State Transit Authority v Sloey and Anor [1999] NSWSC 47 (12 March 1999)

Last Updated: 15 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: State Transit Authority v Sloey & Anor [1999] NSWSC 47

CURRENT JURISDICTION: Administrative Law

FILE NUMBER(S): 30073/98

HEARING DATE{S): 04/02/99, 23/02/99.

JUDGMENT DATE: 12/03/1999

PARTIES:

State Transit Authority

(Plaintiff)

Peter Eric Sloey

(First Defendant)

Equal Opportunities Tribunal

(Second Defendant)

JUDGMENT OF: Barr J

LOWER COURT JURISDICTION: Equal Opportunities Tribunal

LOWER COURT FILE NUMBER(S): 153/96

LOWER COURT JUDICIAL OFFICER: Tribunal sitting as Mr G Innes (Judicial Member), Ms R Cox (Member), Mr D McNeill (Member)

COUNSEL:

Ms A Katzmann SC/Mr P Newall

(Plaintiff)

Mr T Lynch

(First Defendant)

SOLICITORS:

Sparke Helmore

(Plaintiff)

Writer Ryan Boesen

(First Defendant)

I V Knight

(Second Defendant)

CATCHWORDS:

Discrimination on ground of disability - characteristic appertaining to persons who have a disability - whether it is a characteristic of persons suffering a certain disability that they often undergo a certain medical procedure - meaning of "characteristic"

Discrimination on ground of disability - characteristic appertaining to persons who have a disability - whether Equal Opportunity Tribunal might conclude without evidence that it is a characteristic of persons suffering from blockage of a coronary artery that they often undergo coronary artery graft surgery

Discrimination on ground of disability - whether employer who certifies employees unfit by category rather than by reference to the personal circumstances of individuals has a statutory defence of necessity.

ACTS CITED:

Anti-Discrimination Act 1977 ss 49A, 49B, 49D, 54

Occupational Health and Safety Act 1983 ss 15, 16

DECISION:

Summons dismissed with costs.

JUDGMENT:

THE SUPREME COURT OF

NEW SOUTH WALES

COMMON LAW DIVISION

GRAHAM BARR J

Friday, 12 March 1999

30073/98 - State Transit Authority v Peter Eric Sloey & Anor

HEADNOTE

An employee bus driver was diagnosed as suffering from blockage of a coronary artery and underwent coronary artery graft surgery. Although he was symptom-free the employer did not have him medically examined but certified him unfit to return to his former job. It offered him, and he accepted, a lesser job at lower pay. The employer justified its action in purported reliance on the terms of a set of guidelines or standards issued by the National Road Transport Commission and the Federal Office of Road Safety, asserting that all employees who had undergone coronary artery graft surgery presented an increased risk of symptoms for a further twelve months after surgery. The employer was obliged under ss 15, 16 Occupational Health and Safety Act to ensure the health, safety and welfare of its employees, to maintain safe plant and systems of work and working environment and to ensure that persons not in the employer's employment were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they were at the employer's place of work. The employer asserted that in order to meet its obligation under the Occupational Health and Safety Act it was necessary for it to apply the guidelines or standards, treating the employee as a member of a category of persons presenting an increased risk of symptoms and without reference to his individual medical condition, and certify him unfit to drive a bus.

The Equal Opportunity Tribunal found that the employer had discriminated against the employee in his work on the ground of disability in that it discriminated against him on the ground of a characteristic that appertains generally to persons who have that disability. The Tribunal concluded that it was a characteristic that appertained generally to persons suffering from blockage of a coronary artery that they often undergo coronary artery graft surgery. The Tribunal held that the employer was not entitled to certify the driver unfit to drive merely because he fell into a category of persons who presented an increased risk of symptoms, but was obliged to consider his individual circumstances. Accordingly the Tribunal found for the employee and made an award of damages.

The employer appealed to the Supreme Court of New South Wales. It argued first that the Tribunal was wrong in concluding that it may be a characteristic which appertains generally to persons suffering from blockage of a coronary artery that they often undergo coronary artery graft surgery and, even if it may be, that the Tribunal was not entitled without evidence to conclude that it is a characteristic of such persons that they often undergo such surgery. Secondly, it submitted that the Tribunal erred in concluding that there was no defence of necessity.

It was held that on the ordinary meaning of the word "characteristic" the Tribunal was entitled to hold that it may be a characteristic of persons suffering from such a disability that they often undergo such surgery, and that the Tribunal was entitled to find, without evidence, that it is a characteristic of persons suffering from such a disability that they often undergo such surgery, that being a matter of common knowledge.

It was further held that the Tribunal was correct in concluding that it was not necessary in order for the employer to meet its obligations under the Occupational Health and Safety Act to certify the employee unfit to drive a bus by treating him merely as a member of a category of persons who presented an increased risk of symptoms without having him medically examined and considering his individual state of health.

28

THE SUPREME COURT OF

NEW SOUTH WALES

COMMON LAW DIVISION

GRAHAM BARR J

Friday, 12 March 1999

30073/98 - State Transit Authority v Peter Eric Sloey & Anor

REASONS FOR JUDGMENT

1 HIS HONOUR: By its summons the plaintiff, State Transit Authority ("STA"), seeks orders setting aside and otherwise relating to a decision of the second defendant, the Equal Opportunity Tribunal of New South Wales ("the Tribunal") in proceedings between the first defendant, Peter Eric Sloey, and STA. The Tribunal submits to the orders of the Court other than any order for costs.

2 Mr Sloey was a bus driver employed by STA. Late in 1995 he was diagnosed as suffering from angina and certified unfit for work. In January 1996 blockages of a coronary artery were diagnosed. There was no infarction. On 29 January 1996 Dr Brady, a surgeon, carried out coronary artery graft surgery. Mr Sloey had kept STA informed about what was happening, and on 22 February 1996 saw Dr Garvan as required by STA. Dr Garvan is a consultant occupational physician. He did not examine Mr Sloey but told him that he would not be allowed to drive a bus until 12 months after the operation. Dr Garvan was relying on the contents of a document dated November 1994 entitled "Medical Examinations of Commercial Vehicle Drivers", prepared for and apparently issued by the National Road Transport Commission and the Federal Office of Road Safety. At the subsequent hearing this document was variously referred to by counsel as "guidelines" and "standards". I shall call it "the standards".

3 The standards is a lengthy document and it will be sufficient to extract a few passages from it. The foreword includes these passages -

... health standards for commercial vehicle drivers are especially important because the community expects drivers of public passenger vehicles ... to meet higher standards that the general driving population. At the same time, any regime wherein a person's right to drive may be denied or restricted on health or any other grounds needs sensitive treatment. Decisions must be based on the best available evidence.

...

The Standards have been prepared to assist medical practitioners throughout the country in providing expert advice about a driver's medical eligibility for a Commercial Driver's Licence.

Given the rapid advances in medical knowledge and technology, the Standards will be reviewed in the future to ensure that they incorporate any relevant medical advances.

4 These passages are taken from the body of the document. Under the heading Purpose of Standards appears the following -

These standards are intended to assist medical practitioners who are conducting medical examinations of commercial drivers on behalf of driver licensing authorities. The licensing authorities require clear, non-technical medical advice regard a person's fitness to drive commercial vehicles so as to ensure public safety. The final decision on certification rests with licensing authorities.

5 Under the heading Legal Disclaimer appears the following -

Whilst all reasonable care has been taken in compiling the standards and criteria, the authors and the Australasian Faculty of Occupational Medicine accept no responsibility for any consequences arising from their application.

In addition, it is expected that doctors will keep themselves appraised of major changes in medical knowledge which may influence their assessment of drivers.

6 Under the heading Evaluation and Review is stated -

It is proposed to periodically revise these standards and procedures.

7 The greater part of the document goes under the general heading Medical Standards and contains these passages -

This part provides information on medical conditions which may affect driving. The criteria for assessment are set down, i.e. whether applicants meet the standards for a commercial vehicle driver's licence; whether a conditional licence would be appropriate; or whether further testing and monitoring is required.

...

The important principle is that the evaluation of individual medical fitness and safety to drive depends on comprehensive medical assessment of overall health and informed medical judgment about the impact of single or multiple conditions on whole person function.

8 This appears under the sub-heading Cardiovascular Conditions -

(c) After confirmed myocardial infarction, coronary artery bypass grafting or coronary angioplasty

The criteria are NOT met:

* if the person has had confirmed myocardial infarction, coronary artery bypass grafting or coronary angioplasty. Efforts should be directed at retraining and redeployment of such drivers rather than adopting a `wait and see' policy which depends on the individual `passing' a future medical test.

The person may be reviewed if no symptoms of coronary artery disease have occurred for 12 months.

The criteria are NOT met:

* in most circumstances where coronary artery disease has occurred.

A conditional licence may be considered by an approved specialist:

* if a person has been asymptomatic for a minimum of 12 months, has good control of risk factors and does not require medication for control of symptoms. The results of both non-invasive tests and coronary angiography will be required for review by an approved specialist. The specialist may suggest re-licensing subject to period assessment (both non-invasive and invasive).

9 Annexed to the document is a model health assessment form, containing a section for a medical practitioner to complete after examining the driver the subject of any inquiry.

10 On 22 February 1996 Dr Garvan wrote to Dr Brady asking for written confirmation that Dr Brady had done the surgical operation. Dr Brady replied in a letter dated 18 March 1996 and said -

Thank you for your letter regarding Mr Peter Slowey (sic). This gentleman underwent coronary bypass surgery at North Shore Hospital on the 29th January 1996. At operation three grafts were performed. Mr Slowey's postoperative course was uncomplicated and at the time of discharge he was being treated for pre-existing hypertension with Metoprolol and Renitec. He had been taking this medication for quite some time, the indication for this gentleman's surgery was Class 3 angina, ventricular function was within normal limits.

On review today Mr Slowey is in excellent condition following his surgery, blood pressure was 150/80. His pulse rate is 60 consistent with beta blockade. His wounds have healed satisfactorily and his chest is clear. He has no persistent symptoms of ischaemia and he has a good exercise tolerance.

With regard to his employment I could see no reason why this gentleman would not be ready to return to full time work after three months recuperation. I have asked Mr Slowey to make an appointment to return to see his Cardiologist, Dr Wilkes, for review also.

11 Having received the confirmation, Dr Garvan did not examine Mr Sloey but applied the statement in the standards that the criteria were not met because the first defendant had had coronary artery bypass grafting within the last 12 months. He certified him unfit to drive a bus.

12 On 25 March 1996 Dr Wilkes also certified him fit to return to work as a bus driver on 1 May 1996.

13 Mr Sloey gave those certificates to STA's controlling officer at his work depot. He also informed the Department of Transport and the Roads and Traffic Authority about his operation and his certification of fitness to return to work. Neither of those bodies took any action to restrict the terms of his driving licence.

14 Mr Sloey returned to work on 1 May 1996 and on the following day saw Dr Garvan a second time as required by STA. As on the first occasion, Dr Garvan had with him the standards. He told Mr Sloey that according to its contents he would be unable to work as a driver for 12 months. He did not examine him.

15 Mr Sloey found himself obliged to accept the offer of a light duty position as a bus cleaner at a lower rate of pay, and that is the work that he did until STA permitted him to drive a bus again in January 1997. He complained to the Anti-Discrimination Board of New South Wales and the President of the Board eventually referred the complaint to the Tribunal under the provisions of s 94 of the Anti-Discrimination Act 1977 ("the Act").

16 In order to succeed in his action Mr Sloey had to show that STA had unlawfully discriminated against him in his work on the ground of disability. The relevant sections of the Act are as follows -

49D Discrimination against ... employees

...

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:

(a) in the terms or conditions of employment which the employer affords the employee, or

...

(d) by subjecting the employee to any other detriment.

...

49B What constitutes discrimination on the ground of disability

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability ... the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability ...

...

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

...

4 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

...

"disability" means:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

...

49A Disability includes past, future and presumed disability

A reference in this Part to a person's disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

...

54 Acts done under statutory authority

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:

(a) any other Act, whether passed before or after this Act,

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,

...

17 The Tribunal heard evidence and argument on 2 December 1997 and reserved its decision. One of the three members of the Tribunal unfortunately died and there was a delay in the delivery of the judgment and reasons, which were given in writing on 18 June 1998. The Act contains provision for the decision of the Tribunal to be by majority, and no point is taken about those matters.

18 The Tribunal found that the first defendant had proved his case and made an award of damages.

19 By s 118 an appeal lies to this Court on a question of law. Subs (3) requires the Court to hear and determine the question of law arising on the appeal and either to remit the decision of the Court to the Tribunal's successor, the Administrative Decisions Tribunal, or make such other order in relation to the appeal as seems fit.

20 Before the Tribunal STA argued that Mr Sloey had no disability and that it had not discriminated against him by reference to persons appropriate for comparison. Those arguments were lost and may be taken no further. However, STA argued alternatively that if it had discriminated against Mr Sloey it had not done so on the ground of disability. Counsel put the case to the Tribunal in the following way -

What is pleaded to be a disability is single vessel coronary disease. Now whatever actions were taken about the complainant's employment were not taken on account of single vessel coronary disease. It ... will become clear from the evidence that the decision that the complainant could not drive a STA bus for 12 months after the graft surgery ... was ... based on the assessed propensity of the complainant to have a potentially disabling heart episode within 12 months of that surgery. It's the surgery that's the touchstone, that's quite clear when one looks at the standards ...

... the reason that the complainant was not permitted to drive a bus was that the standards say that he's not to drive a bus within 12 months of having the piece of surgery. The surgery isn't ... pleaded as a disability ... The linkage is between the surgery and the decision not to permit him to drive. That being so, the decision not to permit him to drive which is complained of as discriminatory didn't spring from what he's pleaded to be a disability ...

21 Counsel's reference to things pleaded or not pleaded was to Mr Sloey's Points of Claim filed in the Tribunal. Paragraphs 6, 28 and 29 of this document show how Mr Sloey pleaded his case. They are as follows -

6. On a date unknown to the Complainant the Respondent adopted as its policy guidelines contained in the document "Medical Examinations of Commercial Vehicle Drivers" prepared for the National Road Transport Commission and the Federal Office of Road Safety by the Australasian Faculty of Occupational Medicine dated November 1994 ("the guidelines").

28. By reason of the guidelines referred to in paragraph 6 of these Points of Claim, the Respondent discriminated against the Complainant on the basis of his disability within the meaning of sec 49B(1)(a) of the Act by treating him less than favourably than it would have treated a person without the disability in the same circumstances or in circumstances which were not materially different.

29. The discriminatory treatment referred to above and further particularised in the Statement of Complainant filed in these proceedings is unlawful under sec 49D(2)(d) of the Act in that the Respondent discriminated against the Complainant on the basis of his disability by subjecting him to a detriment, that is by refusing to all him to continue as a bus driver after he had been certified fit to resume his normal bus driving duties without carrying out a medical assessment of the Complainant and by applying the guidelines without any regard to the Complainant's condition and the reports of his treating medical practitioners.

22 In its Points of Defence, STA admitted paragraph 6 and denied paragraphs 28 and 29. The Points of Defence introduced no new fact or subject matter except that in the final paragraph a defence under s 54 was set up.

23 The Tribunal is not a court of strict pleading and Mr Sloey was entitled by any proper means to prove discrimination on the ground of disability. It was obvious that he had a disability, namely coronary artery disease, and, as will appear, that STA's discrimination was grounded on that disability. Shortly before counsel for STA addressed the Tribunal in the manner I have indicated, counsel for Mr Sloey had said this in part -

The issues in this case are going to be whether or not what it was that Mr Sloey suffered was a disability under the terms of the Anti-Discrimination Act; whether the application was reasonable to these guidelines given that there was no individual consideration by the STA of Mr Sloey's medical condition and thirdly, whether or not as I understand my friend's position will be that under the Occupational Health & Safety Act and I think a couple of other acts, the State Transit Authority has certain obligations and these guidelines are a manifestation of those obligations. (sic)

24 The first two grounds argued in this Court were that the Tribunal erred in law -

(ii) in holding that coronary graft heart surgery was, within the meaning of Section 49B(2) of the Anti-discrimination Act, a characteristic that appertained generally to persons who had single vessel coronary disease;

(iii) in holding that coronary graft heart surgery was, within the meaning of Section 49B(2) of the Anti-discrimination Act, a characteristic that appertained generally to persons who had single vessel coronary disease in the absence of evidence, or against the weight of the evidence, to that effect;

25 In its reasons for judgment the Tribunal said this -

The Complainant relies on the direct discrimination provisions of this section. It is clear that the STA treated Mr Sloey less favourably by not allowing him to drive buses for 12 months after his bypass surgery. this restriction was not applied to other drivers without Mr Sloey's disability, i.e. to people in the same circumstances as Mr Sloey. The question is whether this action by the STA was on the ground of Mr Sloey's disability.

26 The Tribunal then set out the terms of s 49B(2) and continued -

The action of the STA was on the ground that Mr Sloey had had bypass surgery. Mr Sloey's disability was a heart condition, and he argued that a characteristic appertaining to people who have such conditions is that they have bypass surgery. Whilst this does not, of course, apply to all people who have a heart condition, it is certainly a remedy sought by many. In his evidence Dr Garvan agreed that bypass surgery was a common treatment for Mr Sloey's disability. The Tribunal accepts the Complainant's argument that bypass surgery would, for a person with a heart condition, fall into the purview of subsection 2 of Section 49B.

27 STA first submitted in this Court that Mr Sloey did not dispute in the Tribunal that STA's decision was based on the fact that coronary artery bypass surgery had recently been performed and that the Tribunal itself appears to have accepted the argument.

28 Counsel for Mr Sloey before the Tribunal was in no position, of course, to determine how STA might put its case, but there is nothing in the transcript that bears out STA's submission that Mr Sloey there accepted the proffered reason as the actual reason. There is a passage in the reasons for judgment which I have quoted, namely the reference to the argument on behalf of Mr Sloey that a characteristic appertaining to relevant people is that they have bypass surgery, but the transcript shows and counsel are agreed that no such argument was put forward on behalf of Mr Sloey.

29 It appears clear that Mr Sloey's case before the Tribunal was that he had a disability, namely a past disability consisting of blockage of a coronary artery, and that STA had discriminated against him in his work on the ground of that disability. He had no need to resort to characteristics of persons having that disability or generally imputed to persons who have that disability for the purposes of s 49B(2).

30 The direct attack on the Tribunal's finding under s 49B(2) was in two parts. First it was submitted that on the ordinary meaning of the word characteristic, bypass surgery is not a characteristic of persons who have blockage of the coronary artery.

31 Counsel referred to the Macquarie Dictionary definition of the word as "a distinguishing feature or quality", to the Shorter Oxford Dictionary definition of "serves to indicate character; distinctive; typical ... as a distinctive mark; a distinguishing peculiarity or quality" and to the adoption of that definition in Bear v Norwood Private Nursing Home (1984) EOC 92-109, in which it was held that the word "characteristic" in South Australian legislation meant "a character which is distinguishing peculiarity or quality".

32 I think that this submission puts the matter slightly inaccurately, because, however STA put its case, it is clear that Dr Garvan relied not on coronary artery graft surgery in general or in the abstract but on the fact that Mr Sloey had undergone that surgery. That being so, I think that if it was appropriate for the Tribunal to consider whether STA discriminated on the ground of a characteristic that appertained generally to persons who had the disability rather than on the ground of the disability itself, the proper question for the Tribunal to answer was whether it was a distinguishing peculiarity or quality of persons suffering blockage of a coronary artery that they often underwent coronary artery graft surgery. It seems to me that any tendency of such patients to undergo such surgery may be described, without straining the ordinary meaning of the words, as a characteristic or a distinguishing peculiarity or quality that they have.

33 The second submission was that there was no evidence that such people resort to such surgery and that this was not a matter of which the Tribunal was entitled to take notice. I should observe that the passage in the Tribunal's reasons for judgment referring to the evidence of Dr Garvan was agreed by counsel to be mistaken. Dr Garvan was not asked whether bypass surgery was a common treatment for persons with Mr Sloey's disability.

34 Although the Tribunal might not be entitled without evidence to conclude that a particular person might or is likely to undergo coronary artery graft surgery because of a condition, it seems a different thing to say that it is common knowledge that persons having blockage of a coronary artery often resort to coronary artery graft surgery. I think that it is a matter of common knowledge that persons in that category have that distinguishing feature. That is a conclusion of fact that the Tribunal could have come to without evidence. I do not accept the arguments of the STA on the two grounds that I have dealt with.

35 That is not the only answer to STA's argument, however, because the passage of the judgment which I have quoted and STA's attack on it have really raised a false issue. As I have explained, Mr Sloey's case in the Tribunal was that he had a disability and that it was because of that disability that STA had discriminated against him. The Tribunal found the disability proved. It was a past disability, namely coronary artery disease, manifesting itself in the blockage of a coronary artery. Because, for the reasons I have explained, Mr Sloey did not need to resort to the definitions of "characteristic" for the purposes of s 49B(2), it seems to me that the Tribunal's reference to those supposed arguments in the passage of the judgment which I have quoted do not accurately state the issues which were before it for determination.

36 If I were to conclude that in misconstruing Mr Sloey's case and stating its reasons accordingly the Tribunal made an error of law, it would become necessary to consider whether a declaration should be made to that effect and the matter remitted to the successor to the Tribunal to be dealt with according to law. If that were done there could be only one result. Notwithstanding what STA submitted to the Tribunal and to this Court, its real reason for acting as it did was not that Mr Sloey had had surgery. Although that was the event which excited consideration of his fitness for work by reference to the standards, that did not mean that the surgery was the reason why Mr Sloey was considered unfit for work. The evidence shows that he was considered unfit because he had a disability and, notwithstanding surgery, presented a greater risk of the occurrence of symptoms than a driver who did not have that disability. This appears from the evidence of Dr Garvan in the following passages -

Q. If you were to assess an employee of the State Transit Authority for his ability to return to his occupation as a bus driver, would it not be that your medical assessment, as you call it, involved getting sufficient reports from either the employees own doctors or a report from an independent specialist as to that person's condition?

A. In this case, no.

Q. Why in this case is that not the case?

A. The only report I required in this case was the first one. The one from Dr Brady dated--

Q. 18 March I think that might be. Is that right?

A. Yes, 18 March.

Q. That's the one that's annexed to your statement:

A. That's the only one I absolutely require is that one.

Q. And why was that the only one that you required?

A. Because my task was to match up what had happened to him with the national standard under which we operated.

Q. Is there anything other than the national standards that you have regard to when you're assessing the employees?

A. No.

Q. So your own assessment or the assessment of an employee's treating doctors as to a person's ability or capacity to do the work, that doesn't form any part of your assessment?

A. Not when a condition quite clearly falls within - or falls under one of the articles in the national standard. When it quite clearly falls within that purview of that article, no, there's no need to obtain any other advice.

...

Q. When you said Mr Sloey is not fit to drive a bus, you did that solely on the basis that the condition that he suffering from is set out within these standards and you looked at the standards relating to his particular condition and said "Mr Sloey is not fit to drive a bus"?

A. Yes, as per--

Q. Notwithstanding the fact that Dr Brady had said directly to you, "In my opinion he will be fit to return to normal duties within three months of his operation". Notwithstanding that Mr Sloey was also consulting a cardiologist from whom you could've obtained a report as to his medical condition"

A. You're quite right, notwithstanding both of those things.

Q. You still said "because the standards tell me that Mr Sloey suffers from angina and as a consequence has had some surgery to relieve him of that, he is not fit to drive a bus for 12 months"?

A. Quite. It was primarily because he'd undergone the surgery. He was not fit to be considered to drive a bus for 12 months. At 12 months he could be reviewed and reconsidered, which is what happened. But in answer to your question, yes, despite the fact that I'd had that advice from one specialist and could've no doubt got the same advice on the other.

...

Q. Can I split it up and ask the same question but twice. What is it about angina that puts a person at a greater risk than another person who doesn't have angina for example?

A. Well a person with angina has heart disease and the clinical pattern of that sort of heart disease which is due to disease of the arteries, coronary arteries, is such that these people are at increased risk of having both a heart attack, a myocardial infarct or even sudden death. So we're not talking about a healthy person now, we're talking about some one who has a diseased state and that can aversely effect them whilst driving a bus compared with somebody who does not have that diseased state.

Q. A person having an angina attack, what is it about their condition, their state that also creates a risk?

A. Well it's a painful condition and it's also a condition that's described as causing a good deal of anxiety in people who suffer from it and it distracts them. Like all painful conditions it's distracting and distraction is one thing you shouldn't have bus drivers undergoing.

Q. What about the difficulties that are associated with somebody who has had bypass surgery?

A. Well I understand and I repeat I'm not an expert in the academiology of coronary disease or post operative coronary - or persons who've had coronary surgery but I am led to believe that these people are still - despite the fact they've had surgery are still at increased risk compared with the non diseased population of having -

CHAIRPERSON: A. I'm sorry Doctor I missed that. These people are still at -

A. Despite the fact that they've had the surgery they are still at increased risk of having a coronary episode, heart attack or sudden death because they still have an underlying disease condition.

37 STA's argument on the first two grounds accordingly fails.

38 I shall deal together with the two other grounds that were argued. They assert that the Tribunal erred in law -

(iv) in holding that Section 54 of the Anti-Discrimination Act and Section 16 of the Occupational Health & Safety Act 1983, did not operate to render any action by the Plaintiff not in breach of the Anti-discrimination Act;

(v) in holding that Section 54 of the Anti-Discrimination Act and their standards published in the document Medical Examinations of Commercial Vehicle Drivers published by the National Road Transport Commission and the Federal Office of road and Safety did not operate to render any action by the Plaintiff not in breach of the Anti-discrimination Act;

39 STA was obliged to comply with the provisions of the Occupational Health and Safety Act 1983. Relevantly, ss 15 and 16 are as follows -

15 Employers to ensure health, safety and welfare of their employees

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails:

(a) to provide or maintain plant and systems of work that are safe and without risks to health,

...

(e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or

...

16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work

(1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

...

40 The Tribunal was told that STA had "formally adopted" the standards in early 1995. The exact nature of the "adoption" was not explained. It was not submitted that any statute or statutory rule in terms compelled STA to apply the standards and it was not submitted in this Court that the Tribunal was wrong in concluding that the standards do not have the force of a law. STA contended in the Tribunal that the Occupational Health and Safety Act and the standards combined to produce the necessity to certify unfit to drive a bus persons who had suffered from coronary artery disease as a result of which they had had coronary artery graft surgery within the last 12 months. Its case seems to have been that its voluntary adoption and application of the standards was a means by which it met its obligations under the Occupational Health and Safety Act.

41 In its reasons for judgment the Tribunal said this -

There is no doubt that the STA is mandated to protect wherever possible public safety. This obligation not only exists in occupational health and safety legislation but in the authority's own governing legislation. However, the Tribunal is not satisfied that the rigorous and inflexible interpretation of the relevant guidelines, with no consideration for the individual circumstances of Mr Sloey's case, is a mandatory duty pursuant to either of these pieces of legislation, and therefore covered by the exception in Section 45(1) of the Anti-Discrimination Act.

The Standards do not have the force of a law. They are developed by medical practitioners, experienced in the relevant areas of medicine, to provide guidance for those making decisions regarding the granting of drivers licences. It is a most appropriate practice for the STA to adopt such standards, but such adoption gives them no greater force. They have not been put before the Parliament, and are simply a code of practice adopted by a statutory authority. As such the Section 54 exception does not apply to them directly.

Rigorous compliance with the standards must therefore be assessed in the context of the STA's more general duties under its legislation and occupational health and safety legislation. The sections of the standards quoted in the evidence make it clear that they are to be used as guidelines, and that the individual circumstances of each case should be considered. Dr Garvan did not take this course. He did not physically examine Mr Sloey, he did not ask for a report from his cardiologist. In fact, it was clear from Dr Garvan's evidence that Mr Sloey fell into a category described by the standards and that was the end of the matter. Whilst the protection of the public must weigh heavily on the mind of the STA it is not so onerous as to allow the standards to achieve a mandatory status for the purpose of Section 54 of the Anti-Discrimination Act.

42 STA submitted that this was a misdirection and that STA's obligations under ss 15 and 16 Occupational Health and Safety Act required the literal application of the standards which in turn required any bus driver to be certified unfit to drive during the 12-month period immediately after coronary artery graft surgery. Such certification being necessary, STA had a defence under s 54 of the Act. Although ground (iv) would appear to put the case more widely, STA did not argue in the Tribunal or in this Court that the necessity to discriminate arose other than by the application of the standards.

43 STA's submissions incorporate two propositions: first, that the need to comply with ss 15 and 16 Occupational Health and Safety Act obliged STA to apply literally the provisions of the standards and secondly that the necessary result of the literal application of the standards was that all employees must be certified unfit to drive a bus within 12 months after coronary artery graft surgery.

44 It was submitted that the obligations of an employer under s 15 are onerous. "Ensure" means "guarantee", "secure" or "make certain". Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467.

45 Section 16 imposes upon every employer an obligation not to expose members of the public to risks to their health or safety arising from the conduct of its undertaking while they are at the employer's place of work.

46 Failure to comply with the provisions of these sections attracts heavy penalties.

47 It was submitted that their effect was to require STA to take whatever action might be possible to guard against risks to safety.

48 The argument was put in the following way. The standards, which were not challenged below, established that drivers in Mr Sloey's condition were more likely than other drivers to suffer symptoms. Sometimes no warning occurs before the onset of symptoms, including heart attack. Symptoms may be misinterpreted or ignored. Serious injury or death to passengers, other drivers and pedestrians may follow. Although medical and surgical treatment of ischaemic heart disease may lead to the alleviation of symptoms and improved life expectancy, coronary arteriosclerosis is a progressive process and the risk of heart attack, collapse and sudden loss of consciousness is greater in people who suffer from that disease than in people that do not.

49 The stated object of the standards was to promote uniform or consistent road transport policies and practices throughout the country in order to enhance road safety.

50 The drivers of buses operated by STA work eight to nine-hour shifts. Their buses carry up to 80 passengers at a time. If the driver of a bus collapsed it would be very difficult for anyone else to get control of the vehicle. Buses are not equipped with automatic locks or brakes. If a driver lost control of a moving bus, the safety of other drivers, pedestrians and passengers would be put at risk. STA's obligation under ss 15 and 16 was to remove that risk.

51 Ss 15 and 16 create offences of absolute liability, and consequently no mens rea need be proved and there is no "defence" of honest and reasonable mistake. Shannon v Comalco Aluminium Limited (1986) 19 IR 358; Cullen v State Rail Authority (NSW) (1989) 31 IR 207.

52 A defendant employer prosecuted for an offence under s 15 or s 16 may set up the defence under s 53 of the same Act to the effect that it was not reasonably practicable to comply with the relevant statutory provision or that the commission of the offence was due to causes over which the employer had no control and against the happening of which it was impracticable to make provision. However, the Tribunal has held that such defences are to be disregarded in proceedings in which an employer pleads necessity under s 54 of the Act in an action based upon its discrimination against an employee. Kitt v Tourism Commission (1987) EOC 92-196; Bugden v State Rail Authority of NSW (1991) EOC 92-360. The correctness of that principle was not challenged in the hearing before this Court.

53 The burden of proving necessity for the purposes of s 54 lay on STA. Although it was entitled to point to the heavy duty resting upon it because of ss 15 and 16 Occupational Health and Safety Act I think that in order to establish the defence of necessity it had to do more than prove that Mr Sloey fell into a category of drivers who epidemiologically presented an increased risk of symptoms. In my opinion STA had to show that it was necessary to certify Mr Sloey himself unfit to drive a bus. That is to say, STA was obliged to consider the risks that Mr Sloey presented as an individual.

54 There is authority for this approach. In Kitt v Tourism Commission (1987) EOC 92-196 an employee suffered from epilepsy and his employer discriminated against him because of what was said to be his proneness to suffer seizures, either because it was a characteristic which appertained generally to persons suffering from epilepsy or one which was generally imputed to such persons. The Tribunal took the view that it was insufficient merely to look at the risks that might be presented by a person in a category but necessary to consider the circumstances of the employee himself. The Tribunal said this at 76,886-7:

The respondent's argument, put shortly is this. If Mr Kitt were to suffer an epileptic seizure while working as a caves guide, then the safety of visitors to the caves and, possibly, other employees, would be threatened. Accordingly, his employment as a guide was inconsistent with the employer's obligations under the Occupational Health and Safety Act. It was therefore necessary that his employment be terminated in order to comply with that Act.

By virtue of sec. 109 of the Anti-Discrimination Act, the burden of establishing this defence lies upon the respondent. It must be affirmatively proved that the respondent's obligations under the Occupational Health and Safety Act required that Mr Kitt be dismissed from his employment as a guide; or to put it another way, that the continued employment of Mr Kitt constituted such a risk to the safety of other persons within the caves that the employer was obliged to dismiss him in order to comply with the legislation..

There is no concept of reasonableness imported here. The question is not one of what the employer believed, nor of whether any such belief was reasonably held or based upon adequate grounds. The sole question is whether, from an objective point of view, Mr Kitt's employment constituted a risk to the safety of other persons, within the meaning of sec. 15(1) and 16(1) of the Occupational Health and Safety Act.

From a practical point of view, no issue would be likely to arise under this legislation unless Mr Kitt actually suffered a major seizure while at work for it is the consequences of such a seizure which are regarded by the employer as constituting a risk to the safety of caves visitors or other employees. Accordingly, in determining whether this defence is made out, it is necessary to consider two factual matters: first, the likelihood of Mr Kitt suffering a seizure while at work; and secondly, the likely consequences if he did so.

55 In Bugden v State Rail Authority of NSW it was held similarly that it was necessary in order to consider the defence under s 54 of the Act to look at the personal circumstances of the employee.

56 In Clinch v Commissioner of Police (1987) EOC 92-203 a defence of necessity failed and discrimination was held to have been unlawful because the applicant was rejected on the ground of his impairment alone, without regard to his individual capabilities.

57 Counsel for STA relied on a decision of the Court of Appeal, Victoria in H J Heinz Co Australia Limited v Turner, 1 July 1998 unreported. The appellant discriminated against the respondent, applying a blanket policy of denying overtime because he fell into a category of persons classified fit only for restricted duties. The decision to do so was made without assessment of his individual capabilities. The respondent brought proceedings in the Anti-Discrimination Tribunal, Victoria and the appellant set up a defence under s 21(4) of the Equal Opportunity Act 1984 (Victoria), which excluded from the purview of the Act discrimination which was authorised or required by or under any law, including a law of Victoria. The law relied on by the appellant was s 21 Occupational Health and Safety Act which provided that an employer should "provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health." The burden of proving that the appellant's action was not authorised or required by that section lay on the respondent.

58 It seems to me that the defence under s 21(4) of the Victorian Act and that under s 54 are unalike. To say that the application in a particular way of a blanket policy is authorised by an Act is one thing. It is quite a different thing to say that it is necessary for an employer to act in a particular way in order to comply with a requirement of another Act or statutory instrument. I find the case of no assistance.

59 In my opinion the Tribunal was correct in concluding that it was not necessary for STA, in order to comply with the requirements of ss 15 and 16 Occupational Health and Safety Act to apply the standards without regard to the individual capabilities of Mr Sloey.

60 In any case, an examination of the standards themselves shows that they are not intended to be applied unquestioningly without regard to the circumstances of the individual person against whom a licensing authority or employer is considering discriminating. On the contrary, the standards promote a flexible, informed approach. They begin by advocating sensitive treatment and the making of decisions on the best available evidence. They acknowledge the existence of rapid advances of medical knowledge and the consequent need for the review of standards. As though to illustrate this point, the Tribunal was informed that a later edition of the standards had substituted three months for 12 months as the period during which drivers who had undergone coronary artery graft surgery present epidemiologically or statistically an increased risk of the occurrence of symptoms.

61 Next, the standards are intended to assist medical practitioners who are conducting medical examinations. That implies that those medical practitioners are to give weight not only to the standards generally but to the results of the examinations of particular drivers. And that seems to be only common sense. Drivers falling into Mr Sloey's category may be expected to have a wide range of conditions and symptoms. Some will have suffered myocardial infarction and some not; some will have sustained heart damage and some not; some will have symptoms and some not; some will perform satisfactorily in medical examinations and some not. If techniques exist which can measure the degree of risk presented by individual drivers who are shown only statistically to be in a category of drivers who present a higher risk of symptoms, it seems to me that the standards expect them to be used.

62 These conclusions are supported by the requirements of the standards that the final decision whether to certify rests with the licensing authorities (which must be taken here to refer to any employer making similar decisions) and that examining medical officers are expected to keep themselves appraised of major changes in medical knowledge which may influence their assessment of drivers.

63 In my opinion the Tribunal was correct in observing that the standards show themselves as intended to be used only as guidelines.

64 Of course, as the Tribunal found, the STA made no attempt to apply the standards. There was no medical officer appraised of changes in medical knowledge, no medical examination of Mr Sloey and no informed judgment, using the terms of the standards, "about the impact of single or multiple conditions on the whole person function" of Mr Sloey. On the contrary, as soon as Dr Garvan obtained confirmation from Dr Brady that surgery had been carried out he regarded the matter as closed.

65 The fourth and fifth grounds are not made out.

66 The summons is dismissed. The plaintiff must pay the first defendant's costs in an amount to be agreed or assessed.

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LAST UPDATED: 12/03/1999