THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
WILLIAM CARTER Q.C.
Number of pages - 12
HEARING DATE: 4-5 May 1999
DATE OF DECISION: 24 August 1999
P. Sweetapple of Counsel, instructed by A. McFadzean, Blind Citizens Australia, for the Complainant
G. O'Grady of Counsel, instructed by M. Curcuruto, Spranklin Solicitors, for the Respondent
WILLIAM CARTER Q.C.
1. THE COMPLAINT
The complainant was born on 15 May 1942 and has for several years been interested in competitive road cycling. In 1992 he joined the Sun Pacific Cycling Club which is an affiliate of the Queensland Cyclists Association Incorporated, (the respondent), an incorporated association pursuant to the Associations Incorporation Regulation 1982 (Qld).
This incorporated association is the regulatory and/or licensing body for competitive cycling in Queensland. In order that a person may compete in cycling events authorised by the Association or any of its affiliated clubs the person must hold a licence issued by the Association.
The complainant was licensed to compete in the veteran class. In June 1996 when the Association revoked his licence he was aged 54 years. It is common ground that his licence was revoked by the Association on the ground that his impaired vision was such that to allow him to compete competitively in road cycling constituted a danger to himself and to others. The events which gave rise to the revocation of his licence are dealt with below. It is also common ground that his impaired vision is the result of a condition known as optic atrophy which is probably congenital. It is agreed that this condition is a "disability" within the meaning of the Disability Discrimination Act 1992 (Cth) ("the Act").
The complainant complains that in revoking his licence to compete competitively in road cycling, the respondent unlawfully discriminated against him on the ground of his disability.
1.1 The statutory provisions
In the submissions made by the respective parties the following are seen to be relevant to the facts of this case.
Sections 27(1), (2) and (3) provide:
(1) It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is not a member of the club or association on the ground of the person's disability or a disability of any of that person's associates:
(a) by refusing or failing to accept the person's application for membership; or
(b) in the terms or conditions on which the club or association is prepared to admit the person to membership.
(2) It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is a member of the club or association on the ground of the member's disability or a disability of any of the member's associates:
(a) in the terms or conditions of membership that are afforded to the member; or
(b) by refusing or failing to accept the member's application for a particular class or type of membership; or
(c) by denying the member access, or limiting the member's access to any benefit provided by the club or association; or
(d) by depriving the member of membership or varying the terms of membership; or
(e) by subjecting the member to any other detriment.
(3) Paragraph (2)(c) does not render unlawful discrimination where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the club or incorporated association.
Section 28(1) and 28(3)(a) provide:
(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 the other person's associates by excluding that other person from a sporting activity.
(3) Subsection (1) does not render unlawful discrimination against a person:
(a) if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity; or
The complainant submitted that both the provisions of s.27 and of s.28 are relevant to its case. It is submitted for the respondent that the complaint falls to be determined by reference to s.28 only, but that if a finding of unlawful discrimination were to be supported by s.27 (2), s.27 (3) operates to exclude such a finding because of the "unjustifiable hardship" provision.
Section 27(2) of the Act has a broad application to discriminatory acts on the part of a club or incorporated association towards a member of such a body on the ground of the member's disability. The sub-section however is concerned only with discrimination in the course of the relationship between a club or incorporated association on the one hand and its members on the other. The relationship between the complainant in this case and the respondent is of a different kind from that envisaged by s.27. At the relevant time the complainant was a member of the Sun Pacific Cycling Club but the licensing or regulatory body which admittedly discriminated against the complainant was the respondent with which the club was affiliated. There is no evidence that the complainant was a member of the respondent body. The decision to revoke the complainant's licence to race competitively (the alleged discriminatory act) was that of the respondent not that of the club of which he was a member. The club was in relevant respects subject to the control of the respondent and was no doubt required to give effect to its decisions but the challenged revocation of licence was the act of the respondent and not that of the club.
I am of the view that s.27 is not applicable to the circumstances of this case. The case rests essentially on s.28.
Section 28 deals specifically with discrimination on the ground of disability in sport. By sub-section (1) it is unlawful to discriminate against another on the ground of that other's disability by excluding that person from a sporting activity. That is precisely what the respondent did in this case by revoking the complainant's licence to compete. The respondent rightly concedes that its decision was discriminatory, but submits that it is saved from unlawfulness by reason of s.28 (3)(a).
The subject matter of this complaint is therefore properly comprehended by s.28.
1.2 Section 28
The question for determination therefore is whether, having regard to his impaired vision, the complainant is reasonably capable of preforming those actions which are reasonably required of one who wishes to engage competitively in road cycling. That is a question of fact. The respondent asserts that he is not and accordingly that it properly revoked his licence. The onus of proof of the material facts relied upon to support the revocation lies with the respondent.
In determining the core issue there are two elements which need to be addressed: firstly, what are the actions, skills or competencies which are reasonably required of persons engaged in competitive road cycling? And, secondly, is the complainant, having regard to his impaired vision, reasonably capable of performing as a competitive road cyclist?
Counsel gave considerable attention to The Secretary of the Department of Foreign Affairs and Trade -v- Styles 88 ALR 621 at 634 where the "test of reasonableness" was defined for the purposes of that case. That test was adopted in Waters -v- Public Transport Commission 1991 173 CLR 349 at 395-6. It is worthy of note that both of these cases involved allegations of indirect discrimination where the reasonableness or otherwise of an imposed requirement or condition was an issue. The definition of those actions which are reasonably required in relation to competitive road cycling admittedly requires an objective assessment to be made. In making that assessment however one can properly have regard to the evidence of those who have experienced this form of competition in this particular sport. At the same time reliance upon common experience and common sense will assist a valid assessment. Competitive road cycling is a popular sport. Competition in the sport occurs at the highest level involving both males and females. It is not uncommon for a motorist to encounter a bunch of cyclists competing competitively on the same public road as that on which the motorist is driving. Common experience can therefore assist the assessment. Again the television coverage of such a sporting event at the Olympic or Commonwealth Games or on any other high profile sporting occasion can assist one in comprehending the range of actions or activities which are reasonably assessed as being part and parcel of competitive road cycling.
The evidence discloses that there are various classified forms of competition in road cycling requiring varying degrees of skill and attended with varying degrees of risk. The criterium race is usually conducted not on a road but on an enclosed circuit such as the carparking space of a major shopping centre. It is regarded as relatively dangerous given that the riders compete at speed, in close proximity to one another on a relatively tight circuit with bends and turns to be negotiated. A scratch road race is one in which the competitors commence the race in line or at the same time. It is a regular feature of such races that riders will ride in a pack again in close proximity to each other and at considerable speed which on declines can reach at least 60kms per hour. A handicap road race provides for the field of riders to depart the starting line at intervals but again it is possible that riders may bunch or pack at various stages in the race. A time trial involves each competitor in turn competing against the clock.
The element of risk or danger in competitive road cycling is obviously ever present. Again the very nature of the sport and the way in which road racing is conducted competitively confirms this. Furthermore it is not uncommon to witness, eg in the course of television coverage of a major race, a so-called "pile up" where one incident or the action of one or more riders can initiate a chain of events which following riders cannot avoid. Indeed in the course of the Inquiry a video of such an event in the course of the world-renowned event the Tour de France was shown. Road racing by cyclists occurs at relatively high speed with riders frequently and as a matter of habit riding in close proximity to each other. At times only centimetres separate the wheels of a leading and following cycle and the arms and body of the cyclists racing at speed besides each other in a group are again separated by only very short distances. It is clear that competing cyclists become extremely familiar with this process and indeed it is said to be of the essence of good competition that riders do compete at speed in circumstances where their cycles and their bodies are in close proximity with each other over considerable distances.
The actions reasonably required in competitive road cycling must therefore assume certain competencies and skills on the part of the cyclists. Adequate vision, alertness, the capacity to respond to and avoid risks in situations of danger which spontaneously occur, apart from the obvious need for fitness and stamina are reasonable requirements expected of those who engage in this particular sporting activity.
Because by its very nature this form of competitive sport brings persons into close proximity with each other at speed, the actions reasonably required in the sporting activity have to be such as to avoid the possibility of harm not only to the individual but also to the other competitors. In this respect "the actions reasonably required in relation to the sporting activity" (s.28 (3)(a)) bear close analogy to "the inherent requirements of the particular employment" which is dealt with in s.15 (4) of the Act. In Commonwealth of Australia -v- Human Rights and Equal Opportunity Commission and Anor 1998 3 FCA where the latter terminology was considered by the Federal Court it was held (per Mansfield J at page 34) that:
"there is no reason in logic or experience or from the wording of s.15 (4) of the DDA to exclude from consideration in appropriate circumstances considerations relevant to the safety of others."
So too when identifying "the actions reasonably required in relation to the sporting activity", (s.28 (3)(a)), one should not exclude from consideration matters relevant to the safety of others in that definition if the circumstances of the particular sporting activity require it. In competitive road cycling the actions reasonably required of the participant should reflect and acknowledge the general duty of care which one cyclist owes to his fellow competitor, altogether and apart from what the rules of the particular sport impose on those engaged in it. The existence of that duty will assist the definition of those actions that can be said to be "reasonably" required in that particular sporting activity.
1.3 Facts relevant to the complainant
The complainant's impaired vision by reason of congenital optic atrophy is such as to render him "legally blind." This phrase by itself is meaningless in this context. The complainant is in receipt of a pension by reason of his "blindness." His vision is impaired to such a degree that he is prevented from obtaining a driver licence. That brief recitation of the facts however obscures the reality. The complainant from when he was sixteen competed in cycle racing as a member of a cycle club in northern New South Wales for about 4 to 5 years. He asserts that his vision then was about the same as it is now. In 1992 he took up road cycling again. He has competed in many road races over considerable distances. His training routine is said to involve about 400km of cycling each week. He competed at the Queensland Masters Competition in 1992-3 and the World Masters Games in which 420 riders competed in the road race. He said that he finished 18th of the 50 riders who completed the course. His experience in road cycling is remarkable given the known state of his impaired vision. There was a considerable body of evidence given in the course of the Inquiry from fellow cyclists and competitors, one group of which said the complainant was a competent and safe cyclist and that in spite of his disability there was no risk associated in riding with him in road races. The other group spoke of their concerns and related cycling incidents where his impaired vision apparently had put at risk or at least had raised concerns for the well being of other cyclists.
Because of the manner in which road racing occurs there is a well-entrenched practice that the leading cyclist in the group is expected to avoid obstacles because following riders will only change course in response to a change of course by the leader. It was said that the complainant's impaired vision ahead constituted "a grave potential danger" because of his limited ability to avoid obstacles or to ride always on the paved surface of the road. Some examples were cited.
I am satisfied that some of the complainant's fellow competitors were unaware of his impaired vision and so regarded him as competent but that others had a different view and harboured concerns on account of his impaired vision.
The issue seems to have come to a head with an incident which occurred on 19 May 1996 in the course of a criterium event which was being conducted at the Sunshine Plaza car park at Maroochydore. The course is diagrammatically illustrated in exhibit 3. In the course of the race, when negotiating a sharp and difficult corner, the complainant's cycle collided with the pedal of the cycle being ridden by one Cleaver, another veteran class rider. The collision broke the pedal on Cleaver's cycle and the complainant fell heavily.
In relation to this incident I accept the evidence given to the Commission by Dale John Lanini. Lanini observed the incident and appeared to give a fair and objective version of it. He himself is a teacher of the physically impaired and he is employed by Queensland Education. He, at the time, was unaware of the complainant's impaired vision. He observed the complainant travelling to the point of the collision at what he observed to be an excessive speed having regard to the fact that the bunch ahead had slowed so as to safely negotiate a corner. According to this eyewitness, the complainant appeared to take no evasive action, either by braking or swerving, to avoid the imminent collision. He there upon collided heavily with Cleaver's cycle.
I am satisfied that the incident and the consequent damage to Cleaver's cycle occurred in the manner described by Lanini and that it occurred because of the complainant's impaired vision. It was this incident which lead to the respondent's decision to revoke the complainant's licence.
1.4 The complainant's impaired vision and the expert evidence
In the course of the proceedings which led to the respondent's decision to revoke the licence, the complainant was asked to provide the respondent with specialist medical evidence to support the complainant's capacity to engage safely in competitive road cycling.
A brief report from Dr Perrin, an ophthalmic surgeon, (which is part of exhibit 1) noted the complainant's impaired vision and stated that "although Mr Wells' vision is decreased he has sufficient vision particularly peripheral vision which should enable him to ride a bicycle safely." This somewhat guarded opinion was regarded as equivocal and unsatisfactory. The concern on the part of the respondent was that to be able to safely ride competitively in road racing cycling events was not synonymous with an ability "to ride a bicycle safely." Subsequently the complainant saw Professor Coroneo, the Chair of the Department of Ophthalmology at the University of New South Wales, and Ms Jolly, an Orthoptist who was a senior lecturer in the Faculty of Health Sciences at the School of Applied Vision Sciences at Sydney University. Prior to the commencement of the hearing the complainant also undertook testing by Mr Andrew Angeli which formed the basis for reports given by Mr Leo Hartley and Mr Neil Murray, both of whom are highly regarded in Optometry.
Mr Hartley and Mr Murray are experienced in competitive road cycling and Mr Murray, among his other consultancies, is the Director of the Eye Unit for the Sydney Olympics Medical Centre. In a recent case involving a competitor who was seeking selection in the Paralympics at Atlanta in 1996, Mr Murray was required to provide an opinion on a visually impaired cyclist who sought to compete in open road racing. He concluded in that case that the cyclist could compete safely.
It is common ground that the complainant's visual acuity is 2/60. That means that the complainant can just distinguish the largest letter at the top of the standard eye-testing chart at 2 metres. A person with normal vision can just distinguish the same letter at 60 metres. Mr Hartley notes that the complainant's vision is three times worse than the statutory definition of legal blindness and fifteen times worse than the minimum driving standard.
Not only is the complainant's central vision severely impaired so too is his peripheral field of vision significantly reduced. To what extent was a matter of contention between the various expert witnesses who it seems used different testing procedures to measure the loss of peripheral vision. I will refer to this contest later.
The impaired vision of the complainant was readily observable in the course of the hearing. He was, for example, unable to correctly identify certain objects in the hearing room at a distance of between 3-6 metres. When the video of the Tour de France was shown he was unable to discern any detail on the television screen from a distance of about 5-7 metres. Ms Jolly's testing indicated an inability to read road signs and the complainant could only see pedestrians at about 10 metres but could not discern any significant detail.
The test done by Ms Jolly to test peripheral vision and commented upon by Professor Coroneo is known at the Goldman Test (the "Goldman"). The test for the same purpose used by Mr Angeli and reported on by Messrs Hartley and Murray is the Humphrey Visual Field Analyser (the "Humphrey"). The significant feature of the Goldman is the use of a very bright target light at the periphery whereas in the Humphrey the target is more subtle.
I am satisfied that the Humphrey gives a far more valid quantitative assessment as well as a more valid qualitative assessment for determining loss of peripheral vision. Whilst the Goldman is prescribed in the Austroad Test for driving licence purposes it is now used very infrequently, if at all, in modern optometry.
The evidence in relation to the complainant's peripheral vision is complex and quite detailed and all of the expert witnesses who gave evidence are well qualified and experienced.
In the result I find myself persuaded more by the evidence of Messrs Hartley and Murray based as it is on the testing (by use of the Humphrey) done by Mr Angeli. It is noteworthy that both Mr Hartley and Mr Murray have the advantage of significant personal experience in competitive road cycling. Their practical experience in the sport when added to their undoubted professional expertise gives to their evidence in this context a special quality. In Mr Hartley's opinion the complainant's reduced visual acuity speaks for itself. In addition the complainant has severe central visual field loss to the extent of at least 30 degrees and although he may have some visual field between 30 degrees and 120 degrees this is likely to be of very poor quality. In his view the complainant's capacity to interpret and to respond to what is occurring around him in a dynamic situation such as a road race is significantly reduced. Mr Hartley regards the complainant's vision as inadequate to ride competitively in road racing without putting himself and others at risk. His
evidence supports the decision of the respondent to revoke the complainant's licence. The evidence of Mr Murray is to the same effect.
Mr Murray likewise has both the practical experience of cycling in competitive road racing and a well regarded professional expertise. In his view the complainant cannot be a consistently safe rider in competitive road racing.
It is difficult to resolve the apparent paradox which the acceptable evidence of Messrs Hartley and Murray presents alongside the past cycling experience of the complainant. It is not unlikely that the complainant may have developed other skills which allow him to compensate for his severely impaired vision. At the same time it is clear that the incident of 19 May 1996 in the course of the criterium event at the Sunshine Shopping Village (there were others referred to in the evidence) revealed an inability in the complainant to compete safely.
2. CONCLUSION AND DETERMINATION
The question remains whether the complainant is reasonably capable of performing the actions reasonably required in relation to competitive road cycling. The Inquiry has persuaded me that he is not because on account of his impaired vision there is a serious risk that, given the exigencies of competitive road cycling, there is a real risk of harm not only to the complainant himself but also to others. In my opinion the complainant is not reasonably capable of performing the actions reasonably required in relation to the sport of competitive road racing.
Accordingly I find that the complaint has not been substantiated.