Rainsford v State of Victoria [2008] FCAFC 31 (11 March 2008)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 709 OF 2007

BETWEEN:	JAMES RAINSFORD Appellant
AND:	STATE OF VICTORIA First Respondent GSL CUSTODIAL SERVICES PTY LTD Second Respondent

JUDGES:	TAMBERLIN, NORTH AND MANSFIELD JJ
DATE OF ORDER:	11 MARCH 2008
WHERE MADE:	MELBOURNE

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 709 OF 2007

BETWEEN:	JAMES RAINSFORD Appellant
AND:	STATE OF VICTORIA First Respondent GSL CUSTODIAL SERVICES PTY LTD Second Respondent

JUDGES:	TAMBERLIN, NORTH AND MANSFIELD JJ
DATE:	11 MARCH 2008
PLACE:	MELBOURNE

1 Mr Rainsford, who at all relevant times has been a prisoner in Port Phillip Prison, made a complaint on 14 September 2001 to the Human Rights and Equal Opportunity Commission ("HREOC") that he had been the subject of discrimination on the ground of disability. The disability from which Mr Rainsford claimed he suffered arose from a prolapsed disc in his back, the care for which required Mr Rainsford to perform a series of back stretches and exercises. HREOC terminated the complaint and Mr Rainsford made an application to the Federal Magistrates Court. The matter was ultimately heard by Sundberg J of this Court. His Honour dismissed the application: Rainsford v Victoria [2007] FCA 1059; (2007) 96 ALD 90.

2 In broad terms, Mr Rainsford alleges that he was subjected to indirect disability discrimination in the provision of certain services and facilities relating to his prison accommodation and transportation. His application to the Federal Magistrates Court was made pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), which enables an affected person to make an application to that Court alleging unlawful discrimination by one or more respondents to a complaint which has been terminated by HREOC. The respondents in this case are the State of Victoria, which is responsible for the control and management of its prisons, and GSL Custodial Services Pty Ltd, which is responsible for the transport of prisoners.

3 Mr Rainsford claims that two actions undertaken by the respondents relating to his imprisonment give rise to his claim of indirect disability discrimination. The first action was his transportation from one prison to another or from prison to court on about 30 occasions between May 1999 and January 2001. Mr Rainsford says that these transport operations constituted the provision of a "facility" or "service" under s 24 of the Disability Discrimination Act 1992 (Cth) ("the Act") and that the respondents imposed and gave effect to a requirement that he should be transported without access to measures which would exacerbate his back injury. Examples of such measures which, it is said, would provide the necessary protection include providing a means by which to exercise in the vehicle, periodically stopping the vehicle to allow him to get out of the vehicle, and/or providing access to a bed in the vehicle to cater for his back injury. Mr Rainsford says that compliance with the condition or requirement of transportation without access to such facilities to protect his back constitutes indirect disability discrimination.

4 Mr Rainsford also contends that his confinement for nine days in September 2001 in a particular type of cell in the Spine area of the Charlotte Management Unit ("the Spine area cell") at Port Phillip Prison constituted indirect disability discrimination. The Spine area cell provided solitary confinement for prisoners who were regarded as management or security risks. Mr Rainsford submitted that his incarceration for those nine days was a "service" or "facility", namely accommodation, which obliged him to comply with a requirement that he be confined in a cell which did not have exercise amenities (such as a hanging point from which he could engage in chin-ups and other exercises) to protect his back from pain and reduce the chance of aggravation.

5 Section 24 of the Act makes it unlawful for a person who provides services, or makes facilities available, to discriminate against another person on the ground of that other person’s disability. Discrimination under the provision may arise through the refusal to provide the services or make available the facilities, or through the terms and conditions on which, or the manner in which, the services are provided or the facilities made available. The expression "services" in s 4 of the Act includes "services relating to transport or travel". Section 4 also defines "accommodation" to include "residential or business accommodation", which is to be taken as a wide and inclusive definition: see Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at 121-122 (per McHugh and Kirby JJ); Commonwealth v Humphries (1998) 86 FCR 324 at 333-334.

6 Section 6 of the Act defines indirect disability discrimination. It provides that a person discriminates against another person on the ground of disability if he or she requires that other person to comply with a "requirement or condition" with which a substantially higher proportion of persons without the disability do or are able to comply; which is not reasonable in the circumstances of the case; and with which the aggrieved person does not or is not able to comply.

7 The primary Judge found at [79]-[80] that there was no breach of the Act because the provision of prison transport and cell accommodation was not a "service" or "facility" under s 24 of the Act. Although this conclusion was sufficient to dismiss Mr Rainsford’s claim, his Honour went on to consider issues arising in relation to ss 6(a), (b) and (c) of the Act, namely, whether Mr Rainsford was unable to comply with a "requirement or condition"; whether any such requirement or condition was "reasonable"; and whether a substantially higher proportion of persons without Mr Rainsford’s disability were able to comply with any such requirement or condition.

8 His Honour held at [87] and [90] that, in relation to both Mr Rainsford’s transport to and from prison and his accommodation for nine days in the Spine area cell, no requirements or conditions with which Mr Rainsford was not able to comply were imposed by the respondents, thereby failing to bring the respondents’ conduct within the definition of indirect disability discrimination provided in s 6 of the Act. In addition, his Honour considered at [96]-[97] that, if there was a condition or requirement imposed, it was reasonable in the circumstances, having regard to the risk of self-harm to those prisoners travelling in prison transportation vehicles or being detained in the Spine area cell. Finally, his Honour found at [102], pursuant to the Full Court’s reasoning in Hurst v Queensland [2006] FCAFC 100; (2006) 151 FCR 562 at 583, that the minor inconvenience and pain suffered by Mr Rainsford in his transportation and accommodation meant that there was no serious or significant disadvantage which might give rise to a breach of s 6(c) of the Act.

9 In this case it is not necessary to consider whether his Honour erred in his interpretation of the expressions "service" or "facility". This is because, if, as we think, his Honour’s conclusions on the other aspects of the claim are correct, this question does not arise. We observe that, although the meaning of "service" is not simple to resolve, and the matter was not argued in depth, we see some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility. However, once one assumes that a service or facility is being provided, the question which arises for determination is whether a "requirement or condition" was imposed which constituted indirect discrimination on the ground of disability because of the terms or conditions on which, or the manner in which, the transportation and accommodation were provided to Mr Rainsford.

10 The primary Judge made several findings in relation to the transport arrangements relevant to Mr Rainsford’s imprisonment. In particular, his Honour accepted that a list of prisoners scheduled to leave the prison was provided to healthcare authorities and medical practitioners to determine whether a prisoner was medically "cleared" for transport, whether the transport would interfere with medical appointments and also whether appropriate medical care could be provided at the prison of destination. His Honour also found that there were alternative transport arrangements available to those prisoners who demonstrated a need for them, and that in order for prisoners to avail themselves of these alternative arrangements it was necessary for them to acquire medical certificates.

11 Specifically in relation to Mr Rainsford’s ability to travel and his ability to request a medical certificate, his Honour found at [43]-[45] and [49] that:

• Mr Rainsford was aware that he would have to obtain a medical certificate in order to be provided with alternative transport arrangements;

• Mr Rainsford had asked for a medical certificate concerning the manner of transport and the medical staff had refused it for the reason that his condition did not justify it;

• a medical officer would review a prisoner’s medical file prior to his or her transport to ensure that he or she was fit for travel;

• if there had been a record on Mr Rainsford’s file to the effect that he should be transported in a particular way, that would have been apparent to the medical officers and would have been brought to the attention of the prison authorities; and

• although Mr Rainsford suffered some minor pain as a result of the manner in which he was transported, this was not sufficient to demonstrate that any deterioration of Mr Rainsford’s back injury occurred as a result of his treatment during transport.

12 One of his Honour’s findings was the subject of particular attention by counsel for Mr Rainsford. His Honour found at [43] that "I cannot accept that prison medical staff would be so remiss in their duty as to refuse to put such a request [for a medical certificate] in writing if they thought Mr Rainsford’s medical condition justified it." Counsel for Mr Rainsford submitted that there was no evidentiary basis from which his Honour could draw such an inference, and therefore his Honour’s reasons disclose an error of law. In our view, it was open to his Honour to draw this inference on the material to which his Honour referred. Simply because an alternative inference might have been available does not demonstrate either error of fact or law with respect to it.

13 In light of these findings, we agree with his Honour’s conclusions at [85] that the proper identification of the "service" (if it exists) was "prison transport generally", and that the relevant requirement or condition which attaches to the provision of that service was that any prisoner, who for medical reasons was unfit to be taken in regular transportation, must first obtain a medical certificate stating that alternative arrangements should be made. The consequence of this is that, because of the availability of alternative transport arrangements, there was no "requirement or condition" that a prisoner must accept transport which did not cater for his or her disability. At all times the prisoner could obtain a medical certificate where appropriate, and the evidence before the primary Judge showed that there was a system in place for the issuance of such a certificate. Since there was no "requirement or condition" of the kind asserted by Mr Rainsford to which the provision of the service of transportation was subject, the existence of indirect disability discrimination is excluded by definition (see s 6 of the Act) and consequently there can be no unlawful discrimination committed by the respondents in breach of s 24 of the Act.

14 In addition, having regard to the material before the primary Judge and his Honour’s findings, we are of the view that requiring an injured prisoner to obtain a medical certificate if wishing to use alternative transport was not unreasonable in the circumstances. Accordingly, even if this was a "requirement or condition" for the purposes of s 6 of the Act, we consider that it is not a requirement of a character giving rise to indirect disability discrimination because it fails to meet the standard set out in s 6(b).

15 In determining what is a reasonable requirement or condition for the purposes of s 6 of the Act, the Court must engage in a balancing exercise, weighing the inconvenience or harm of the requirement to the aggrieved person against countervailing reasons justifying the imposition of that requirement.

16 In this case, as noted above at [3], Mr Rainsford claims that he should have had stretching facilities in the vehicle which transported him to and from prison, that the vehicle should have stopped periodically to allow him to exercise outside, and/or that the vehicle should have a contained a bed. This, it is said, would have made the requirement that he travel in the vehicle reasonable, and reduced the possibility of exacerbating his back injury.

17 To be weighed against Mr Rainsford’s evidence is evidence adduced before the primary Judge, and not challenged by Mr Rainsford, that serious security risks arise if vehicles transporting prisoners from prison to court are stopped to allow those prisoners to get out and exercise. Similar security risks, as well as additional risks of self-harm to prisoners, arise if the vehicles are stopped so that prisoners can make use of exercise equipment in the vehicle, particularly where that equipment involves some sort of hanging point (for the purpose of chin-ups, for instance). Furthermore, allowing prisoners to stand up in a moving vehicle to use exercise equipment introduces an extra risk of physical injury to the prisoner in the case of a sudden turn or brake by the vehicle. These objections to the measures suggested on behalf of Mr Rainsford are both rational and soundly based on commonsense. In our view, they provided a sufficient basis for his Honour to determine that the requirement that prisoners travel in an ordinary vehicle unless they first obtain a medical certificate was "reasonable".

18 For the above reasons, we agree with the primary Judge that there has not been indirect disability discrimination in relation to the transport of Mr Rainsford to and from prison. Accordingly, the appeal, in so far as it relates to the transportation of Mr Rainsford, must be dismissed.

19 The findings of the primary Judge at [46]-[49] in relation to Mr Rainsford’s detention in the Spine area cell were as follows:

• while Mr Rainsford was in the Spine area cell he was able to perform a number of exercises, but not as many as he wished;

• Mr Rainsford did not receive a medical certificate stating that his accommodation in the Spine area cell needed to be varied;

• Mr Rainsford was informed by a medical practitioner that medical staff could not control in which cell he was placed on medical grounds;

• there was no evidence that the respondents were aware that Mr Rainsford had been told by medical staff they could not determine his accommodation;

• there was no evidence that the respondents would not have considered a recommendation from medical staff to vary his cell placement;

• Mr Rainsford had not established that any deterioration his back injury was caused by his placement in the Spine area cell;

• Mr Rainsford had not shown that the lack of additional exercise opportunities in the Spine area cell resulted in any pain or suffering beyond mere inconvenience.

20 In relation to the "requirement or condition" concerning Mr Rainsford’s detention in the Spine area cell, the primary Judge stated at [89]:

It is clear that his Honour regarded the requirement concerning Mr Rainsford’s detention as being not only that the conditions of a prisoner’s incarceration in a particular cell take into account, inter alia, his or her security rating, level of privileges and medical condition, but also that if Mr Rainsford is medically unfit for his cell he is required to take steps to demonstrate that unfitness to prison authorities. In our view, his Honour correctly identified the "requirement or condition" to which the provision of the service of accommodation to prisoners is subject. The question therefore is whether this requirement or condition was of a character giving rise to indirect disability discrimination under s 6 of the Act.

21 The primary Judge was correct to conclude that no unlawful indirect disability discrimination exists in the provision of accommodation to prisoners by the condition identified above, and that no evidentiary basis supports such a claim. In particular, there is no evidence that Mr Rainsford ever sought a medical certificate in respect of his detention in the Spine area cell, nor was there evidence as to what would have been done if a medical certificate had been granted and presented to the prison authorities. On this last point, his Honour at [89] drew the inference, which is reasonable in our view, that if a medical officer had stated that Mr Rainsford should not be placed in a cell with minimal access to exercise facilities, the prison authorities would have considered that advice and may have acted on it. This is a proper inference and is in accordance with commonsense, particularly where there was no evidence to the contrary.

22 We are also of the view that the requirement or condition identified by his Honour at [89] is reasonable in the circumstances. The evidence demonstrated that the provision of gym and exercise amenities to prisoners incarcerated in the Spine area cell would contradict the purpose of solitary confinement. In addition, the evidence demonstrated that Mr Rainsford was still able to perform other relevant exercises in the Spine area cell, and the primary Judge concluded that Mr Rainsford had failed to show his need for further exercise. The reasonableness of the imposition of the requirement is also supported by the fact that there is no evidence that Mr Rainsford had sought a medical certificate calling for a change of cell or treatment different to that afforded to him under the normal regime.

23 Accordingly, his Honour was correct to conclude that Mr Rainsford was not required to comply with a requirement or condition in respect of the Spine area cell and consequently that no unlawful discrimination had taken place in breach of s 24 of the Act.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, North and Mansfield.

Counsel for the Appellant:	Mr J. Gray

Solicitor for the Appellant:	Just Law

Counsel for the First Respondent:	Mr R. Niall and Mr G. Hill

Solicitor for the First Respondent:	Corrections Victoria

Counsel for the Second Respondent:	Ms C. Harris

Solicitor for the Second Respondent:	Allens Arthur Robinson

Date of Hearing:	13 February 2008

Date of Judgment:	11 March 2008

Federal Court of Australia - Full Court

Rainsford v State of Victoria [2008] FCAFC 31 (11 March 2008)