MRS J, on behalf of herself and AJ v A SCHOOL
No. H97/168
Number of pages - 16

IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

SIR RONALD WILSON

ADELAIDE, 5 - 7 November 1997 (hearing), 23 March 1998 (decision)

#DATE 23:03:1998

APPEARANCES:

Complainant: in person

Respondent: Ms L. Powell of counsel, instructed by Mellor Olsson Solicitors

Order: application successful

SIR RONALD WILSON:

1. INTRODUCTION

This is an inquiry, pursuant to section 79(1) of the Disability Discrimination Act 1992 (Cth) ("the Act"). The complaint was made by a mother on behalf of her daughter who had been a student at the School and also on her own behalf. There may be a question as to the capacity of the mother to be a complainant in her own right, but this issue may be deferred for determination if necessary later in these proceedings.

Because of the personal sensitivity of the evidence to the student, I made an order at the commencement of the inquiry, under s. 87(1)(c) of the Act, that any information that might enable her or her parents to be identified must not be published. In pursuance of that order, I have chosen in these reasons to refer to the student as "AJ" and to her parents as "Mr J" and Mrs J" respectively. From time to time, I may refer to the mother simply as "the complainant".

In addition, at the request of the School during a directions hearing prior to the release of these Reasons, I directed that the identity of the School be suppressed until the School had been given an opportunity to consider the Reasons and make any submission in relation the continuation of the suppression order. Consequently, in the version of these Reasons initially released to the parties, the respondent is referred to as "the School", and other names, including staff, have been replaced by synonyms.

The complaint was lodged with the Human Rights and Equal Opportunity Commission ("the Commission") on 12 August 1996. The central allegations against the School were of direct and indirect discrimination in relation to AJ's education whilst she was enrolled in the School and of two instances of harassment occurring on the same day towards the end of her time at the School.

The complaint was investigated by the Disability Discrimination Commissioner and an attempt was made to settle the matter by conciliation. This was done in accordance with s. 72(1) of the Act. By letter dated 31 July 1997, the Commissioner, in accordance with s. 76 of the Act, reported to the Commission that the complaint was not amenable to conciliation and referred the matter for inquiry and determination.

The inquiry proceeded in Adelaide on 5, 6 and 7 November 1997. By agreement between the parties in the course of the inquiry, it was agreed that at that stage the evidence should be confined to the question whether the complaint was substantiated. Should it be substantiated, it was further agreed that the inquiry would continue at a later date for the purpose of receiving evidence relating to the content of any determination that might be made under s. 103 of the Act.

At the conclusion of the evidence on 7 November 1997, it was agreed that the parties would make their submissions on the evidence in writing, and I reserved my decision on the question of liability.

I should say a word about the representation of the parties. The School has been represented by lawyers at all material times and received leave to be represented at the hearing by Counsel. While Mrs. J had the benefit of some legal advice in the course of preparing for the hearing, she appeared in person and therefore was required to handle the hearing without professional assistance. It was a complex hearing with many witnesses. I want to say that she met the difficulties which this situation inevitably imposed upon her with courage, tenacity and skill, and that I do not believe that the presentation of the case for the complainant has suffered through the lack of legal representation.

2. THE COMPLAINT

2.1 Background

Mrs J argues that the history of AJ's schooling in the primary school years is relevant. She commenced at East Adelaide Junior Primary School in 1985. In 1987 she was diagnosed as having Perthes disease, which is a disorder of the right hip, and she underwent an operation in about August of that year. Her mother states that the teachers were very supportive and AJ "got through a tough year really well".

She moved out of the junior primary school into grade three in 1988. It was not a good year. She had another operation and, as AJ said, "I had some troubles there". It was during this year that she was taken to see Dr Tiller, a psychiatrist, and these visits continued for a time. In the result, she told her mother she did not wish to continue at East Adelaide. So she was taken out of that school and spent 1989 at St. Monica's, a local school. She was happy there but after a year requested to go to St. Aloysius because a friend was going there. She spent 1990 and 1991 in St. Aloysius. However, she became unhappy during the year and did not always want to go to school. Her mother took her back to Dr Tiller, but he could not find a problem. He had not at any time diagnosed AJ as experiencing depression.

In the course of 1991 (year 6), AJ's parents decided that she should repeat year 6. She agreed to do so, so long as she went to another school, because she did not wish to be embarrassed in front of her friends. In her mother's words, she then put in a good couple of years (years 6 and 7) at Walkerville Primary School.

2.2 The School experience - an overview

In July 1993, AJ was enrolled to commence her schooling in the School in year 8 in 1994. Mention was made of her Perthes disease in the enrolment papers, and in the enrolment interview it was agreed that she required no special consideration save that in the case of physical education, she should not be pressed to undertake more activity than she herself wished.

Her outdoor activities were listed as ice skating, horse-riding and swimming. It was not then anticipated that there would be any problem with stairs. With this understanding in mind, she was enrolled in H House, a house whose home rooms were located upstairs. Furthermore, most of the classes for year 8 H House students were taught in upstairs rooms.

Unfortunately, it was not long into her school experience before AJ's hip began trouble her. As 1994 proceeded, the problem worsened, causing her a considerable degree of pain and making it often difficult, if not impossible, for her to negotiate the stairs, particularly when she was forced to use crutches. Her absences from school became increasingly frequent and on those days when she was well enough to be taken to school by her mother she often worked in the Library, which was located downstairs.

She had a major operation on her hip in June 1995 and with the School's consent the parents withdrew her from the School for terms 2 and 3 in 1995. The operation resulted in significant improvement and she was able to cope much better in term 4 of 1995. However, she had missed so much work that, although she sat for the final examinations for the year, her progress was described only in general terms in her report.

Term 1 of 1996 began well, but unfortunately just a few days into the term AJ attempted to take two steps at a time on the stairs and jarred her hip. This brought a return of pain in the hip which required her absence from the School for approximately three weeks and when she returned at the beginning of March 1996 she was again dependent on crutches. She did not return to the School after the term ended.

2.3 The allegations

In substance, the complaint alleges that the School, in its provision of educational services for AJ, engaged in both direct and indirect discrimination. The discrimination was allegedly indirect insofar as the School imposed a requirement or condition that AJ should attend upstairs classrooms in order to access the education provided by the School. This was a requirement or condition with which she could not comply and was unreasonable.

The discrimination was allegedly direct insofar as AJ was treated less favourably than were students without a disability in that she was not provided with adequate work or supervision during those periods when she was unable to attend the School or worked in the library. It is also alleged that two of her teachers, when she returned to school on crutches after her absence in the first term of 1996, made unkind remarks to her which constituted harassment within the meaning of s. 37 of the Act.

The sections of the Act which are relevant to the allegations which I have described are sections 5, 6, 22 and 37. Mrs J mentioned a number of other sections which she claimed to have been breached, but I do not propose to discuss those sections because they do not add anything of substance to the ones I have mentioned. The ones to which I have referred, together with s. 3, which sets out the objects of the Act, are set out below.

3. THE LAW

Sections 3 sets out the objects of the Act, which are stated as follows:

OBJECTS

3 The objects of this Act are:

(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

(i) work, accommodation, education, access to premises, clubs and sport; and

(ii) the provision of goods, facilities, services and land; and

(iii) existing laws; and

(iv) the administration of Commonwealth laws and programs; and

(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

Section 5 defines disability discrimination in the following terms:

DISABILITY DISCRIMINATION 5 (1) For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

Section 6 defines indirect disability discrimination as follows:

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 a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

Section 22 of the Act defines discrimination in education:

EDUCATION

22(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the other person's associates :

(a) ...

(b) in the terms or conditions on which it is prepared to admit the person as a student.

22(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates :

(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or

(b) ... or

(c) by subjecting the student to any other detriment.

22(3) ...

22(4) ...

Section 37 deals with harassment in education:

HARASSMENT IN EDUCATION

37 It is unlawful for a person who is a member of the staff of an educational institution to harass another person who:

(a) is a student at that educational institution ...; and

(b) has a disability;

in relation to the disability.

4. THE EVIDENCE

4.1 Introductory comment

There is an enormous amount of detail in the evidence, covering the progress of the Perthes disease and its effect on AJ, the extent of her absences from school, her varying capacity to attend lessons held in upstairs classrooms, the location of particular classes from time to time, and the degree and nature of special assistance afforded to her. Inevitably, with so much detail, coming from many different witnesses, depending substantially upon recollection after the passage of a considerable period of time, there are inconsistencies. I have spent considerable time analysing and weighing up this evidence in an effort to arrive at a sufficiently accurate picture of the course of events over a period of almost two and a half years of her schooling at the School to enable me to deal with the issues. If at times I appear to generalise in my discussion of the evidence, it does not mean that I have not wrestled with the detail of the relevant evidence in order to arrive at my conclusions.

4.2 Was there indirect discrimination?

The complaint is quite precise in making this allegation. It is said that the School was in breach of s. 6 of the Act because it imposed a requirement or condition that AJ regularly attend classes which were located upstairs, that she could not comply with that requirement or condition which, having regard to the circumstances of the case, was not reasonable.

There is no doubt that in order to access her classes in a number of subjects, AJ had to negotiate the stairs.

However, the School says there is a short answer to this charge. It is that no such requirement or condition was ever imposed.

At the beginning of AJ's first year at the School - that is, in 1994 - she had been placed in H House, one of the six houses into which all students in the middle school years 8, 9 and 10, were placed. The member of staff in charge of H House was Mrs M. Unfortunately, the home class for H year 8 class was located upstairs; the home class was the class in which the students in that group spent a good deal of their time and would ordinarily have their lockers. The evidence is that the normal activities involving attendance in the home class would require a student to negotiate the stairs fourteen to sixteen times each week.

Year 8 began without any suggestion that AJ would have a problem with the stairs. Nothing had been said in any of the enrolment procedures to alert the School to the desirability of placing her in a House which would mean that her home class and most other classes would occupy downstairs rooms. However, Mrs M testified that during March 1994 some of AJ's classmates alerted her to the fact that she was having a bit of trouble with the stairs. It was Mrs M's practice to keep a notebook recording conversations she had from time to time with the parents of students under her care. She said she had such a note recording a telephone conversation on 17 March 1994 when Mrs J rang her to discuss AJ's hip problem. Although Mrs M very fairly said she had no personal recollection of the conversation, on the basis of the note of the conversation recorded contemporaneously she was certain that she had responded to Mrs J's concern by suggesting that AJ be moved from H House to a downstairs House.

Mrs M said further that Mrs J had responded to her suggestion with a categorical "NO". She mentioned that in her note she had underlined the word "No" three or four times, thereby indicating the categorical nature of the response. The reason Mrs J gave for rejecting the suggestion was that her daughter had made some very good friends in H House and would not wish to lose them.

On the other hand, Mrs. J's evidence is to a different effect. She has no recollection of the conversation of 17 March 1994 and denies that there was any suggestion of a change of house as early as that. Her recollection of AJ's early days at the School is that the first few months went well, that she was very happy and had made good friends in H House. Although she had been absent from School for twelve days during first term, the reason for these absences were the normal ailments that any schoolchild could expect; they were not associated with leg pain resulting from her hip. At the same time, she confirms that even if a change of House had been suggested, either in March 1994 or at any later time, she would have rejected the idea, because AJ's friends were very important to her.

I pause to say that, in my opinion, it would have been understandable for Mrs J to reject a change of House as early as March 1994 because at that early stage - although such a change would have been easier the earlier it took place - the serious problems that developed later with AJ's disability would not have been anticipated.

In fact, Mrs M's evidence is that she raised the question of a change of house again in April 1994, shortly before the end of the first term, but again the possibility was rejected. Mrs M then went on long service leave for terms 2 and 3, returning to the School for the final term of the year.

It is common ground, however, that in a formal meeting between Mrs J and the Head of the Middle School, Mr D, early in term 2 to discuss the possibility of changing AJ's classes to downstairs rooms, Mr D raised the question of a change of house but it was rejected.

I should also mention that, in her cross-examination, AJ said she thought her mother had told her that Mrs M had suggested a change of house. However, she was quite emphatic that "I liked the people in it, so I didn't want to change, and that was that". She could not see why H House could not be moved downstairs.

However, I note that in re-examination AJ said that the only time a change of house had been discussed was after her parents had talked to Mr D in May 1994.

Although Mrs J was critical of the School and many of its staff members, that criticism did not extend to Mrs M. She acknowledged that Mrs M had always been very concerned and caring for AJ and her particular difficulties. The only qualification was that she was always very busy and was often unavailable when Mrs J attempted to contact her.

However, she maintained her disagreement with Mrs M's evidence about the suggestion of a change of house being made on 17 March 1994 or later in first term, pointing out in her final submissions that there was no corroboration and the note on which Mrs M had relied to refresh her memory had not been produced.

I must therefore resolve this conflict of testimony. I pause to observe that I do not believe that any witness is deliberately seeking to present a false picture of the facts. Any differences in the evidence are more likely to be the result of misunderstanding or faulty recollection.

When I came to reflect on the evidence, having reserved my decision, I decided to seek the production of Mrs M's notebook in which she had recorded a note of the telephone conversation with Mrs J on 17 March 1994. In making that decision, I was mindful of the fact that it was understandable that the book had not been produced in the course of the hearing. Mrs J did not know that she could have asked Mrs M to show her the book. Without such a request, the respondent had no right to produce the book.

The book has now been produced and I have considered further submissions from the parties in relation to this additional evidence.

In the result, I accept Mrs M's evidence, supported as it is by her contemporaneous note. Consequently, I find that the offer was made and repeated during the first term of 1994. Mrs. J agrees that Mr D made a similar offer during their meeting in May 1994, and I also accept his evidence that a change of house as one of the options was mentioned again at the beginning of the 1995 school year.

For the sake of completeness, I should add that Mr A, who took over Mrs M's role as Head of H House whilst Mrs M was away on leave throughout terms 2 and 3 of 1994, testified that he also proposed a change of house to Mrs J as the best solution to the problem of the stairs. He explained that it would have been very difficult to comply with Mrs J's request that H House be moved downstairs because it would have meant disrupting the existing arrangements applicable to 200 students; furthermore, as Mr A explained, the teachers go to considerable pains to create an appropriate learning environment in their allocated classrooms and are reluctant to move to different classrooms.

In the light of my findings, I am satisfied that the School did not require AJ to access the upstairs classrooms in order to avail herself of the educational services on offer. Consequently, the complaint of indirect discrimination must fail, as - in the words of s. 6 of the Act - there was no "requirement or condition" imposed by the School upon AJ which persons without her disability would be more able to comply with.

It is true that computing was only taught upstairs in 1994 and was not offered as a subject in 1995. I agree that the external stairs to computing were impossible of access for a student on crutches, but I find that the internal stairs were always available to AJ and that she was informed of this. Overall in the course of the case, very little attention was paid to computing as a matter of discrimination. AJ said that she was not worried about computing, and a computer was available to her in the library. I am unable to make any finding in favour of the complainants in that regard.

Although it is strictly not necessary to decide the point, I digress to clarify what I believe is a misunderstanding which has distressed Mrs J greatly. In her evidence, she testified to a conviction that in her meeting with Mr D in May 1994, he asked her to remove her daughter from the School. Mr D denied that he had made such a suggestion and said that he had no authority to make such a request, nor did he wish to see AJ leave the School. I find that Mrs J has misunderstood the content of the conversation which focussed on her request that the School provide a lift to assist her daughter in accessing the upstairs classrooms. Amongst other things, Mr D said he did not know of any School in the neighbourhood which provided lifts, but that if Mrs J was able to find one then she may wish to consider transferring her daughter to that school. The misunderstanding has been a source of considerable concern to Mrs J and was most unfortunate.

4.3 Direct discrimination: Was there less favourable treatment?

The second head of claim was direct discrimination. In the context of the case, it is a complaint that AJ was treated less favourably than other students because of her disability.

In my opinion, the School could not discharge its responsibility to educate AJ simply by offering her a change of House. Even though the offer was repeatedly made and repeatedly rejected, perhaps unreasonably, the School remained under an obligation to provide the educational services that AJ required.

The claim of less favourable treatment must therefore be determined in the light of the circumstances that existed. Of course the history of AJ's time at the School is dominated by her illness and the pain it imposed upon her. This was the primary cause of the disastrous outcome of her time at the School. It accounts for her frequent absences from the School and from her friends; it accounts for the embarrassment of being different from the other students, particularly when she was forced to rely on crutches; it accounts, at least in part, for the missed lessons and the consequent lack of self-esteem and a sense of pride and achievement in her work.

The critical question is whether the School was partly responsible for this personal distress and her lack of achievement because it treated her less favourably than it treated the other students.

It will be remembered that s. 5(2) of the Act ensures that it is not just a question of treating the person with a disability in the same way as other people are treated; it is to be expected that the existence of the disability may require the person to be treated differently from the norm; in other words that some reasonable adjustment be made to accommodate the disability.

The following points are relevant to a consideration of this question :

1. The fact that AJ left the School in an angry and frustrated state, with a sense of failure and worthlessness brooding over her does not necessarily answer the question against the School. It may be that such an outcome was the result of the deep disappointment following the setback to her recovery in the first term of 1996 when she hurt her hip on the stairs and was absent for seventeen days and was again dependent on crutches when she returned. It must have seemed as if the disastrous year 1995 was going to repeat itself all over again.

This scenario gains some credence from Mrs M's note of a telephone conversation with Mr J on 26 February 1996. Mrs M testified that it was compiled accurately from a note made at the time of the conversation. This note is also important for another reason, to which I will refer, and I must clarify its status. Mrs M produced a copy of her note in the course of her evidence, but it was only marked for identification pending the production of the original. I overlooked returning to the matter before the completion of the hearing and subsequently reminded the parties that there was an undertaking from the respondent to produce the original. However, a subsequent search by the respondent failed to find the original. I received further submissions from Mrs J concerning my treatment of the copy note produced by Mrs M. She argues that I should treat the document with caution and observes that Mr J said in evidence that it was an inaccurate report.

Having considered these submissions, I have decided to receive the copy in evidence. I am satisfied of its general reliability and believe that it is in the interests of the complainants that it be received.

I quote some passages from the memorandum:

[AJ] will not be back at school for some time. Between a small growth spurt and an accident on the [H] stairs, she has regressed to the 1995 pre-operation state of constant pain. She will need surgery to fix the problem.

[Mr J] says he's prepared to give [AJ] and [the School] one more chance after her operation; but if the same thing happens again, he will send her to a state school. He was quick to stress neither school nor students were responsible for his decision; finances and frustration at his inability to keep [AJ] healthy were to blame.

[AJ] is devastated and extremely depressed as well as in constant pain. She thinks of herself as inadequate and dumb. She is desperately in need of some support. Is it possible for the school to supply a couple of ex-[the School] uni or yr 12 students to give some coaching lesson so she feels some link with her education? It would only be for a couple of hours a week, she couldn't do more. In this way she would feel less "dumb" and at least feel like she's part of something.

It would also allow her to focus on something else other than the pain. Any suggestions to help her are needed and welcomed.

[M].

cc to CJ & MLL.

2. How did the School respond to this desperate cry for help? The short answer provided by the evidence is that there was no response from the School, except that Mrs M, on one of the rare later occasions when she "bumped" into AJ in the schoolyard, gave her a teddy bear and a get-well card.

Mrs J, in cross-examining Mrs M, put the issue directly in this way:

And I also put it to you that [Mr J] asked you to try to come up with a way to help us and you didn't call him back about that?

Mrs M's answer, as I read it, conceded the point. She said, inter alia,

There was no action apart from letting [L] and [JS] have a copy of what was transcribed on that from those notes.

So this was the position at 26 February 1996. On 1 March, AJ returned to the School and became very upset with what she perceived to be a display of rudeness from two of the teachers. Mrs J says she then telephoned Mr JS, the School Counsellor. He let the relevant teachers know that AJ was upset by the manner in which she had been greeted and apparently they were nicer to AJ after that. Mrs M said she only saw AJ on three or four occasions after that before she left the School.

3. On balance, despite its setbacks, 1994 was not a bad year. According to the Melbourne surgeon, Mr Graham, AJ was absent from school for 14 weeks of the year; to miss so much of the school year, with its contact with friends and the rhythm of learning must have imposed considerable psychological strains on her. Mr A, deputising for Mrs M during the second and third terms, was responsive to AJ's needs for work while she was at home and working in the Library.

There was a reasonable flow of work from teachers, although I accept Mrs. M's evidence that there developed a sense of frustration in the teachers because they never knew when she was going to come in to the School and the return of work was erratic.

Mrs J acknowledged that AJ's attendance was irregular because the pain came and went. She says they got AJ's work back to the teachers when they could. Although in retrospect, Mrs J believes that the teachers could have been more attentive in supervising AJ and providing her with work, she also said that there were only a couple of classes when AJ was left in the Library without work.

Furthermore, the term reports for 1994 on the whole were positive and encouraging, as can be seen from the examples referred to below:

The report of term 1 in 1994 furnished comments as follows :

From her class teacher:

[AJ] is a cheerful, pleasant student who has been a willing form participant throughout the term. Unfortunately, her absences have impeded her progress.

From Mrs M:

We hope [AJ] will be able to settle into a more consistent form after the holidays. Her attitude is faultless.

From Mr D:

Much good progress by [AJ] which she will be able to build on next term.

From the Principal:

There are many positives here that I hope we can develop next term.

The second and third term reports were likewise positive and encouraging, while acknowledging the difficult circumstances created through her absences from class.

The fourth term report included the following :

From her class teacher:

Absences have hampered [AJ's] academic progress to some degree. However, she has ability. [AJ] is polite and receptive and has socialised well with her peers.

From Mrs M:

[AJ] is to be commended for 'surviving' this year. I sincerely hope 1995 will be more positive for her.

From Mr D:

[AJ] has battled on well under frustrating circumstances. Well done !

From the Principal :

It is indeed to be hoped that [AJ] will find next year more satisfying. Some pre-year 9 preparation would be beneficial.

With respect to the Principal's final comment, I note that he concluded the report at the end of 1995 with the hope that 1996 would be a good one for AJ, and continued:

Some preliminary reading will be to her advantage.

Unfortunately, there is no evidence to show that either the School or the family followed up either of these two suggestions.

4. 1995 was a disastrous year, and the operation, with the disappointment of successive postponements, must have been a debilitating factor. It was eventually carried out on 1 June 1995. It was the decision of Mr and Mrs J to withdraw AJ for both the second and third terms, which must have destroyed any chance of a sense of continuity. The School did not neglect AJ entirely during her absence, sending flowers and goodwill messages. It also provided copies of the mid-year examination papers so AJ could retain some idea of what was going on. Nevertheless, despite the formal withdrawal from the School, it would have been pastorally helpful for some physical contact to have been maintained with her, and for some effort to understand the progress she was making with Open Access learning during that period. The School did not attempt to ascertain how AJ got on with Open Access, or to ascertain her state of knowledge when she returned in term 4.

5. Early in first term in 1995, Mr D went to considerable effort, in consultation with Mrs J, to transfer some of AJ's classes downstairs. However, the effort was only partially successful, with several important subjects remaining upstairs. One subject that provided difficulty was Maths. AJ began the year with Mr JE, upstairs, in a small class with individual tuition which AJ appreciated. It was a class in the lower setting of the middle Maths stream. However, she was considered capable of handling the middle setting of this stream and was transferred to Mr S's class, which met in a downstairs room. It was a decision made by the School in what was believed to be AJ's best interests. Unfortunately, AJ felt that it was all beyond her and it embarrassed and upset her because she felt Mr S exposed her difficulty with the subject to the rest of the class. AJ's time in the Library during the first term in 1995 was less successful, although this was not apparent to the Librarian, Mrs MN. Her absences were more frequent.

It was not a happy term for AJ. The crutches were in evidence a good deal and the coming operation and the uncertainty surrounding it took their toll.

6. It may sound a strange thing to say, but I believe it would have been easier for the School if both Mrs J and AJ had complained more. Mrs MN explained that AJ always appeared to be working whilst she was in the Library and that she frequently asked her if there was anything she needed but the answer was always in the negative. AJ appeared to be diligent and resourceful, yet she says that for much of the time she spent in the Library she felt lonely and depressed, lacking any sense of achievement or of being worth anything. Again, Mrs J performed wonders in her efforts to support AJ and meet her needs, but she agrees that she was not a very communicative person; she didn't believe in writing notes to teachers. She expected them to be doing their job.

The Principal said the School received no written complaint from AJ or her parents concerning her schooling or pastoral care at any time. AJ herself always appeared to be self-sufficient; she was not the sort of girl who would complain. At no time did she ever approach the School Counsellor to share her problems; she said it would embarrass her to be seen to be seeking his help. Similarly, with Mrs MN in the Library, AJ did not at any time seek her help.

The meeting with Mr D in May 1994 was the only occasion in 1994 when Mrs J sought a formal meeting to discuss AJ's difficulties. Again, in 1995, the meeting with Mr D to discuss moving some of AJ's classes downstairs was the only formal occasion of meeting in that year.

7. Despite the positive things that I have said about the School's efforts to provide a helpful educational environment for AJ during these two years, I cannot refrain from some criticism. I accept that Mrs M was genuinely concerned for AJ and did all that could have been expected of her. But she had another 150 students in H House to care for and could not give AJ her undivided pastoral care. But in my opinion, there was a clear need, once AJ's school program became so fragmented with her absences from school and her times in the Library, for some one or two persons to be available to her as a personal priority. It could have been her tutor, or the School Counsellor or the Librarian or the task could have been shared between two of these people. AJ needed someone in authority who by their persistence and friendly interest penetrated AJ's innate reserve and appearance of self-sufficiency; someone who would make it their business to know the work she was doing, to ensure that she had work to do and that it was being marked by the appropriate teacher; someone who would know when pain was keeping her at home and who would drop in on her from time to time, just to let her know that someone cared.

The breakdown of relationships between the family and the School is also reflected in another aspect of communication. Mrs J complained that with AJ's frequent absence, the family did not receive the weekly notices regularly. I assume that this complaint must relate to the year 1994, and the first term of 1996, because AJ's younger sister was present in year 8 in 1995 and she was in regular attendance. Notices were handed to each student every Thursday. Mrs J asked why the notices could not have been posted. Mr D's answer was that they would be posted home if such a request was made; otherwise responsibility was placed on the student to receive the weekly notice and take it home to the parents. Similarly with respect to sending work home when a student was unable to attend school; Mr D's comment was that the School expects parents to ask for work to be sent home when the student is well enough to work and added "We don't spoon-feed the students".

I would have expected that AJ's difficulties were of an exceptional character when compared with the normal mishaps that might keep a student from school for a day or so from time to time and would have warranted a somewhat more sensitive response from the School.

I find that the lack of ongoing pastoral care of this quality was not a major factor in its contribution to the breakdown of her psychological health following her leaving the School in 1996, but I find that it was one factor. It would have helped to alleviate the sense of frustration, anger and worthlessness that Mr J spoke about in his telephone conversation with Mrs M in February 1996. Of course, the major factors were the Perthes disease itself, the deterioration that led to the operation in 1995, the hopes of a new beginning that post-operation reports engendered, only to be dashed by the accident early in term 1 in 1996. Such a history was truly devastating in its cumulative impact on AJ, leading to her suicidal thoughts and her later difficulties when attempting to resume her schooling at Glenunga and beyond. The efforts of the School, if made in the direction I have indicated, may have been rejected by AJ and if that had happened it may have simply been a reflection of her own distress, but I find that the effort should have been made.

In coming to this conclusion, I have considered the opinions of the medical experts who were called for the complainant. However, their conclusions must be seen in the light of the history they were given. It is understandable that Mrs J's concern for her daughter's welfare should have led her to place a greater responsibility on the School than in my opinion is warranted by the evidence.

On the other hand, I find the School's failure to heed the cry for help from AJ's father on 26 February 1996 was most unfortunate. It was a critical time in AJ's school experience. A more sympathetic and relevant response may have come too late, but the effort should have been made.

In the result, I find that AJ was subjected to less favourable treatment within the meaning of s. 5 of the Act. Consequently, I find that the complaint of direct discrimination has been substantiated. However, I find that the School was only responsible for 25% of any damages suffered by the complainants.

4.4. Was there harassment ?

It remains to deal with the complaint of harassment. This complaint relates to two incidents which AJ remembers as having happened on her first day back at school after her accident on the stairs early in the first term of 1996. It was on or about 1 March 1996. She says she attended the Science class upstairs on that day. When the teacher saw her, AJ says she spoke to her rudely, saying words to the effect of "What are you doing back here ? You may as well write off the whole year." She then made her sit down and spend the whole lesson copying out notes relating to a previous lesson. The rest of the class was playing cards as part of a science lesson. The teacher explained that it was not possible for AJ to participate in the game because she had missed the lesson to which it related. AJ was embarrassed. The teacher in question said she had no recollection of making such remarks and that it was not the way she would normally talk to students. She explained further that there was no reason for her to make such a comment because she would be taking the students from one self-contained topic to another, with the consequence that there were lots of opportunities to start a fresh topic following an absence.

On the same morning, AJ attended a Maths class, when she felt another teacher was also rude to her, saying something to the effect that she may as well write off the term. The teacher said he considered it extremely unlikely that he would have made a remark like that. He remembered having sat alongside AJ in the course of the lesson, in the same way as he did with the other ten or twelve kids in the class, and discussed with her how she could catch up on her algebra skills. He also secured a special book for her from the library on developmental maths, in the hope she would find it helpful.

Whatever happened on this morning on her first day back at school, AJ was upset when her parents picked her up at lunchtime to take her on a treat by having lunch at a Subway restaurant. They had apparently planned to do this to cheer her up because she was so fragile and vulnerable when she had left home for her first day back at school.

I am unable to accept that these two teachers behaved precisely in the way AJ described. It is to be expected that the teachers would have made some remark, noting her return to class, but there is nothing in the whole of the evidence to satisfy me that either of them would have been deliberately rude to her. They had each been forewarned of the difficulties that AJ was labouring under, and there was no cause for them to be short-tempered about her return, even if they were somewhat frustrated by the frequency of her absences. I find that in her already upset state, almost anything that happened would have had the capacity to upset her.

I believe that she misunderstood whatever was said. The complaint of harassment is not substantiated.

5. CONCLUSION

I find that the complaint of less favourable treatment has been substantiated, notwithstanding that the discrimination was of a relatively minor nature, contributing to AJ's subsequent distress and damage only in the proportion of 25%.

As agreed in the course of the hearing, this matter will now be re-listed to receive evidence and submissions relating to any determination that the parties consider appropriate. However, I take this opportunity to urge the parties to strive for a conciliated outcome consistently with the findings I have made.

I have no doubt that the School always had AJ's best interests at heart. My finding of liability is based on the fact that I am satisfied that in the face of circumstances which were unusual and extremely difficult for all concerned, the School could and should have striven to do a little more. It is time for a process of healing to commence.