Sluggett "an idiot" when he saw her falling on the stairs. He said he could remember Ms Sluggett moving in a restricted way, but did not recall precisely what difficulty there might have been. He believed she might have moved considerably more slowly than others, and may have taken stairs one step at a time.
Mr Kunst said he did not ever approach Ms Sluggett with an offer of a social work position. In 1993, a position of a base grade social worker was approved and was advertised. There were a number of applicants, a short list was drawn up, and interviews were held. Mr Kunst was a member of the selection panel, and Andrew Venezilou was offered the appointment. He was not aware Ms Sluggett applied for the position. Ms Sluggett was not involved in any way in the appointment or selection process and the position was never offered to her. Mr Kunst said it was possible he may have mentioned the position to her, but she was not an applicant, and formal application in response to an advertisement, followed by an interview and selection process, was the only way to obtain an appointment within the Health Service. Mr Kunst said although he may have encouraged her to apply he would never have given her any expectation or hope of appointment, but rather would have given her a "standard answer". He believed it was unlikely he would have encouraged her to apply for the job as at the time the position arose Ms Sluggett was only a student and would not have been eligible. The process of appointment within the public service was, Mr Kunst explained, complex and difficult, including processes of redeployees, internal advertisements, and external advertisements.
4.1 The complainant's submissions
The complainant's fundamental submission was that, as consequence of significant stress imposed on her by the respondent's requirements relating to physical access to her classes at the University and her placement at the Health Service, she was subjected to significant stress. The complainant argued the requirements relating to access amounted to discrimination against her on the ground of her physical disability. As a consequence of the stress resulting from the significant physical burdens on her in her post graduate study in 1993, her condition deteriorated markedly and she developed Post Polio Syndrome. She submitted it was not in dispute the University grounds were very difficult to access for a person with disabilities. Ms Sluggett had a significant physical disability, but this had not significantly impeded her in the past, when she had successfully completed her Bachelor of Arts degree. She suffered from a recent deterioration of her condition resulting from the development of Post Polio Syndrome. This appeared to have commenced in about 1993 and the only significant change in Ms Sluggett's circumstances was the physical stress imposed on her by the respondent's requirements. The complainant submitted even if the Post Polio Syndrome had developed earlier than 1993, it was significantly exacerbated in 1993, and the real deterioration was from that time, which was when Ms Sluggett was subjected to the increased stressful activity which might have caused the Post Polio Syndrome, or at the least exacerbated it.
Mr Simpson submitted it was not in dispute that Ms Sluggett had a significant disability of which the respondent was aware at the commencement of her studies in 1998 when she identified on her enrolment form as a person with a disability. Nor was it in dispute that what Ms Sluggett was required to do in accessing all of her studies at the University in a physical sense, and her placement at the Health Service, were requirements with which a person without a disability could comply. Nor was it in dispute Ms Sluggett was not able easily to comply with the requirement to access the University premises and the Health Service. Ms Sluggett was required to access the University premises and the Health Service premises in the pursuit of her studies.
Mr Simpson also made submissions that the development of Post Polio Syndrome resulted from the physical exertion which Ms Sluggett was required to make at the University and the Health Service in the pursuit of her studies. The evidence of Dr Lee, Dr Tillett and Ms Buchan all supported a submission that Ms Sluggett's Post Polio Syndrome had probably developed in 1993, and even if there were some earlier symptoms, the real deterioration was in 1993. Dr Lee's evidence was whenever the first symptoms appeared, the syndrome really developed when the deterioration occurred in 1993. Dr Tillett gave evidence her first consultation with Ms Sluggett concerning polio was in September 1993, and there were numerous subsequent consultations after that date relating to matters which are likely to have been symptoms of Post Polio Syndrome. It was in 1993 when Ms Sluggett had increased activity which might have led to the development of the syndrome. Ms Buchan's evidence supported this.
Mr Simpson submitted the reference to "premises" in s.23 of the Act should be given a very wide definition: s.4 of the Act supported this by referring to "a place (whether enclosed or built on or not)", and in addition referring to "a part of premises (including premises of a kind referred to in paragraph (a) or (b))". Mr Simpson submitted this was a direction to look at all aspects of the premises and area which Ms Sluggett had to access: this included the outside stairs which exposed her to the elements; the rough terrain; the distance from the bus stop; the lack of signage; the nature of the stairs with handrails or lack thereof; the shrubbery growing over the handrails; and the presence of students sitting on the stairs. All these factors made it very difficult for a person with a disability to cope in accessing a premises.
Mr Simpson also submitted it was unfair for Ms Sluggett to have to detail all of these matters in her initial complaints to the University. She did make complaints to the University, but nothing was done in relation to the specific matters of the access to premises of which she complained. Her complaints were not about her catching a bus, but about the whole issue of getting into class. Mr Simpson submitted no one in the University accepted responsibility to address this complaint. No one sat down and worked out with Ms Sluggett the particular problems of access which she faced in order to develop a plan which could assist her in overcoming those difficulties of access. Mr Simpson submitted the respondent could not avoid responsibility under the Act by not making enquiries about Ms Sluggett's disability: Ms Sluggett did complain and received no response to her complaint. Mr Simpson submitted under these circumstances, the University did not take appropriate steps to ensure Ms Sluggett could manage to access the premises to get her class.
Mr Simpson referred to some specific matters of evidence raised by Ms Sluggett: he submitted her difficulties with the loop bus did not relate to its existence, but to getting on and off the bus, and the fact that for her purposes it was on the wrong side of the road. Under those circumstances the provision of the loop bus, which might have assisted another person with a different disability to access the University, did not assist Ms Sluggett, and did not redress her difficulties. Further he submitted, even though the University could demonstrate a route by which Ms Sluggett could get to her lecture theatre without having to climb stairs, nevertheless this was not a satisfactory route because it required her to go through the Registry and face other difficulties, such as obstructions and a much longer walking distance.
Mr Simpson also submitted the respondent had clear knowledge of Ms Sluggett's disability since 1988 when she had indicated it on her enrolment form. Further, the respondent's own evidence was that her lecturers saw she walked with a limp, and the University clearly knew of the condition and difficulty of access in a physical sense of the University site. In her letter to Professor Barber of 3 August 1993, Ms Sluggett referred to her difficulties with access as well as her problems with the result of her subject. Professor Barber addressed the issue of the P2, but did not respond to the aspect of her complaint dealing with access. She similarly raised this on 30 September 1993 to Mr Moller: again there was no response to her complaint concerning access. This was also raised in the meeting with Dr Vreugdenhil in December 1993. Mr Simpson submitted that as her condition deteriorated in 1993, Ms Sluggett advised of her increasing difficulties in access.
Mr Simpson submitted that to achieve the objects of the Act, there must be an obligation on the respondent to ascertain the precise nature of the problems once advised by a complainant of the disabilities, and the difficulties that disability was imposing. He submitted the University had not addressed this aspect of its obligations, in that knowing of Ms Sluggett's disability and problems, it did not take any steps to precisely ascertain those difficulties or to address them. The discrimination towards Ms Sluggett then was in requiring her to access the University and the Health Service in order to complete her studies, knowing of her disability and her difficulties of access.
Mr Simpson also made specific submissions concerning s.23(2) of the Act. In particular, he submitted s.23(2) only applied where "premises are so designed or constructed as to be inaccessible to a person with a disability". He submitted neither the University nor the Health Service were "inaccessible": he referred to the definition of "inaccessible" as premises which could "not be reached, entered or got to". Mr Simpson submitted no aspect of the premises were "inaccessible" to Ms Sluggett on this basis: just very hard for her to get to. He submitted s.23(2) therefore provided no defence to the respondent.
Mr Simpson submitted a finding of discrimination did not mean the respondent had needed to alter the nature of its premises in a profound way: what it had to do was change the arrangements for Ms Sluggett's circumstances. The lecture theatre could have been changed, or other arrangements made in respect of her class work. The issue of where her classes were to be held had never been explored at all. Action could have been taken to keep students off staircases, and benches for resting could have been provided. Other arrangements could have been made for Ms Sluggett in the Health Service: in particular she could have been given an office on the first floor rather than the second floor, which she needed to access by the inappropriate and dangerous spiral staircase. In particular, in relation to the Health Service, Mr Simpson submitted the respondent should not have required Ms Sluggett to have undertaken her placement there, but should have found a placement at more suitable premises.
Mr Simpson submitted finally Ms Sluggett had a pre-existing condition which created her disability, namely the earlier polio infection, with its physical consequences. However, she developed Post Polio Syndrome as a result of the original condition. He submitted the Post Polio Syndrome developed in 1993, but even if it did predate 1993, the respondent's discriminatory actions and requirements exacerbated it.
Mr Simpson sought declarations from the Commission that the respondent had acted unlawfully contrary to s.23 of the Act. He sought a determination that Ms Sluggett's academic record be amended to delete the failed grades which she obtained in 1993, and that the respondent compensate Ms Sluggett for economic loss and for pain and suffering, including hurt feelings and humiliation. He referred to Ms Sluggett's evidence that she was tired and fatigued, with additional weakness and stress; and suffered from depression and anxiety, headaches, aches and pains and respiratory problems, which might have resulted from having less endurance. He referred to Ms Sluggett's evidence that it was now very difficult to carry out domestic duties; that she could not conduct her religious observances; that she was now unable to socialise and had to rely more on others; could not engage in community activities; and had lost a significant degree of her independence.
In relation to her economic loss, Mr Simpson referred to the medical expenses which had been and were likely to be incurred by Ms Sluggett. He referred to her likely future treatment from Ms Buchan and Dr Lee, and possible future surgery with the need for braces and pharmaceuticals. He indicated the evidence which suggested Ms Sluggett was likely to have to pay increasing transport costs as she relied increasingly on transport other than public transport, and that she would now need some form of job retraining. He submitted a "broad axe approach" should be taken to the issue of economic loss, and indicated in particular Ms Sluggett had been unable to complete the academic qualification which she sought and was necessary for her to pursue her chosen career, in which she would now not obtain employment.
Mr Simpson further referred to the issue of "facilities" referred to in s.23(1)(e) of the Act. He conceded the respondent allowed Ms Sluggett to access the University premises by being on the grounds in order to complete her studies. In that sense he submitted the University allowed her to use its facilities for the purpose of study.
4.2 The respondent's submissions
For the respondent, Mr Evans submitted the complaint was limited to s.23 of the Act, that is, access to premises. He referred to s.11 of the Act which refers to matters to be taken into account in considering "all relevant circumstances of a particular case" in determining unjustifiable hardship, and he submitted section 11(a),(b), and (c) were all applicable, (although he conceded possibly (d) did not apply, as in 1993 the respondent did not have a complete action plan, although it existed in a draft form which had been provided to the Inquiry). Mr Evans submitted there was no evidence of direct discrimination, but even if there had been, the unjustifiable hardship provision applied in favour of the respondent.
In relation to indirect discrimination (s.6 of the Act), Mr Evans referred to the four elements required to establish this: a requirement imposed on the complainant; capacity of compliance with that requirement by a substantially higher proportion of persons without a disability; that the requirement was not reasonable in the circumstances; and that the complainant could not comply with that requirement. Mr Evans referred in particular to the decisions in Waters v Public Transport Corporation (1991) 173 CLR 349, and Secretary of the Department of F A & T v Styles (Full Federal Court) 1989 EOC 92-965, 77,636.
Mr Evans submitted it was clear from Waters (per McHugh J at 411), that the onus to establish unreasonableness was placed on the complainant: Ms Sluggett was required to prove this as part of her case of indirect discrimination. In relation to the determination of what was reasonable, Mr Evans submitted it was necessary to ascertain the reasons underlying the insistence on the requirement, and then determine whether in all the circumstances the objection to that requirement was justified. In support of this, he referred to Wilcox J in Styles, with whom Bowen and Gummow JJ agreed. Mr Evans submitted this approach had been adopted in Waters, in particular by Dawson and Toohey JJ (at page 395). Dawson and Toohey JJ suggested it was necessary to weigh the nature and extent of the discrimination against the reason for the requirement and the circumstances to be taken into account, of necessity including the economic and financial circumstances of the body imposing the requirement.
Mr Evans submitted Ms Sluggett's complaint focused on the steps which she had to negotiate within the University grounds and at her placement, the distances she had to walk, and the combination of those two factors. This particularly related to her circumstances in second semester in 1993. Mr Evans submitted Ms Sluggett's original complaint made some reference to problems of access, but at that time her main complaint appeared to be difficulties in getting into the University, and accessing the library. The documentation provided by Ms Sluggett at the hearing suggested this was her primary concern in July of 1993. At that time she approached Professor Barber to complain about the mark given by Mr Moller. She put her complaint in writing and this indicated that access to the University from her home was her major problem. Dr Vreugdenhil's evidence was the concern Ms Sluggett raised with her about her placement in the Health Service related to her difficulty in accessing the public transport. Ms Sluggett's own evidence was that she found it difficult to get home from lectures that were held outside the University. In Ms Sluggett's letter of 21 October 1993 concerning difficulties with her placement, there was no emphasis on the issues raised in the course of the Inquiry: in particular, there was no reference to falling down the stairs at the Health Service, or that she had been ridiculed for this by Mr Kunst (indeed, Mr Evans pointed to the fact this had never been alleged in her own evidence: it was only put in cross examination to Mr Kunst).
Mr Evans submitted it was clear Ms Sluggett did have difficulties at the University and was not happy with the marks she obtained. She had obtained an extension for work to be submitted, but she failed the year. Ms Sluggett made a broad complaint about a number of issues: most of these complaints were, by the time of the Inquiry, sidelined, and the only issue that remained was the issue of access to the premises. However, Mr Evans submitted this aspect of Ms Sluggett's complaint had taken on a quite different dimension in the course of the Inquiry, and had never been presented prior to the Inquiry in these terms. Ms Sluggett had never raised as a matter of complaint the matters in relation to which Mr Simpson made submissions, namely that the physical stress of undertaking the course for which she enrolled had caused Post Polio Syndrome. Her complaints had in the past always related to getting to the University and to her placement from her home.
Mr Evans submitted Ms Sluggett's complaint had taken on a new life in the course of the Inquiry: Ms Sluggett's case at the Inquiry was transformed from difficulties in accessing public transport to get to her placement, to saying the reason she was absent from the Health Service was because of physical requirements imposed on her there, such as climbing the stairs, and that this significantly affected her health and her academic results. The same thing applied at the University. Her complaint became that she was not physically capable of passing her courses because of the discriminatory physical impositions required of her. However, Mr Evans submitted this was not her complaint at the beginning of the matter. Her case had changed.
Mr Evans submitted Ms Sluggett's evidence was that the first difficulty she faced in August 1993 resulted from her endometriosis. In her discussions with Professor Barber, she did not indicate her difficulty resulted from the stress in accessing the premises in the sense of being able physically walk round them: rather, that she had other personal problems and was unable to attend classes because of various personal traumas. Mr Evans submitted the reality of what was happening in Ms Sluggett's personal circumstances at that time was different from what was put forward at the time of the Inquiry. Mr Evans also submitted all the evidence indicated Ms Sluggett was very rarely in attendance at the University in second semester 1993: she was either at home or at her placement.
Mr Evans submitted the University was not responsible for the nature of the premises at her placement at the Health Service. The placement was negotiated in consultation with Ms Perkons, Dr Vreugdenhil and Ms Sluggett. Ms Sluggett had visited the premises, discussed the project and decided that was the placement she wanted. Ms Sluggett had gone to the first floor at the Health Service when she visited Ms Perkons for her discussion, and seen the spiral staircase. Ms Perkons' evidence was that they went up the spiral staircase on that visit and she discussed Ms Sluggett's disability with her and was satisfied Ms Sluggett was comfortable with the circumstances of the premises. Although Ms Sluggett denied this discussion took place, there was some support in the evidence of Ms Troffa and Mr Kunst, who had a sense of an overall picture of Ms Sluggett's general comfort in the premises at the Health Service, and that she faced no real difficulty in accessing her stairs. Ms Troffa, Ms Perkons and Mr Kunst all agreed Ms Sluggett was slow in going up the stairs, but all were clear Ms Sluggett never raised any difficulty with them with any of them concerning her access, and no difficulties were seen, other than two occasions on which Ms Sluggett stumbled (on neither occasion on the spiral staircase). This is supported by Ms Sluggett's own letter of 21 October 1993 which did not mention any difficulty with access within the building or with the stairs.
Ms Sluggett's mid-placement report was satisfactory, but identified two particular areas of difficulty which she had to address. Mr Evans submitted the areas identified in the mid-placement report as areas of difficulty were ones absolutely fundamental in terms of passing the course, relating to issues of objectivity necessary for a social worker. Ms Sluggett did not remedy these areas of difficulty and she failed. Mr Evans submitted these were simply matters of academic concern which were identified as appropriate, but were not remedied, and accordingly the assignment did not pass.
Mr Evans also made submissions concerning the route which Ms Sluggett could take at the University. Among the factors which he submitted needed to be taken into account in considering what was reasonable in all the circumstances, was the fact Ms Sluggett was familiar with the University campus, as she had been enrolled at the campus, although in a different building, from 1988 to 1990, and then again in 1992. Mr Evans submitted it was very difficult to accept Ms Sluggett was not familiar with alternative routes around the campus. He conceded the route down the hill from the top car park (referred to by Ms Sluggett as "killer hill") was clearly a very difficult one: however, he queried why a person with her difficulties would take that route, rather than one of the others. In her evidence in chief, Ms Sluggett had indicated she rarely got out of the car in car park 4 (adjacent to her building), but mostly came down from car park 2 (necessitating a walk down "killer hill"). In her cross-examination (after the view at the University), Ms Sluggett conceded she only went to car park 2 at the top of the hill once or twice. Ms Sluggett agreed she was aware of lifts, and had been given information about the lifts when the University was notified of her disability, but initially said she did not know about the Registry lift. In cross-examination she conceded she had been aware of the Registry lift and had used it in 1988. In 1988 she knew of the University's services available to persons with a disability and made enquiries and was informed about access and support for students with disability. In 1992 and 1993 , having been a full time student at the University for four years (1988-1990 and 1992), she was aware of a service, but did not go to the Equal Opportunity service within the University until advised to do so by Mr Moller in July 1993. Mr Evans submitted this inconsistency of evidence seemed to underline the nature of Ms Sluggett's original complaint: that is, that her difficulty was access to the University, not access within the University, or to her courses in that sense. Mr Evans submitted Ms Sluggett knew she would need a car to successfully undertake her postgraduate course, and she obtained a car and a licence in order to get access to the University. She re-enrolled at that University, and Mr Evans submitted this indicated she was of the view that if she were able to easily access the University from her home, she would then be able to access the facilities required within the University for her to complete her course successfully.
Mr Evans submitted the nature of Ms Sluggett's case changed to allege the University was liable for Ms Sluggett's Post Polio Syndrome which was diagnosed in 1993. Mr Evans suggested two new factors occurred in 1993. The first was that for the first time Ms Sluggett was unhappy with the grade she had been awarded, and the second was that the Act came into operation in March 1993.
Mr Evans submitted it was clear from the evidence, and not disputed, that Ms Sluggett had difficulties with her health over a lengthy period of time. She had given evidence (supported by her medical evidence) there were difficulties in 1991, 1992 and 1993. Further, the medical evidence was not clear as to the cause of Post Polio Syndrome and how much it depended on additional physical stress. Ms Sluggett gave evidence her difficulties with her hands was the main reason she did not immediately go on to post graduate work when she completed her Arts degree in 1990. Her evidence was she wanted to "review the situation" relating to her health. Further, she had difficulties in 1992 with her hands, both legs, neck and with headaches. Mr Evans submitted it was very clear Ms Sluggett's health difficulties did not all suddenly occur in 1993. Ms Sluggett gave evidence she found it difficult to undertake the exercises provided to her by Ms Buchan in 1991 and did not in fact undertake them. In 1992 she often would feel "exhausted," and did the exercises even less often. She had initially consulted Ms Buchan in 1991 because of difficulties with her leg. Her evidence was that at the beginning of 1993 she seriously considered whether she would continue with her studies because she still had difficulties with her hands, feet and chest. Dr Tillett's evidence was the history provided to her by Ms Sluggett was that she had problems for about two years, and her view was that Post Polio Syndrome probably dated from 1991. Dr Tillett first consulted with Ms Sluggett on this issue in 1993. Dr Anderson and Dr Sutherland's written information was that in December 1993 Ms Sluggett had been complaining of these difficulties for at least two years, and Post Polio Syndrome was diagnosed. Neither Dr Anderson nor Dr Sutherland were called by the complainant to give evidence or their view of the onset of Post Polio Syndrome.
In relation to Dr Lee's evidence, Mr Evans submitted his speciality was in looking at a disability rather than making a diagnosis. His function was to treat the disability rather than diagnose, which was left to Drs Sutherland and Anderson. Dr Lee's evidence was that the disability resulting from Post Polio Syndrome triggered the symptoms from which Ms Sluggett suffered, and he conceded Post Polio Syndrome may well have developed prior to 1993, and that the medical research in this area was uncertain. This was particularly so in relation to the cause of Post Polio Syndrome, and evidence was presented (not only by Dr Lee) as to the various theories of its cause, including overuse. Mr Evans submitted it was not the respondent's fault if Ms Sluggett "overused" her muscles: this was particularly so in the light of Ms Sluggett's own evidence that the problems which she had in 1993 had existed for some years prior to the diagnosis of Post Polio Syndrome at the end of 1993. Mr Evans' conclusion was Ms Sluggett's circumstances attracted sympathy, but not liability in the respondent, nor a remedy.
In relation to the determinations sought by the complainant, Mr Evans submitted there was no unlawfulness established in the respondent's dealings with Ms Sluggett, on the basis of either direct or indirect discrimination. He submitted s.23(1)(e) of the Act, which refers to the terms or conditions on which a person is allowed to use facilities, was not relevant: he submitted it would be entirely inappropriate to amend Ms Sluggett's academic records to delete the failure, as there was no evidence Ms Sluggett's work could be deemed other than a fail standard. A fail had been ascribed to her work because the appropriate academic standards had not been reached. Ms Sluggett clearly could apply to re-enrol to complete her studies. He submitted there was no evidence to support the economic compensation which Ms Sluggett sought: in particular he referred to Ms Sluggett's evidence she had been offered a job at the Health Service. Mr Kunst had categorically denied this was the case, and described the process whereby Mr Venizilou obtained the appointment. In any event, Ms Sluggett had never qualified for the position as she did not complete her studies. Mr Evans submitted Ms Sluggett's car expenses were not relevant to a matter of damages, as they were normal expenses of transportation that any person with or without a disability might incur. Mr Evans submitted a written apology was not appropriate. Further, there could be no requirement that the respondent take steps to avoid future discrimination, as the Act had not been breached in this case, but in any event it was clear the respondent was doing everything appropriate on an ongoing basis to support persons with disabilities.
In relation to the nature of the premises at the Health Service, Mr Evans submitted the evidence clearly indicated Ms Sluggett had means of access which did not subject her to significant strain, and did not support her account of the difficulties which she faced there. In particular, he indicated the presence of the conventional stairs up to the second floor with hand rails on each side, which meant Ms Sluggett did not have to use the spiral staircase; although he also indicated there was little evidence to suggest she had difficulties in accessing the spiral staircase. In addition, toilet and kitchen facilities were available to her, and there was no evidence to support her claim she was discriminated against on the ground of her disability at those premises. In addition, however, Mr Evans submitted the respondent did not provided the means of access to the Health Service, and could not be responsible for the nature of the Health Service premises. He submitted there was no causation element which could render the University responsible for any loss consequential upon the nature of the Health Service premises. Even if there were any loss to Ms Sluggett as a consequence of the nature of the premises at the Health Service, nothing the respondent had done contributed to such loss.
Finally Mr Evans submitted Professor Barber and Mr Moller in particular, acting on behalf of the respondent, had done what in all circumstances was appropriate, given the information that was available to them and the complaints made to them by Ms Sluggett. He submitted Ms Sluggett had not satisfied the onus on her in relation to the issue of reasonableness.
5.1 Findings of fact
In making the following findings of fact I take into account all the evidence set out above, along with the view of the University grounds and premises and the Health Service premises conducted as part of the Inquiry, in the company of the representatives of the complainant and the respondent.
* Ms Sluggett has a disability within the meaning of s.4 of the Act, resulting from suffering from polio as a young child, which has led to weakening of her left leg, for which in the past she has had surgery.
* In December 1993 Ms Sluggett was diagnosed as suffering from Post Polio Syndrome.
5.1.2 Ms Sluggett's academic record
* Ms Sluggett enrolled at the University in a Bachelor of Arts degree in 1988.
* She successfully completed this degree in 1990
* In 1992 Ms Sluggett re-enrolled on a full time basis at the University to undertake a post graduate degree in Social Administration.
* This degree provides a pre-requisite to registration for practice as a Social Worker.
* The degree is a two-year degree studied on a full-time basis.
* In 1992 Ms Sluggett successfully completed the requirements of the first year of study.
* Ms Sluggett was doubtful at the beginning of 1993 whether she would re-enrol as throughout 1992 she had been suffering from increasing tiredness, pain and weakness.
* In 1993 Ms Sluggett did re-enrol, again on a full time basis.
* Ms Sluggett failed three subjects in 1993: Social Work in Selected Settings; Community Organisations; and Fieldwork B.
5.1.3 The topography and construction of the University
* The University is situated south of Adelaide and built on a steep site on the side of a hill. It is a large campus with premises constructed on several levels with considerable distances between locations on different levels.
* The buildings on the campus are spread out linked by courtyards and stairs and surrounded by a "ring road".
* The ring road is serviced by a "loop bus" operated by the University and free of charge, which stops at the Registry (at the bottom of the University site) and at various points up and around the hill adjacent to the School buildings.
* The loop bus runs every fifteen minutes from any given stop.
* Parking permits at a cost of $80 per year are available for students.
* General parking for students is available at the top of the University hill.
* Student parking is also available on a metered basis in car parks adjacent to School buildings.
* General car parking for persons with disabilities is available in car parks adjacent to Schools.
* Car park permits for students with disabilities are available at the same cost as other student permits upon application to the University.
5.1.4 Academic requirements arrangements and performance
* When Ms Sluggett enrolled in 1988 most of her classes for her BA studies were held in Social Sciences North, a building two flights up from the Registry level.
* When Ms Sluggett enrolled in her Social Administration course in 1992, most of her classes were in Social Sciences South, up a further flight of steps.
* In 1993 Ms Sluggett was required to take two field work placements outside the University.
* In semester one she completed her placement with no difficulties ascribable to her disability or issues of access.
* In semester two her field work placement was at the Health Service for the subject Fieldwork B.
* Fieldwork B was a required subject for successful completion in the course and a pass was necessary to obtain registration as a social worker.
* Ms Sluggett appealed to a University Student Appeal Committee against the fail results recorded in relation to the subjects she failed in 1993, on the basis that her disability detracted from her performance, and that in failing to make allowances for her disability, the University had discriminated against her.
* Ms Sluggett was not successful in her appeal in respect in any of these results.
* The Committee considered on 25 March 1994 that Ms Sluggett's Post Polio Syndrome had not been identified by her prior to the relevant dates for submission of material and work, and she had not advised the University prior to October 1993 of any difficulties in negotiating in her placement at the Health Service. The Committee accepted that the School (in which Ms Sluggett was enrolled) had made appropriate allowances in respect of her disability. The Committee, however, considered if the School had been aware of Ms Sluggett's disability, further consideration may have been appropriate.
* The School was asked by the Committee to consider the re-submission of some work by Ms Sluggett on the basis that had it known of her condition earlier other accommodations may have been made.
* The School rejected this request on the basis it had recognised Ms Sluggett's medical conditions and had granted accommodations, but despite those accommodations the academic standard of the work she produced had not been sufficient to enable her to pass.
5.1.5 The Health Service premises and arrangements
* In second semester 1993 Ms Sluggett undertook a placement at the Health Service in the city of Adelaide for the subject Fieldwork B.
* To access the building from the street, Ms Sluggett had to negotiate steps from the footpath and then enter the premises up a flight of straight stairs with a landing in the middle and a handrail each side. Ms Sluggett's office was on the second floor of the Health Service building: access to the second floor was up a spiral staircase from the middle of the first floor, or up a conventional staircase at the rear of the building.
* Kitchen and toilet facilities were available on the second floor where other offices and the library were also situated.
* Ms Sluggett has difficulties with the spiral staircase and negotiated it carefully step by step, and on at least one occasion she stumbled on the stairs.
* Ms Sluggett did not habitually use the conventional staircase at the back of the building to access her office on the second floor.
* There was no lift in the Health Service building.
5.1.6 Routes within the University ground
* Within the University grounds Ms Sluggett could have used different lifts to travel from the bottom of the University (the Registry level) up to the level of Social Science South building where her lectures were held, and adjacent to the computer laboratory where she also attended classes.
* Had Ms Sluggett used the lifts between the different levels she would have avoided the need to climb any stairs.
* Had she done this, negotiating the University grounds would still have entailed considerable walking.
* Ms Sluggett would also have had to negotiate a number of heavy doors which she would be required to open to access the lifts and her classrooms.
* Ms Sluggett could have accessed the library without negotiating stairs by using the library western access, available to persons with a disability. Ms Sluggett could have been issued with a key so that she could use the buzzer to have the side door opened for her, but she did not apply for a key.
* Ms Sluggett was advised of the facilities, services and supports available to students with disabilities at the time of her initial enrolment in 1988.
* Ms Sluggett did not avail herself of these facilities, services and support.
* Ms Sluggett did not disclose that she had a disability when she re-enrolled in 1992.
5.1.7 Ms Sluggett's health
* Ms Sluggett consulted a physiotherapist, Ms Buchan, in 1991, about the increased weakening in her left leg. Ms Buchan gave her a series of exercises designed to strengthen her leg.
* Ms Sluggett found the exercise regime painful tiring and difficult, and did not continue with it except as she felt she was able.
* Ms Sluggett's medical condition and in particular her increasing weakness, worsened in 1992 and 1993.
* At this time Ms Sluggett also suffered from a variety of gynaecological problems and other medical conditions for which she sought ongoing medical attention.
* At this time Ms Sluggett also had a weakening in her left leg, increasing tiredness, and as a consequence, difficulty in carrying out domestic and personal functions.
* In December 1993 Ms Sluggett was diagnosed with Post Polio Syndrome.
* Post Polio Syndrome may result from stress or overuse of muscles which have already been affected by polio, but the trigger mechanism for the development of the syndrome is not yet identified or isolated. Research and speculation continues as to the cause of the syndrome.
* Post Polio Syndrome generally occurs about 30 years after the original polio infection, but approximately 50 per cent of polio sufferers do not develop the syndrome.
* Ms Sluggett's lifestyle and performance in her studies in 1993 were affected by her disability and her increasing ill health.
* Ms Sluggett had some difficulty in attending classes in 1993 because her increasing tiredness made it difficult for her to attend at the University and to take notes in classes.
* Ms Sluggett owned a motor vehicle from 1990.
* Ms Sluggett had L-plates from October 1991 and P plates from 1994. Ms Sluggett did not purchase a parking permit for the University (disabled or otherwise), but relied on her partner or friends to drive her to University.
* Ms Sluggett could have parked in a parking zone available for students with disabilities near the Social Science South building, or could have been dropped off in the car park adjacent to the Social Science South entrance.
* Ms Sluggett could access the Health Service by public transport or by obtaining a lift.
* Ms Sluggett was able to access her office at the Health Service by stairs, although with some difficulty and only slowly.
* Ms Sluggett consulted Ms Buchan from 1991 for leg strengthening exercises. However, she had difficulty in performing the exercises, and did not complete the regime established for her by Ms Buchan.
* Nor did Ms Sluggett use the brace recommended by Ms Buchan, and she stopped wearing the recommended shoe build-ups prescribed by Ms Buchan in 1993.
* Ms Sluggett's walking capacity diminished from 1992.
* Ms Sluggett learned to compensate for her weakness and to conserve her energy.
5.1.8 Ms Sluggett's academic performance
* Ms Sluggett's performance in terms of her academic record diminished significantly in 1993 when she failed three subjects.
* Ms Sluggett's chose as the area of work for her fieldwork placement the topic of Multiculturalism and HIV/AIDS.
* An appropriate placement service was determined by the University to match this research interest and Ms Sluggett was recommended to the Health Service.
* Ms Sluggett attended the Health Service premises and discussed her placement with the Health Service, with Ms Perkons, prior to agreeing to take the placement.
* When Ms Sluggett agreed to take the placement she signed a contract setting out the general arrangements for the placement.
* Before she did this Ms Sluggett viewed and inspected the premises, and as well as discussing the placement requirement, discussed her disability with Ms Perkons.
* Ms Sluggett made no complaint about the premises at the beginning of or during the time of her placement.
* On 29 October 1993 toward the end of her placement, Ms Sluggett met with Ms Perkons and Dr Vreugdenhil (her placement and academic supervisors) to discuss difficulties with her placement. She did not raise any concerns about the stairs or difficulty in accessing the placement or premises.
* Ms Sluggett's failure in the subject Fieldwork B to which the placement related resulted from her academic deficiencies, not any access issues associated with her disability.
5.1.9 Access to the respondent's premises
* Ms Sluggett could access the premises within the respondent's campus at which her lectures were held, although she was restricted by her disability which made it more difficult and stressful for her in accessing them.
* Nevertheless, Ms Sluggett could access her lecture theatres and other classrooms without needing to climb any stairs: she could either be dropped off at the Social Science South level adjacent to the building, or she could catch lifts up through the University.
* If she took the latter course, she was still required to do a considerable amount of walking, and there were a number of doors, some very heavy, for her to open.
* Ms Sluggett could obtain access to the library avoiding the stairs, but did not obtain a key available to students with disabilities on request, which would enable her to do so.
* Ms Sluggett was given information concerning services relating to access for students with disabilities, but in general chose not to access those services.
* At the Health Service, Ms Sluggett was required to use stairs in order to access both the building itself and her office, but she did not advise either the respondent or the placement agency of any difficulties. She was not required to use the spiral staircase to access her office, or to constantly address the stairs.
* Ms Sluggett was well aware of the topography of the University campus and the buildings which she would have to access before she enrolled in 1992 for her Social Administration course. Ms Sluggett inspected the premises at the Health Service and discussed the nature of her placement and her disability with her placement supervisor at the premises prior to agreeing to take on the placement.
* Ms Sluggett did not raise any issue of difficulty of physical access at either the University premises or the Health Service premises in 1993.
* As Ms Sluggett's health and mobility deteriorated, walking and addressing the stairs led to stress and overuse of her muscles, which may have contributed to the symptoms relating to Post Polio Syndrome.
* Ms Sluggett's poor health no doubt impacted on her academic performance.
5.2 Application of the law
I have set out above in this determination the relevant legislative provisions of the Act which this Inquiry must address.
5.2.1 "Disability" - s.4 of the Act
It was not contested by the respondent that Ms Sluggett suffers from a disability as defined in the Act.
I am satisfied on the basis of the evidence and submissions before me Ms Sluggett does have a disability which comes within the meaning of that term, defined in s.4 of the Act.
5.2.2 Access to premises - s.23(1)(c) of the Act
This section makes it unlawful to discriminate against another person on the ground of that other person's disability, by refusing to allow access to or use of any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not), or in the terms or conditions on which a person is allowed to access the premises; in relation to the provision of means of access to such premises; or by refusing that other person access to the premises or in the terms or conditions on which the person is allowed to use the facilities in such premises. The particular part of s.23 with which this Inquiry is concerned is s.23(1)(c): this provision is concerned with discrimination "in relation to the provision of means of access" to premises. The question I must consider therefore is whether there was discrimination, direct or indirect, against Ms Sluggett, on the basis of her disability, in relation to the provision of means of access to premises the public is entitled or allowed to enter or use.
The complainant argued that "premises" ought be provided with a very broad interpretation and application, to encompass not only the buildings contained on the University campus, but also the surrounding circumstances and nature of their presentation. The complainant submitted the "premises" at the University campus should encompass such things as shrubbery growing over the hand rail to external staircases, students blocking or restricting access to staircases or passageways, and the fact that some pathways are open to the elements. The complainant also submitted "premises" extended to premises not part of the University campus or within the respondent's control, and in particular included the premises of the Health Service, which are not situate on the campus, and do not belong to the University. The respondent argued for a narrower definition, and in particular that it did not include the Health Service, which was not the respondent's premises in any sense.
I note s.4 of the Act in its definition of "premises" provides a broad and inclusive definition: it includes reference to a structure, a place (whether enclosed or built on or not), and a part of premises. I note further s.23(1) is subject to s.23(2) of the Act, which provides it is not unlawful to discriminate against a person on the grounds proscribed in s.23(1) where (in (b)), "any alteration to the premises to provide such access would impose unjustifiable hardship to the person who would have to provide that access." Section 11 of the Act provides some guidance in relation to what may amount to "unreasonable hardship", and in particular sets out various factors which can be taken into account in making this assessment. Section 11 is as follows:
"For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d) in the case of the provision of services, or the making available of facilities - an action plan given to the Commission under s.64."
I note the respondent had no action plan as referred to in s.11(d) in 1993, although it did develop one shortly thereafter.
It is my view that "premises" should be defined fairly broadly. In considering the issue of physical access, it is my view that all aspects of the University premises should be taken into account. Unless this is done, the full application of s.11 is not possible. It is my view under these circumstances that access to premises for the purposes of this Inquiry does include Ms Sluggett's difficulty of accessing the respondent's buildings containing lecture theatres, other teaching rooms and the library within the campus: it therefore must take into account the long walks, the many stairs, the heavy doors, the difficult stairways, the open walk areas, the crowded stairs, the distances between lifts, and the sometimes limited access to lifts. In my view, these things are all part of a broad definition of "premises", and are all relevant to physical access to premises.
I am also satisfied that the Health Service constitutes "premises" for the purposes of this complaint. I appreciate the respondent has no control over the nature over the Health Service premises in the sense that it is unable to modify or control those premises, not being its own. But at the same time, the respondent had control over which premises Ms Sluggett would be required to access for the purpose of her placement. If a student were confined to a wheelchair it seems to me it would be no answer to that student's complaint of access if he or she were placed in wheelchair inaccessible premises, to say the respondent had no control over those premises as it was not the respondent's premises. In relation to access to premises in a sense of providing a means of access, it appears to me the nature of the Health Service which the respondent selected for a placement as part of a course Ms Sluggett was completing, brings it within the terms of the Act as "premises" in relation to which a complaint could be made against the respondent.
The respondent was required by s.23 of the Act to provide means by which its students (and other relevant persons) could, once they were at the threshold at the campus, physically access in an appropriate way the parts of the premises necessary for them in the pursuit of the purpose of their access. It seems to me clear that the respondent has no duty under s.23 of the Act to provide a means of access to the premises in the broadest sense; there is no argument that the University had to provide a means whereby Ms Sluggett was facilitated from her home to the campus or to the Health Service. However, once Ms Sluggett was at the threshold of the campus so to speak, the respondent's obligation under s.23 would commence.
In relation to the Health Service, once the University chose particular premises to be used for a placement, it might well amount to unlawful discrimination if the premises chosen could not be appropriately accessed for the purpose of the placement by the student.
Accordingly, I now turn to consider what the respondent did in the provision of means of access to the premises at the University campus and at the Health Service.
In relation to the University campus, the respondent's circumstances are restricted by the geographical arrangement and construction of the campus. The campus is situated on a steep site on the side of a hill, and the campus is very large. The buildings are spread some distance apart and the area is landscaped with courtyards, a lake, walkways and open spaces. In part the arrangement of the campus is dictated by steep site (the necessity to have a variety of levels), and in part by the architectural design and landscaping chosen (in the 1960's when the University campus was established) by the University.
I am satisfied however, that at the time Ms Sluggett was enrolled as a student in 1993, the University provided means of accessing each level of the campus via lifts. There was a lift in the Registry building (the bottom point of the campus) to the following level. There was another lift in the delivery area near the refectory, which went to the next level (Social Science North level); and a further lift (from May 1993) to the Social Science North level. There was no lift which allowed access in a straight line: there was still considerable distance and a number of doors to be negotiated between these lifts. However, each lift was itself easy to access, although some question was raised in relation to the service lift near the refectory. It was suggested there might from time to time be obstructions at this lift, but no evidence was brought to the Inquiry suggesting this was in fact the case, although it was clear this lift was not as generally publicly accessible as the others.
At the Health Service there was no lift. Ms Sluggett was required to negotiate steps from the footpath into the building; a staircase up to the first floor; and a further staircase to the second floor where her office was situated. The staircase to the first floor was a conventional staircase with a landing in the middle and handrails on each side. There were two staircases to the second floor: the more commonly used was a spiral staircase in the middle of the first floor. Ms Sluggett generally used this staircase. However, at the back of the building was a conventional staircase with handrails. There were no obstructions or limitations to the use of this staircase. Ms Sluggett did not need to constantly negotiate the stairs in the Health Service, as most of her work was based in her office. Nor was she isolated in that office, as there were other offices, the library and the kitchen situated on that floor, and toilet facilities at that level.
There is no doubt Ms Sluggett had difficulty in getting around the University premises because of her disability, and faced difficulties at the Health Service with the stairs because of her disability. However, that she faced difficulties and had to negotiate stairs, doors and distances in walking, does not necessarily lead to the conclusion the respondent has discriminated against her in relation to the provision of means of access to the premises.
In considering s.23(2) of the Act and the notion of unjustifiable hardship, it is necessary to look at all the circumstances of the particular case. These include the nature of the site of the respondent's campus on which its premises are located; the nature of Ms Sluggett's complaint and concerns; and the fact the respondent has no control over the nature of the premises at the Health Service.
I am satisfied many aspects of the general complaint Ms Sluggett had about her access at the University campus cannot be sensibly addressed at all by the respondent: long distances between buildings; the difficulty of accessing the ring route bus because the presence of other students and bags made her feel anxious about negotiating the step into the bus; the presence of students on the stairs within the University campus; the fact that walking across the courtyards exposed her to slippery paths if it had been raining (where she could have walked a longer distance around the periphery of the court yards under shelter); the number of doors to be negotiated going in and out of buildings; and her general problem of carrying her bags and books. It appears to me that requiring the rectification of the above matters by the respondent is not even a matter to be considered in terms of unjustifiable hardship: their rectification is an impossibility.
Other matters of which Ms Sluggett complained at the Inquiry are matters which might be able to be addressed by the University: in particular the provision of more lifts in more open public areas; fewer heavy doors to be opened and shut which might be addressed by the provision of automatic opening doors; more seats enabling pedestrians to rest; the pruning and general maintenance of shrubbery growing over or nearby handrails; or the provision of her classes in other parts of the University where she might not come across so many physical barriers which caused her pain and tiredness. At the Health Service, although the University could not exercise any control over the nature of the premises, there could perhaps have been negotiations whereby Ms Sluggett was either not placed in those premises at all, or had her office elsewhere, as suggested by Ms Perkons.
In considering the issue of unjustifiable hardship in relation to these particular matters, in my view it is relevant to take into account that Ms Sluggett was aware of the nature of the conditions of the University campus and possible issues of access. This could not in itself preclude liability in the respondent, but is relevant to a consideration of why the respondent did not forsee the nature of the difficulties Ms Sluggett encountered. Further, her placement at the Health Service was not put in place until she had inspected the premises, discussed the placement with Ms Perkons, and, indeed, discussed her disability with Ms Perkons, and then signed a contract concerning her placement. The other factor that I consider relevant here is Ms Sluggett's own disclosure of her disability. Although in itself a failure of disclosure is unlikely to be sufficient to preclude liability in the respondent, nevertheless I consider it is a relevant circumstance in this case: I am satisfied the particularity of Ms Sluggett's disability was not raised in a way in which, in this case, it could be adequately addressed by the respondent. I note the decision of Sir Ronald Wilson in X v McHugh ((1994) EOC 92-623), to the effect that disclosure, or the respondent's knowledge of a disability, is not a relevant factor in the success of a claim for unlawful discrimination, but I am of the view that as one factor among a number of others, the lack of particularity in the complaints made by Ms Sluggett during the course of the year as to how the nature of the respondent's premises was impacting on her disability and therefore disclosing her particular disability, is a relevant circumstance in this case.
It was clear Ms Sluggett had a significant limp, and all her lecturers and the staff, including Ms Perkons at the Health Service, were aware of this. However, Ms Sluggett did not disclose until the end of 1993 that the medical condition itself was imposing significant difficulties on her in relation to her work because of her physical exhaustion resulting from what she described as her difficulties of access. I am also influenced by the fact Ms Sluggett's complaints throughout the year concerning access related to difficulties of getting from her home to the University, to the outside venues where some lectures were held, and to the Health Service. They did not refer to difficulties at the University or the Health Service. Nor were any difficulties Ms Sluggett may have had when at the premises so self evident as to necessitate some action being taken, independent of complaint by Ms Sluggett by the University. At the Health Service, the staff were aware Ms Sluggett had difficulties with the spiral staircase and saw her taking one step at a time. However, although she stumbled on the stairs (as, no doubt, did others), no one saw her fall, and nor did she make any complaint.
Further, it is clear on her own evidence Ms Sluggett did not avail herself of the alternative routes at the University or in the Health Service. Ms Sluggett's evidence was that she always used the spiral staircase, not the conventional staircase at the Health Service. I am satisfied Ms Sluggett was aware of the route through the University which she was able to access without the need to climb stairs, since 1988, but did not avail herself of it. Although in 1988 she may have had had no particular difficulties, her evidence was that in 1992 she was becoming tired much more easily as her symptoms of Post Polio Syndrome developed. However, she did not then avail herself of alternative means by which she could conserve her energy and cause herself less distress. It is clear she had been provided with information which would enable her to obtain a key so that she could use the buzzer which would have a much more positive consequence in that it would be heard not just if someone happened to be passing. Her evidence was she was unaware of the buzzer, but it is not concealed in any way, and was clear when the University premises was viewed in the course of the hearting. I accept the buzzer was in place in 1992 and 1993.
In short, in relation to the issue of unjustifiable hardship, it is my view many of the aspects of the premises which were difficult for Ms Sluggett are unable to be addressed by the respondent because of their physical nature. The respondent cannot alter the nature of the site of its premises, and modification to address the access issues referred to by Ms Sluggett at the hearing is, if not impossible, impractical and unreasonable (even were they properly to be regarded as presenting an inappropriate barrier to a person with disabilities). Addressing these aspects by the respondent would require very significant outlays of money. In particular, the provision of additional lift access, in addition to lifts already existing throughout the University, would be very expensive. There was no evidence before me as to cost, but I accept it would be very significant indeed. The installation of automatic doors would be disruptive and costly. Ms Sluggett identified 16 doorways through which she had to go, and I am satisfied it would be difficult to replace all or perhaps even the majority of these (for financial and other reasons) with automatic doors.
In addition however, Ms Sluggett herself did not draw the University's attention to her difficulties of access in such a way that the University could have addressed them. This is to be taken into account in considering all the circumstances of the case.
Ms Sluggett could have advised Dr Vreugdenhil she would or might have difficulties at the Health Service because of the nature of the premises: had she done so and no alternative placement been arranged, it seems to me Ms Sluggett would have had a more legitimate complaint. I am quite satisfied she did not do so at any time during the course of the placement, and nor did she advise Dr Vreugdenhil or Ms Perkons that the nature of the premises itself constituted a difficulty in her successfully completing her placement. I note in her discussions with Mr Moller and Professor Barber in 1993, Ms Sluggett did not refer to difficulties of access within the University as the cause of her academic problems: rather, she complained about difficulties in getting into the University from her home, and about her personal problems and relationships. While Ms Sluggett, although aware of the nature of the premises at the University and the Health Service, apparently did not realise she might become more ill and more affected by her disability in the course of her studies, nor did she bring her disability and its increasing difficulties to the attention of the respondent in such a way that her difficulties may have been able to be addressed. I note Ms Buchan's evidence was that she would have emphasised to Ms Sluggett that she needed to "pace herself".
Ms Sluggett was provided with accommodations relating to her academic complaints: Ms Sluggett argued these academic problems were a direct consequence of difficulty of access, because her exhaustion resulting from her increasing disability made it difficult for her to attend classes and concentrate. However, I am satisfied appropriate accommodations (in the absence of any explanation about her disability) were provided to Ms Sluggett, and her poor academic record from 1993 was a consequence of her failure to meet required academic standards. While it is likely her disability had an impact on her capacity to meet these academic standards, it is not possible to make such accommodations in relation to academic standards as to dispense with them or to limit them in a way which is inconsistent with the academic integrity of the course. I am satisfied Professor Barber took these considerations into account when he determined in March 1994 not to give further opportunities for submission of work to Ms Sluggett. His evidence, which I accept, was that despite extensions and other accommodations, Ms Sluggett's work did not meet the required academic standards. Dr Vreugdenhil gave similar evidence concerning the quality of her Fieldwork B Report. I am satisfied that whatever the impact on her academic capacity of her disability may have been, her poor academic record is not a consequence of any difficulty of access to the premises which the respondent could reasonably have addressed.
Ms Sluggett alleged that the respondent did not ensure, following her complaints in the course of the year, that sufficient attention was paid to addressing them: that no one sat down with her to devise a program which could overcome her difficulties. I do not accept this, for two reasons. In the first place, the onus must be on the complainant to identify and communicate the nature of her complaint to the respondent, before there can be any obligation on the respondent to address it. I am of the view, on the basis of the evidence, that Ms Sluggett did not do this. In the second place, the evidence appears to me to establish that insofar as her complaints were communicated, there were significant attempts by Mr Moller, Professor Barber, and through the University's Student Appeals process (although the latter was after the event, in some senses), to do so. There were significant attempts to identify, accommodate and address Ms Sluggett's difficulties.
Ms Sluggett did not at any stage provide the respondent with adequate or appropriate information which would have enabled the respondent to make alternative accommodations: in particular, alternative arrangements for the placement in the Health Service. Ms Sluggett was aware that, if she had significant difficulties such that the placement was not able to be successfully pursued, a different placement could have been arranged: indeed, she had done this (for other reasons) in the first semester placement. She did not suggest such concerns in the Fieldwork B placement.
22.214.171.124 Section 5 of the Act - Direct Discrimination
There was no argument presented at the Inquiry that Ms Sluggett had been subjected to direct discrimination within the meaning of s.5 of the Act. I am satisfied Ms Sluggett was not treated differently as a result of her disability to the way any other person without that disability would have been treated.
There were some allegations at the hearing by Ms Sluggett that she had been told by Dr Vreugdenhil that she had to come to terms with her disability and that she had been laughed at when she had fallen down the stairs at the Health Service. Both these allegations were denied, and I am not satisfied they occurred. In any event I am satisfied they do not relate to any issue of access to premises as is before this Inquiry.
126.96.36.199 Section 6 of the Act - Indirect Discrimination
In considering the issue of indirect discrimination, the legislation requires the establishment of four factors: the first is that Ms Sluggett was required to comply with a requirement or condition; it must be one with which a substantially higher proportion of persons without her disability are able to comply; the requirement must be not reasonable having regard to the circumstances of the case; and it must be the case that Ms Sluggett is not able to comply with that requirement.
The requirement in this case must arise out of access to the premises. Ms Sluggett was, as I understand it, not required to attend at the University premises in any formal sense. Clearly it was for her benefit to attend lectures, tutorials and the library, but Ms Sluggett could have completed her studies without such attendance. In this sense, as attendance of class was not a part of the assessment scheme or required for the completion of the course (other than for the Fieldwork placements), there was no such requirement.
I accept however, in a less stringent and formal sense, Ms Sluggett was " required" to attend her classes. It would be much more difficult to successfully complete her course if she did not attend her classes which were principally held in the respondent's premises. There were some difficulties of access Ms Sluggett in attending at the premises which did not face a substantially higher proportion of other students at the University. However, I am of the view Ms Sluggett was able to comply with the requirement, such as it was: there was a different route which would significantly reduce the difficulties in access she faced, but Ms Sluggett did not avail herself of the alternative route within the University in general. I am satisfied that in so far as there was a requirement for her to attend classes within the University, this was reasonable, and she was able to comply. Her ability to comply with this requirement was affected by her disability and her increasing debility as a consequence of the development of Post Polio Syndrome, but this aspect of her circumstances is in my view relevant to a consideration of s.23(2) and s.11 of the Act, (access to premises and unjustifiable hardship), rather than s.6(c).
In relation to Ms Sluggett's attendance at the Health Service, circumstances were slightly different. Ms Sluggett was "required" to complete a placement for the successful completion of the subject Fieldwork B, and her placement was made at the premises of the Health Service. However, I am not satisfied Ms Sluggett was "required" to attend a placement at those particular premises: she selected a particular area of research and an attempt was made to provide a placement which would facilitate that particular research. Ms Sluggett attended the premises, inspected them, discussed her placement and her disability before agreeing to accept the placement in those premises. She at no time drew the attention of her supervisors to any difficulties which she had with the premises. The only complaint she made at any time in 1993 concerning this placement was difficulty in getting to the premises from her home.
Nor was there evidence Ms Sluggett was not able to comply with any requirement to attend the premises as part of her placement: she made arrangements to which she referred in the initial discussions about her placement to cover time she might have off sick during the course of the placement, and her placement was extended to allow her to make up time when she was ill. Further, she was given specific permission to work at home if her physical condition made this more appropriate. Although she gave evidence she had found it extremely difficult to negotiate the spiral staircase and the front staircase at the Health Service, this evidence is not supported by that of other witnesses, or of contemporaneous complaints made by Ms Sluggett. Further, she was able to access her office by using the conventional stairs at the rear of the building. I am not satisfied Ms Sluggett was not able to comply with any requirement relating to access or attendance at the Health Service premises. At the same time I accept there were real difficulties in accessing these premises because of her disability and her increasing general debility as a consequence of it. She discussed her disability with Ms Perkons prior to the placement commencing but did not raise any concerns in the course of the placement, and I am satisfied such concerns were not apparent in the course of her placement. These factors are relevant to whether the requirement was "reasonable having regard to the circumstances of the case". In the absence of complaint or attention being drawn to the difficulties, and the difficulties of access not being self evident, it is my view indirect discrimination under s.6 of the Act cannot be made out in relation to Ms Sluggett's placement at the Health Service.
Further I am satisfied indirect discrimination cannot be made out in relation to Ms Sluggett's access to the University campus premises. Apart from the issues discussed above, I am satisfied that "having regard to circumstances of the case", and again taking into account the nature of the complaints Ms Sluggett made in the course of her studies, her familiarity of the premises, the nature of the premises, and the alternative routes and services available to students with disabilities, it is not possible to say any requirement of access to the premises imposed by the respondent on its students and in particular on Ms Sluggett was not reasonable.
For these reasons I am satisfied there was no indirect discrimination against Ms Sluggett in the circumstances of her studies at the University in 1992 and 1993.
I have spent a very significant time in considering the outcome of this Inquiry. The Inquiry itself was very lengthy and protracted and changed its nature significantly in the course of the Inquiry. Initially Ms Sluggett's complaints appeared to relate to the issue of access to the respondent's premises, in the sense of accessing them from her home: her complaints had been the difficulties of negotiating lifts with friends into the University, and public transport to the University, the Health Service and sites outside the University where some other lectures were held. Her complaint then became focussed on difficulties within the University campus, but she conceded in her evidence that these issues of physical access were able to be addressed in other ways by her, such as using the lifts and being dropped off closer to her classrooms. In the second part of the Inquiry, after a protracted adjournment, Ms Sluggett's case became focussed on issues much more akin to a complaint under s.22 of the Act, that is access to education. This was not an aspect of Ms Sluggett's complaint which had been referred to an Inquiry, but significant time was spent in the course of the Inquiry in defining the scope of the Inquiry and whether it encompassed at any level these considerations. Ms Sluggett's case then focussed on two matters, the first being the "requirement" she alleged necessitated her stressful negotiation of many stairs and distances which then profoundly affected her capacity to perform academically; and secondly, the development of Post Polio Syndrome which Ms Sluggett alleged in this second part of the Inquiry was a consequence of the difficulties of access and the physical circumstances of the University premises and the Health Service.
I am satisfied the evidence is not able to establish, on the balance of probabilities, that Ms Sluggett's claim that negotiation of the University premises and those at the Health Service constituted direct or indirect discrimination against her on the basis of her disability, and precipitated her development of Post Polio Syndrome. This appears to be a much more complex issue and one the evidence suggests is not clearly understood to medical science. In any event, I am quite satisfied that whatever the cause of the development of her Post Polio Syndrome, it was not a result of unlawful discrimination against her, direct or indirect, by the respondent. I am satisfied, for the reasons given above, there was no unlawful discrimination against Ms Sluggett by the respondent.
Under these circumstances pursuant to s.103(1)(a) of the Act, I dismiss the complaint the subject of this Inquiry.
Dated this Day of July 2000