Case: Purvis v State of New South Wales [2003] HCA 62 ; (2003) 217 CLR 92
Outcome: applied
Purvis v State of New South Wales [2003] HCA 62 ; (2003) 217 CLR 92 , Gummow, Hayne and Heydon JJ noted at [213] that the concept of less favourable treatment involves an objective assessment and comparison: of the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability "in circumstances that are the same or are not materially different". The last phrase in s 5(1) qualified by s 5(2) of the Act, which provides that a disabled person's need for different accommodation or services does not constitute a material difference when determining whether the alleged discriminator has treated the disabled person less favourably than a person without the disability. Section 5(1) of the Act requires that the circumstances surrounding the treatment of the disabled person are identified. What must then be examined is what would have been done in those circumstances if the relevant person were not disabled; see Purvis at [223] per Gummow, Hayne and Heydon JJ. These circumstances are the objective features that surround the actual or intended treatment of the disabled person by the alleged discriminator; see Purvis at [224]. If the comparison reveals that the disabled individual was treated less favourably, the further question which must be asked is whether that difference was "because of" their disability; see Purvis at [236] per Callinan J. The relevant questions for determination are, firstly, how would Focus have treated a person in these circumstances without Ms Devers's profound deafness? Secondly, if the treatment of Ms Devers was less favourable than the treatment that would be given to a person without her disability, was that difference because of her disability? Section 15 of the Act only applies if it is shown that Ms Devers was treated less favourably than a person without her disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Ms Devers's treatment. In the present case, that the relevant "comparator" is an employee of Focus, in a similar role, without Ms Devers's disability who also has her attributes. For example, the relevant comparator in Purvis was a child without the applicant's disability who nevertheless displayed the same violent behaviour as the applicant; Purvis at [222] [225]. I will separately consider each allegation of direct discrimination and the relevant circumstances in relation to each allegation. Doctors' appointments Ms Devers claims that Focus treated her less favourably than hearing staff in that it would not allow Ms Devers to attend doctors' appointments with deaf clients but would allow hearing staff to attend appointments. She said that she was only permitted to attend medical appointments when she went with David and Leigh Travaglia's mother, Ms Blake, and did so on two or three occasions. Mr Edo Travaglia gave evidence that both Ms Sipthorpe and Ms Colleen McFarlane told him that "Focus management" had said that Ms Devers was not permitted to take clients to medical appointments as she was deaf and unable to communicate with doctors. However this evidence is hearsay and unsupported by other evidence.