Case: Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562
Outcome: followed
In the case of the transport claim, I accept that Mr Rainsford experienced some pain and suffering as a result of being transported in the manner in which he was. There is however, another problem with his claim on this point. It is that he was able to comply with the condition that was imposed. Mr Rainsford attempts to get around this problem by saying that the requirement was that he be transported without access to conditions that would protect his back from injury. In support of this negative formulation of the condition, he relies on the recent Full Court decision in Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562. In that case, the appellant was a deaf child who was denied access to an Auslan teacher or interpreter. The trial judge found that because the child could cope in a regular classroom without Auslan assistance, she could comply with the condition that she "accept an education and receive instruction in English without the assistance of an Auslan teacher or an Auslan interpreter": Hurst v Education Queensland [2005] FCA 405 at [85] . The Full Court found that the trial judge erred in his construction of s 6(c) of the DDA. Ryan, Finn and Weinberg JJ said at 151 FCR at [134]: "His Honour's own findings ought to have led him to conclude that [the appellant] was relevantly 'not able to comply' with the requirement or condition that she be taught in English, without the assistance of Auslan. In our view, it is sufficient to satisfy that component of s 6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can 'cope' with the requirement or condition. A disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage. In [the appellant's] case, the evidence established that it had done so." The evidence referred to in this passage included that without Auslan in the classroom the appellant "would cope, but not reach her full educational potential": Hurst 151 FCR at [44] and [108] [113]. 101 The Full Court made it plain (at Hurst 151 FCR at [132]) that the outcome depended on the highly specific facts of the case. There was almost no discussion of whether a claimant who suffers something less than 'serious disadvantage' in complying with a condition would satisfy s 6(c) of the DDA. There is, however, one obiter paragraph that is fatal to Mr Rainsford's claim. After discussing the first instance decision of Madgwick J in Clarke v Catholic Education Office (2003) 202 ALR 340, in which his Honour had found in favour of another deaf child who would have faced 'serious' or 'substantial' disadvantage by not being educated with Auslan, the Full Court said at Hurst 151 FCR at [120]: "there appears to be no real difference between his Honour's [ie Madgwick J's] use of the term 'substantial disadvantage' in relation to the comparable base group, and his use of the term 'serious disadvantages' in relation to the issue of ability to comply. On the other hand, neither formulation accords with [the submission of counsel for the intervener, the Human Rights and Equal Opportunity Commission,] that 'non-trivial disadvantage' is all that s 6(c) contemplates. That submission goes too far, and cannot be accepted." Later on, their Honours note that they do not do deal with the 'various construction arguments' put by counsel for HREOC: Hurst 151 FCR at [135]. There was no evidence before me as to what those arguments were.