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THE UNEXPECTED IMPACT OF A MEDICAL TRAIT

A case study in disability discrimination in Australia involving a carrier of the sickle cell trait

Rolf Driver *

Introduction 1

This paper discusses how the imposition of work restrictions because of a medical trait can give rise to unexpected legal consequences for employers and medical practitioners. For the purpose of exploring these issues I use a case study of a proceeding before the Federal Magistrates Court 2. That case was a disability discrimination claim between Constable Bradley Trindall and the New South Wales ("NSW") Commissioner for Police. The case is, as far as I know, the first in Australia involving a claim of disability discrimination arising out of an inherited genetic defect. It is certainly the first such case in the Federal Magistrates Court.

Constable Bradley Trindall is a New South Wales policeman who sued the NSW Police Commissioner for damages. He is of mixed Aboriginal and black African race. Constable Trindall claimed both direct and indirect disability discrimination and also racial discrimination in his employment. He has the sickle cell trait which is an abnormal blood condition. The condition is a disorder which can be inherited from one or both parents. Where the condition is inherited from only one parent, the individual has the trait. The individual with the trait is a carrier of the more serious disease which is inherited from both parents. The condition was the subject of expert opinion evidence, which is discussed later in this paper.

It is now known (in light of that evidence) that people who are merely carriers of the trait should face no particular problems in any work situation. Constable Trindall was known to be a carrier of the sickle cell trait when he joined the NSW Police Service and he was accepted as fit for virtually all duties. However, in 2000 Constable Trindall’s brother died and Constable Trindall thought that the sickle cell trait might have been a cause. There was a coronial inquest and Constable Trindall provided information which influenced the outcome.

Constable Trindall’s concerns about his brother’s death and his own condition became known to the NSW Police Service through his uncle and directly from him in January 2001. His superiors required a report from him and he was placed on informal restricted duties at the discretion of his duty officer pending a reliable medical assessment.

At the request of the NSW Police Service Constable Trindall’s treating General Practitioner ("GP") referred him to a specialist. The specialist prepared a report which indicated that Constable Trindall could continue on full operational duties. Nevertheless, the police medical officer ("PMO") handling Constable Trindall’s case required an assessment from Constable Trindall’s local GP about the appropriateness of the informal restrictions Constable Trindall had been placed on. Constable Trindall’s GP knew much less about the sickle cell trait than the specialist whose report effectively cleared Constable Trindall for full operational duties. The GP provided a certificate which stated that Constable Trindall was generally fit and healthy but that precautions were called for. These precautions reflected the specialist’s report and also the informal restrictions upon which Constable Trindall had been placed at the discretion of his local duty officer. The GP did not understand that his certificate might lead to Constable Trindall being placed on formal restricted duties. His certificate was treated by the PMO as requiring formal restrictions on Constable Trindall’s employment that could eventually lead to his dismissal from the NSW Police Service on medical grounds.

The PMO imposed formal restrictions on Constable Trindall’s employment even though he did not think that they were really needed and even though he thought the GP’s certificate went further than the specialist’s opinion warranted. The PMO did not discuss the situation with the GP or the specialist.

Constable Trindall was left in a difficult position. He was worried about his condition and his concerns seem to have been confirmed by the restrictions placed upon his employment. On the other hand, he was unhappy with the restrictions and wanted to return to normal duties. He complained about the restrictions but was told that they could not be removed unless his GP gave a certificate which showed that they should be removed. The GP was unable to assist because he thought that his existing certificate was required by the specialist’s opinion.

Because of Constable Trindall’s continuing complaints, he was referred to a New South Wales health authority (HealthQuest) for a further assessment. HealthQuest mistakenly sent a letter warning Constable Trindall that he faced dismissal from the NSW Police Service on medical grounds.

Constable Trindall then made a complaint to the Human Rights and Equal Opportunity Commission ("HEROC"). Following that complaint, the NSW Police Service obtained a report from a further specialist who confirmed what the PMO had thought throughout, namely that the restrictions on Constable Trindall’s employment were unnecessary. The restrictions were only removed when, on the basis of the further specialist’s report, Constable Trindall’s treating GP provided a revised medical certificate.

Constable Trindall’s complaint was primarily one of direct disability discrimination. Alternatively, he asserted indirect disability discrimination. Constable Trindall claimed that the way he was treated breached the Disability Discrimination Act 1992 (Cth) (“DDA”). He also made a claim of direct racial discrimination asserting breaches of the Racial Discrimination Act 1975 (Cth) (“RDA”). HREOC was unable At the request of the NSW Police Service Constable Trindall’s treating General Practitioner ("GP") referred him to a specialist. The specialist prepared a report which indicated that Constable Trindall could continue on full operational duties. Nevertheless, the police medical officer ("PMO") handling Constable Trindall’s case required an assessment from Constable Trindall’s local GP about the appropriateness of the informal restrictions Constable Trindall had been placed on. Constable Trindall’s GP knew much less about the sickle cell trait than the specialist whose report effectively cleared Constable Trindall for full operational duties. The GP provided a certificate which stated that Constable Trindall was generally fit and healthy but that precautions were called for. These precautions reflected the specialist’s report and also the informal restrictions upon which Constable Trindall had been placed at the discretion of his local duty officer. The GP did not understand that his certificate might lead to Constable Trindall being placed on formal restricted duties. His certificate was treated by the PMO as requiring formal restrictions on Constable Trindall’s employment that could eventually lead to his dismissal from the NSW Police Service on medical grounds.

appropriateness of the informal restrictions Constable Trindall had been placed on. Constable Trindall’s GP knew much less about the sickle cell trait than the specialist whose report effectively cleared Constable Trindall for full operational duties. The GP provided a certificate which stated that Constable Trindall was generally fit and healthy but that precautions were called for. These precautions reflected the specialist’s report and also the informal restrictions upon which Constable Trindall had been placed at the discretion of his local duty officer. The GP did not understand that his certificate might lead to Constable Trindall being placed on formal restricted duties. His certificate was treated by the PMO as requiring formal restrictions on Constable Trindall’s employment that could eventually lead to his dismissal from the NSW Police Service on medical grounds.

The Commissioner denied that either the DDA or the RDA had been breached. It was accepted by both parties that the NSW Police Service knew of Constable Trindall’s condition when he joined the police force in 1995 and that restrictions were placed upon his employment in 2001 following medical assessments. It was also accepted that these restrictions were later removed in 2003 after Constable Trindall made his complaint to HREOC.

The evidence before the Court 3

At hearing, Constable Trindall gave evidence that he was diagnosed with the sickle cell trait when he was 20 years of age and he disclosed his condition to the Police Service when he applied to join it. When Constable Trindall was confirmed as a police officer fit for service, he was restricted from joining the air wing and the diving unit. Following his confirmation, Constable Trindall said that he was not subject to any restriction and that he did not suffer any complications relating to his sickle cell trait in performance of his duties, which included attending to domestic violence matters, assaults, street offences and motor vehicle offences.

Constable Trindall stated that in 2000 a dispute occurred between him and the NSW Police Services concerning his non attendance for duty during the Sydney Olympics. Constable Trindall said that he did attend for duty as he had to attend hospital for a medical procedure unrelated to his sickle cell trait. In a subsequent mediation related to his non attendance, Constable Trindall deposed that he felt under pressure to disclose details of his sickle cell trait and he was concerned that suggestions had been made that he expected special treatment because of his Aboriginality.

Constable Trindall was asked to provide a written report, and Constable Trindall claims that it was suggested that he put in the report a request that the police help to find answers about the death of his brother (who died as a result of a violent incident, possibly with a sickle cell trait complication). Constable Trindall was not aware that putting such a request in a report could have the effect of limiting his duties. After a review of the report written by Constable Trindall, he was directed to attend a medical assessment with a haematologist in around March 2001. The haematologist reviewed the coroners report into the death of Constable Trindall’s brother and medical records related to Constable Trindall’s admission into hospital during police training in 1995. The haematologist concluded that Constable Trindall had suffered from a sickle cell trait episode in 1995 (when he was hospitalised during physical training with a then undiagnosed ailment) and recommended that he avoid potential precipitants such as dehydration, heat exposure or physical conditioning. When Constable Trindall returned to duty he was directed to obtain a medical certificate from his GP relating to his fitness for duties. The certificate was subsequently provided by Constable Trindall’s GP (Dr Ling).

By letter dated 8 May 2001, a senior police medical officer, Dr Norris (“PMO”), recommended restriction upon Constable Trindall’s employment after reviewing the reports from the other doctors. Constable Trindall stated that he considered the restrictions unreasonable, “precautionary” and “even going beyond the medical certificate of Dr Ling”. Later permanent restrictions where imposed on Constable Trindall after another specialist, Dr Lindeman, confirmed the desirability of precautions to avoid sicking episodes. Constable Trindall maintained that neither he nor his superiors received written notification about his work restrictions. Constable Trindall stated that the restrictions caused him to become extremely anxious, distressed and depressed and that it resulted in him seeing a counsellor, who recommended that he see a psychiatrist, the latter which he could not afford. Constable Trindall was prescribed anti-depressants. Constable Trindall was of the view that the police force should pay for his medical treatment because it was work related. He lodged a workers' compensation claim which was rejected. Constable Trindall discussed the fact that he was upset about being placed on restricted duties and he stated that at no time did he agree with the situation. He told his superintendent about his unhappiness and urged his GP to alter his medical assessment several times.

Constable Trindall contends that his superintendent, who came with him on one visit to see Dr Ling, said words to the effect that “the restrictions need to be lifted as his career is in jeopardy”. Dr Ling stated that he took advice from the specialist and would remove the restrictions only if the specialist advised him so. Constable Trindall stated that on several occasions he requested that the police service find a new specialist that would lift the restrictions. Constable Trindall said that he was told by the police service that it was his own responsibility to find a new specialist and that if he could not find someone to lift the restrictions he might be medically discharged from the police service. Constable Trindall said that this placed a great deal of pressure and anxiety on him.

Constable Trindall eventually communicated with Dr Felix Konetey-Ahulu, who Constable Trindall described as a “world renowned expert” on sickle cell trait and sickle cell disease. Dr Konetey-Ahulu expressed doubt that Constable Trindall’s brother died because of the sickle cell trait and opined that persons with the sickle cell trait, as opposed to persons with sickle cell disease, rarely suffer any problems. Constable Trindall sent copies of the comments by Dr Konetey-Ahulu to various staff members in the police force but was told that a report from Dr Konetey Ahulu was not acceptable as he was not based in Australia.

Constable Trindall was then informed by his uncle (also in the police service) that a letter was sent to him stating that the PMO recommended that Constable Trindall be medically discharged from the police service. Constable Trindall stated that he was shocked when he read the letter (which was undated and unsigned, and sent to the wrong address) and that that outcome compelled him to lodge a complaint with HREOC. His solicitors wrote to the NSW Police Service requesting that he not be medically discharged pending the resolution of his complaint.

Constable Trindall said that he suffered emotional and financial detriment as a result of work restrictions that were imposed from 2001 until 2003.

Constable Trindall stated that he was instructed not to wear his uniform in June or July 2001 and was only permitted to resume wearing his uniform in around March 2003 when work restrictions were removed. In essence, Constable Trindall regarded the restrictions as a mistake. He accepted that medical practitioners had been involved in the imposition of the conditions. He also accepted that in the course of performing his duties it was possible that he might become involved in situations requiring physical exertion, including physical altercations.

From January 2001, Constable Trindall was still performing general operational policing duties with discretionary restrictions to avoid violent and confrontational situations. In or around May 2001, the PMO imposed the following restrictions upon Constable Trindall’s employment:

1. No custodial duties;
2. Not to wear appointments;
3. Not to wear uniform outside the workplace;
4. Not to drive marked Police vehicles;
5. Not to handle prisoners or intoxicated persons;
6. Not to work alone in public area of a Police station;
7. Avoid potential precipitants such as dehydration, heat stress, severe sudden exertion, domestic and other violent situations.

The restrictions were made permanent from August 2001 and remained in place until around March 2003. The restrictions were only lifted following the receipt of a report by Associate Professor Hertzberg obtained by the Police Service which recommended that Constable Trindall not be restricted in any way from undertaking regular police duties.

Expert evidence concerning the sickle cell condition 4

Expert evidence was provided by Professor Hertzberg concerning the nature of sickle cell trait and the more serious sickle cell disease. Sickle cell disease is an inherited disorder affecting the shape of red blood cells which leaves the sufferer severely ill for much of their lives. It is caused by a recessive allele which is found primarily among persons of black African descent, but may also be present in people of other origins. Those with only one of the alleles are known as carriers of the sickle cell trait. At one stage it was thought that those with the sickle cell trait exposed to low-oxygen environments would develop "sickling" symptoms like those with the disease. Screening black African employees (and potential employees) for the sickle cell trait has been used in the United States and the United Kingdom armed forces and airline industry in relation to pilots and other air crew on safety grounds. The result was that many potential pilots or air crew of African descent were unable to work in their chosen profession. However, evidence now indicates that carriers of the sickle cell trait will not develop the sickle cell disease, regardless of their environment. The practice of screening for this trait has now been stopped in the USA, and is under review in the UK. It has been suggested that the approach to sickle cell trait screening in the past was a combination of inadequate education and racial discrimination.

The legal issues before the court

The claim made by Constable Trindall was based upon the proposition that the NSW Police Service mismanaged the examination of Constable Trindall’s circumstances as a mere carrier of the trait and imposed upon him unnecessary and discriminatory work restrictions, causing him loss and damage.

The NSW Police Commissioner did not dispute that the sickle cell trait is a "disability" for the purposes of the DDA.

The direct disability discrimination claim

Counsel for Constable Trindall submitted that by imposing work restrictions upon over a certain identifiable time period, the NSW Police Service breached ss.15(2)(a), (b) or (d) of the DDA5.

Counsel submitted that by that conduct, s.5 of the DDA was also breached6. The initial restrictions imposed upon Constable Trindall's employment were informal and flexible. Constable Trindall’s superintendent had become aware of Constable Trindall’s condition at the same time as a dispute arising out of Constable Trindall's refusal to perform duty at the Olympics in Sydney was being resolved.

The superintendent required Constable Trindall to prepare a report upon his condition which he forwarded to the PMO. Pending the receipt of reliable medical opinion suggested by the PMO, the superintendent left Constable Trindall on full general duties restricted according to his duty officer's discretion, to avoid physical or confrontational situations.

These work restrictions were terms or conditions of employment that the employer affords the employee.

The expression “terms and conditions of employment: in s15(2)(a) is not restricted to the matters contained in the contact of employment but is designed to encompass all demands, requirements, benefit and concessions in the actual employment which the employee must comply with or can accept 7.

Elements of a direct discrimination claim under the DDA 8

In order to succeed in a claim of direct disability discrimination, Constable Trindall had to establish that:

a) he was treated less favourably, in the terms and conditions of employment afforded to him, than the employer would treat a person without the disability

b) the less favourable treatment must have occurred "because of" or "on the ground of" Constable Trindall's disability in the sense that at least one of the reasons for the imposition of the conditions must have been that disability;

c) Constable Trindall must have been treated "less favourably" when compared with a comparable person without the disability in the same circumstances or circumstances that are not materially different than those applicable to Constable Trindall.

Assessing a comparator 9

The comparator may be a hypothetical comparator. There was overwhelming evidence presented that Constable Trindall was at the relevant time concerned about the possible consequences of his sickle cell trait. It was held that the health concern of Constable Trindall should be reflected in the definition of the comparator. So should the absence of the sickle cell trait and the general state of health of the comparator, including the risk (albeit small) of a similar risk of injury arising. Upon this basis the appropriate hypothetical comparator used in coming to the decision was:

(a) a New South Wales police officer without the sickle cell trait, who is generally healthy but who had concerns about his health;

(b) who had a low risk of injury of a similar nature to that of a person with the sickle cell trait; and

(c) who should take reasonable precautions to avoid that risk of injury Constable Trindall was concerned about his condition following the death of his brother and shared his concerns with fellow officers. It is clear enough from the evidence that Constable Trindall himself made his own disclosure of his condition to his superintendent which put in train a course of action that led ultimately to the permanent imposition of work restrictions.

Resolution of the legal issues 10

Constable Trindall thought that the imposition of work restrictions was a “payback” for his refusal to perform duty at the Olympics. The respondent’s evidence concerning the absence of any such “conspiracy” in the NSW Police Service was accepted. There was a coincidence of time in terms of the resolution of the disciplinary process and the instigation of the process leading to the imposition of work restrictions. The police witnesses denied pursuing work restrictions as a result of animosity towards Constable Trindall.

It was held that the work restrictions were imposed because of Constable Trindall's disability and for no other reason. The focus must be on the "real reason" for the act11. If the "real reason" for the imposition of the work restrictions was not Constable Trindall's disability but an unrelated act of animosity, revenge, or discipline then, while Constable Trindall's claim might have been actionable in another forum, it would not be actionable in the Federal Magistrates Court under the DDA or the HREOC Act.

The question then was, was Constable Trindall treated less favourably than the hypothetical comparator would have been treated in circumstances that were the same or not materially different?

The initial restrictions imposed by the superintendent were a practical and reasonable response to the matters revealed by or about Constable Trindall, including the information that sickle cell trait may have been a factor in the death of Constable Trindall’s brother. The superintendent sensibly left Constable Trindall on full general duties to be restricted only in accordance with his duty officer's discretion to avoid physical or confrontational situations. This was a temporary expedient pending a proper and reliable medical assessment of Constable Trindall and required the exercise of common sense.

The PMO requested that Constable Trindall obtain a referral from his GP to Dr Presgrave, a haematologist. The haematologist’s report showed that there was some risk of Constable Trindall suffering a sickling episode and that he should avoid potential precipitants such as dehydration, heat exposure or physical conditioning. Importantly, Dr Presgrave did not point to any need for Constable Trindall to avoid violent or confrontational situations. The thrust of his report was that Constable Trindall should drink plenty of liquids and avoid heat exposure or extreme physical exercise. Dr Presgrave did not consider that any further medical investigation would be worthwhile.

Dr Ling (the GP) then had the task of reviewing the restrictions to which Constable Trindall was subject and to provide a certificate as to his fitness perform duty in light of the opinion of Dr Presgrave (the haematologist). Dr Ling stated that Constable Trindall had the trait but was fit and healthy and had no chronic symptoms. This statement was consistent with Dr Presgrave’s opinion. However, Dr Ling added a rider to his certificate that Constable Trindall should take precautions and should avoid domestic disputes and violent situations.

The discriminatory acts

Where did the addition made by Dr Ling (GP) come from? The answer was in the initial restrictions imposed upon Constable Trindall by the superintendent. Dr Ling was aware that those kinds of restrictions had already been imposed upon Constable Trindall and the certificate indicated that Dr Ling was “happy” with the informal restrictions that had been imposed. In a letter proposing to permanently place Constable Trindall on restricted duties Dr Norris stated that: “Dr Ling's restrictions, which seem to have gone further than those recommended by Dr Presgrave, mean that Constable Trindall has now been placed on permanent restricted duties by his treating doctors.”

This differed from what the PMO originally asked of Dr Ling: an expression of agreement with the informal and flexible restrictions imposed by the superintendent. Dr Ling's certificate only went further to the extent of reciting the restrictions that had been put in place subject to the duty officer's discretion. Even though Dr Norris thought that the restrictions were “excessively cautious” he said he was obliged to abide by the medical certificate of Dr Ling.

Earlier in 2001, Dr Norris had expressed agreement with Constable Trindall being left on normal operational duties subject to his duty officer's discretion to avoid domestic disputes and violent situations.

By imposing work restrictions that were unnecessary and were known to be unnecessary at the time they were imposed, the NSW Police Service treated Constable Trindall less favourably than it would have treated a person without the sickle cell trait. This constituted direct disability discrimination.

The Court also found that the claim of indirect disability discrimination had been proved. This was based on a consideration of s.6 of the DDA.

Section 6 of the DDA12 required that Constable Trindall establish that the NSW Police Service discriminated against him on the ground of his disability because the Police required Constable Trindall to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and (c) with which Constable Trindall did not or was not able to comply.

In this case Constable Trindall was required by the superintendent to submit a report on his condition. The superintendent also imposed initial flexible restrictions upon Constable Trindall's performance of duty. The PMO required that Constable Trindall be examined by a specialist and that his treating GP assess the appropriateness of the temporary restrictions to which Constable Trindall was subject. Subsequently, after formal restrictions were imposed by Dr Norris, it was made clear to Constable Trindall that the restrictions could only be removed if further medical opinion was obtained which called for the removal of those restrictions.

The requirement to provide a medical assessment on the appropriateness of work restrictions imposed by the employer was plainly a condition, requirement or practice for the purposes of s.6 of the DDA.

By requiring Constable Trindall to obtain a further medical certificate justifying the removal of the unnecessary work restrictions, the NSW Police Service imposed a requirement on Constable Trindall that he could not comply with and which was indirectly discriminatory on the basis of his disability. The requirement that Constable Trindall produce medical opinion supporting the removal of those restrictions was a further discriminatory act under s.15(2)(a).

In any event, the requirement or condition imposed upon Constable Trindall that he demonstrate his fitness for service by producing medical opinion justifying the removal of the restrictions constituted a "detriment" for the purposes of s.15(2)(d) of the DDA. It was a detriment because Constable Trindall was prevented from performing the duties which he sought to perform unless he could comply with the requirement.

Constable Trindall received an award of damages for the distress and anxiety caused to him, and lost overtime and allowances. He also received interest. The RDA claim failed. The claim of racial discrimination was put upon the basis that sickle cell trait is a condition which affects only persons from certain racial backgrounds, particularly persons of African or African American descent. However, the trait also occurs in persons of a variety of ethnic backgrounds, including persons of various Mediterranean backgrounds. The condition is one that is inherited. It was found that whilst the conduct of the NSW Police Service was based upon Constable Trindall’s disability it was not based upon his race or ethnicity. His Aboriginality was irrelevant. His black African heritage was relevant but was not a conscious factor in the actions of the NSW Police Service. The Police acted as they did because Constable Trindall had the sickle cell trait, not because he was black.

What went wrong? 13

It is unfortunate that Dr Norris did not seek to discuss Dr Ling's certificate with him. He agreed that it was open for him to do so. However, he said that he followed a kind of "precautionary principle" which meant that he always followed medical opinion pointing to a health risk to which a serving police officer was exposed. If a medical certificate pointed to unfitness for duty he would always follow it without question. If a medical certificate pointed to fitness and he had reason to doubt it he would query it. The problem with this approach was that the formal restrictions were not compelled by the medial certificate of Dr Ling but were imposed by Dr Norris in the exercise of his own discretion and judgment. Two other Doctor’s (Lindeman and Presgrave) stated that they thought that it would be sensible for Constable Trindall to take precautions to avoid the risk of a sickling episode. Dr Lindeman thought that the risk of such a sickling episode arising was small.

Constable Trindall had made clear to Dr Norris that he was concerned about his condition but that he wanted to return to normal operational duties. Doctor Dr Norris knew that Constable Trindall could have been left on normal operational duties based upon the expert opinion of Dr Presgrave. He should have known that Dr Ling was not calling for new work restrictions but was merely supporting the then status quo. Constable Trindall disclosed his medical condition when he joined the police service and he had been cleared as fit for virtually all duties.

The only thing that had changed was that Constable Trindall had expressed concern about his brother’s death and his own risk exposure, which had stimulated the police service to call for further medical assessments.

The informal restrictions were a common sense approach which dealt amply with slight risk to which Constable Trindall was subject. Dr Norris said from the witness box that he thought the critical words in Dr Ling's certificate which necessitated formal restrictions were the words that Constable Trindall should avoid "domestic and other violent situations".

However, Dr Ling was simply repeating the terms of the informal restrictions already put in place by the superintendent in January 2001. Dr Norris believed (erroneously) that Dr Ling's use of those words meant that the informal restrictions that had been put in place could not be continued because a certificate had been received from a treating practitioner which pointed to unfitness to perform certain or all duties. However Dr Ling was simply confirming the terms of those informal restrictions.

What lessons can be learned from this case? 14

This case shows how significant problems can be caused by employers taking action to restrict employees’ duties because of a medical condition which is poorly understood and without giving proper thought to what restrictions are really needed. Actions by an employer, even if well meaning and taken for the protection of an employee, can disadvantage the employee and discriminate against him or her. The case also shows how inadequate communication between an employer and medical professionals, as well as between patients and medical professionals and between the medical professionals themselves can lead to events snowballing out of control when they could relatively easily and simply have been dealt with at an early stage.

Constable Trindall had been performing duties in the New South Wales Police Service with only one possible problem arising from his sickle cell trait during initial police training. He was concerned about his condition following the death of his brother and the police service was right to act upon his concerns. The initial restrictions imposed upon him were sensible and flexible response to the concerns expressed by Constable Trindall as a temporary holding measure until reliable medical opinion could be obtained.

What followed, however, was a combination of uncertainty, supposition and error. Dr Ling did not know enough about the condition to offer any reliable medical opinion himself. He needed specialist opinion to rely upon. It was sensible for Dr Ling to refer Constable Trindall to a specialist. The specialist report obtained from Dr Presgrave was equivocal. He found that Constable Trindall was fit for duty but that precautions needed to be taken. This was generally consistent with the flexible and informal restrictions that had been imposed upon Constable Trindall.

Dr Ling was then asked to confirm the appropriateness of the restrictions to which Constable Trindall had been made subject. Dr Ling reasonably assumed that he was being asked to comment on the appropriateness of the flexible and informal restrictions that had been imposed. He prepared a certificate that he thought expressed agreement with those restrictions. However, the PMO, Dr Norris, regarded Dr Ling’s certificate as going further than the opinion of Dr Presgrave and felt compelled by it to impose formal and inflexible work restrictions. He felt further compelled to make those restrictions permanent after a further report from Dr Lindeman0 did not alter the position.

Critically, although the PMO considered that the restrictions imposed upon Constable Trindall were unnecessary, he felt that it was not open to him to go behind the opinion of Dr Presgrave or the certificate of Dr Ling. He felt he was acting on their advice but the Court found he went beyond it.

The key lesson to be learnt here is not to act blindly upon the judgements of others that one regards as suspect, particularly when one is in a position to offer a reliable assessment oneself. Some effective communication between the PMO, Dr Ling and Dr Presgrave would have avoided the situation spinning out of control to a point where Constable Trindall came close to losing his job for reasons of invalidity. In fact, as was ultimately established by the report of Professor Mark Hertzberg, Constable Trindall was able to perform all of his duties without restrictions.

* Rolf Driver, FM, Federal Magistrates' Court of Australia.

1 Powerpoint, slides 2-4

2 Trindall v New South Wales Commissioner for Police [2005] FMCA 2. I am indebted to my associates Michelle Cohen and Rebecca Chen for their research and administrative support in the preparation of this paper.

3 Powerpoint, slides 8-24

4 Powerpoint, slides 5-7

5 Section 15(2), DDA:
It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.

6 Section 5(1), DDA:
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

7 Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at [55]

8 Powerpoint, slide 26

9 Powerpoint, slide 27

10 Powerpoint, slides 25-36

11 Forbes v Australian Federal Police [2003] FCAFC 95 at [63]

12 Section 6, DDA
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or
are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.

13 Powerpoint, slide 37

14 Powerpoint, slides 38-41

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The Greek Conference - Mykonos, September 2005 Papers

THE UNEXPECTED IMPACT OF A MEDICAL TRAIT