Chandrakanthi Sluggett v Flinders University of South Australia
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
KATHLEEEN MCEVOY
No. H96/7
Number of pages - 86
ADELAIDE, 27-30 August 1996, 1-4 April, 8-11 September 1997 (hearing), 14 July
2000 (decision)
#DATE 14:07:2000
Appearances
Mr M De Rohan, then Mr D Simpson for the Complainant.
Mr M Evans for the Respondent.
Order
Complaint dismissed.
KATHLEEEN MCEVOY
1. INTRODUCTION
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.
2. LEGISLATION
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. SUBMISSIONS
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. FINDINGS
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.
5.1.1 Disability
* 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.
5.2.3 Discrimination
5.2.3.1 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.
5.2.3.2 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.
6. CONCLUSION
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
Kathleen McEvoy
Inquiry Commissioner