Victorian Civil and Administrative Tribunal|1999-04-23

Hall Matthew v Victorian Amateur Football Association [1999] VCAT 627 (23 April 1999)

VICTORIAN AMATEUR FOOTBALL ASSOCIATION (Respondent)

The applicant in this proceeding, Matthew Hall ("Hall") was diagnosed in January 1996 as being HIV Positive. In February 1997 he commenced consultations with Dr Darren Russell, a general practitioner who specialises in treating HIV Positive patients. Dr Russell placed Hall on anti-retroviral medication in March 1997. Since that time regular blood tests have revealed that Hall's immune system is functioning well. His "viral load", a measure of the amount of replicating virus in the blood stream, has been less than 500 copies per ml. of serum since he commenced such medication. Hall is fit and were it not for the fact that blood tests reveal he is HIV Positive he would otherwise be said to be in extremely good health.

Hall played Australian Rules Football at school and after leaving school he played with the Old Ivanhoe Grammarians Football Club ("the Club") between 1989 and 1994. He travelled overseas during 1995 and did not play football that year. His HIV Positive status, about which he learnt in early 1996, deterred him from playing football during 1996 and 1997, not because he was unwell, but because he believed that he might be a risk to others if he played football. However, over a period of time he became more knowledgable about the consequences of being HIV Positive and in early 1998 formed the opinion that the risk of anyone else being infected with HIV by reason of him playing football was so remote as to be of no significance. Accordingly, he commenced football training with the Club at the commencement of the 1998 season. Hall approached the President of the Club about becoming registered with the Victorian Amateur Football Association ("the VAFA') so as to permit him to play for the Club in the competition conducted by the VAFA.

Hall discussed the question of being HIV Positive with the President of the Club who, with Hall's consent, wrote the following words on the application form: "Please note that this player is HIV Positive".

The application form, dated 14 April 1998, was duly lodged with the VAFA. On 2 June 1998 the VAFA advised Hall that his application had been rejected due to his HIV status. On 10 June 1998 Hall lodged a complaint with the Equal Opportunity Commission. On 26 July 1998 the Executive of the VAFA met and passed the following resolution

"That Mr Hall's application for registration be refused on the ground that the rejection is necessary in order to protect the health and safety of other registered players engaged in the competition conducted by the Association".

On 10 August 1998 Hall's complaint to the Equal Opportunity Commission was referred to this Tribunal. By Particulars of Claim dated 11 August 1998 Hall seeks a determination that the VAFA has discriminated against him and claims consequential relief. He alleges that the VAFA has discriminated against him in breach of s.59 of the Equal Opportunity Act 1995 ("the Act). He alleges further that the VAFA has discriminated against him in breach of s.65 of the Act. Section 65 of the Act provides:

A person must not discriminate against another person -

a) by refusing or failing to select the other person in a sporting team;

b) by excluding the other person from participating in a sporting activity"

In the course of his opening address Senior Counsel for Hall, Mr Rush QC, stated that Hall asserts that such discrimination was "direct discrimination" within the meaning of s.8 of the Act. Hall does not assert that the discrimination he alleges was indirect within the meaning of s.9 of the Act. Although at the commencement of the hearing Hall claimed that s.59 of the Act which relates to discrimination against applicants for membership of a club had been breached by the VAFA, that claim was subsequently abandoned.

The VAFA concedes that the decision by it not to register Hall was direct discrimination, on the ground of impairment, within the meaning of s.65 of the Act. However, it submits that such discrimination is reasonably necessary within the meaning of Section 80 of the Act, to protect the health and safety of other members of the VAFA.

Section 80(1) of the Equal Opportunity Act 1995 provides-

"80. Protection of health, safety and property

(1) A person may discriminate against another person on the basis of impairment or physical features if the discrimination is reasonably necessary-

(a) to protect the health or safety of any person (including the person discriminated against) ... ;"

Section 80 is included in Part 4 of the Act which is headed "General exceptions to and exemptions from the prohibition of discrimination." Section 12 of the Act explains the effect of exceptions such as the one in s.80. If an exception applies to conduct, that conduct is not prohibited by Part 3 of the Act. It is common ground that the onus of proving that s.80(1) applies to the respondent's conduct in this case is on the respondent (see also explanatory memorandum to Clause 12 of the Equal Opportunity Bill 1995; Ellis & Ors v Mount Scopus Memorial College (1961) EOC 92-824; Colyer v State of Victoria, VSCA (unreported), 12 September 1997).

The Tribunal is not aware of any case in which s80 has been considered in detail. In their submissions, counsel for the parties referred the Tribunal to a number of cases in which the words "reasonably necessary" had been considered, but in each case the words "reasonably necessary" had been considered in a legislative context quite different from the Equal Opportunity Act 1995. For example, the Tribunal was referred to cases concerning Federal Income Tax legislation in which it was held that expenses reasonably adapted or appropriate for a particular purpose were expenses "necessarily" incurred for that purpose (Commonwealth and Post Master General v Progress Advertising and Press Agency Code Pty Ltd [1910] HCA 28; [1910] 10 CLR 457; Ronpibon Tin (NL) v SCT [1949] HCA 15; [1949] 78 CLR 47). The Tribunal was referred also to Tiong v Minister for Community Services and Health [1990] 93 ALR 308 at 315 (per Davies J) and at 318 (per Spender J) in which, in the context of determining what were excessive services (services "not reasonably necessary" for the adequate care of the patient) for the purposes of the Federal Health Insurance Act 1973, the court suggested that "reasonably necessary" meant "reasonably appropriate in the circumstances".

Words used in one legislative context do not necessarily have the same meaning when used in another. We prefer here to look at the words "reasonably necessary" used in the context of s.80, and the broader context of the Act itself. Counsel for the complainant submits that we should take into account the beneficial nature of Equal Opportunity legislation, and the express objectives of the Act to eliminate discrimination as far as possible and provide redress to the victim of discrimination. In the light of the nature and objectives of this legislation, we should construe the exception in s.80(1) narrowly (Waters v Public Transport Corporation [1991] HCA 49; [1991] 103 ALR 513).

The better approach is, we think, to interpret s.80(1) according to its purpose and according to the nature and ordinary meaning of its words. It is clear from s.12 of the Act that Parliament did not intend to prohibit conduct to which the exception provision applies. In its terms, s.80(1) authorises discrimination in certain circumstances. It is better to determine what those circumstances are from the words of the section itself rather than to attempt to force it into some narrow interpretation which it may not be capable of bearing.

There are significant differences in the way in which each of the exception provisions in Part 4 is expressed. Section 80(1)(a) allows a person to discriminate on the ground of impairment if this is "reasonably necessary" to protect the health or safety of any person. Section 73(1)(d) allows a person to discriminate on the basis of age by imposing conditions in relation to a superannuation fund if the discrimination is "reasonable" having regard to any relevant factors. Section 75(2)(b) provides that nothing in Part 3 (which contains the prohibitions on discrimination) applies to anything done by a body established for religious purposes, if the action taken is "necessary" to avoid injury to the religious sensitivities of people of that religion. In our view, these differences in wording are not accidental. What is "reasonably necessary" is different from what is "necessary' and also from what is "reasonable". We do not take the view that the term "reasonably necessary" is meaningless, because the action is either necessary or it is not (as to this view, see re Naylor Benzon Mining Co. Ltd [1950] CH 567 at 575 (per Wynn-Parry J). We must attempt to give meaning to the words used.

We prefer not to substitute other words for the words used by Parliament. For s.80(1)(a) to apply, the conduct (here, the refusal to register Mr Hall and so to permit him to play football) must, in all the circumstances, be reasonably necessary (that is, on a reasonable judgment) to protect the health and safety of the class which the ban is designed to protect. The test is not an absolute test. The ban need not be necessary in absolute terms, but must, on a reasonable judgment, be necessary for the specified purpose. Parliament has not used the words "reasonable" or "desirable" for the specified purpose. It has used the words "reasonably necessary". The test is an objective one (compare NC & Ors v QLD Corrective Services Commission [1998] EOC 92-940 at p78, 260). The belief of the person who seeks to rely on s.80(1), at the time when the relevant conduct took place, as to whether or not the conduct was reasonably necessary for the specified purpose, and the enquires (if any) reasonably made by that person and the information reasonably available to that person about whether or not the conduct was reasonably necessary for that purpose, are also relevant. It is not enough if the respondent believes the ban is necessary for the specified purpose if the ban is not, on a reasonable judgment, necessary for that purpose.

In determining whether or not s.80(1)(a) applies, all the circumstances of the case are relevant. In this case, the relevant factors can be set out as a series of questions as follows -

(1) What is the class whose health and safety are to be protected? What is the size of that

(2) What is the risk from which that class is being protected? What is the magnitude of that risk? What are the consequences to the class to be protected if the risk becomes reality?

(3) To what degree will the ban protect the health and safety of the class? Will it eliminate or reduce the risk to the health and safety of that class?

(4) Does the ban contain within itself any risk to the health and safety of the class?

(5) Are there measures currently in place to protect the health and safety of the class from that risk? Are they effective to protect the health and safety of that class from that risk?

Will the ban give that class a protection from that risk of a kind or degree that those current measures do not give?

(6) Are there non-discriminatory alternatives that will give the class protection from the risk that is equal to or better than the ban? If there are, is there any reason why it may be impracticable for the respondent to adopt these alternatives?

(7) Did the respondent, at the time of the ban, believe that the ban was reasonably necessary to protect the health and safety of the class? On what information or enquiries was this belief based? What information on the matter was reasonably available to the respondent?

These factors must be balanced against each other to arrive at a decision of whether or not, in all the circumstances, the ban is reasonably necessary to protect the health and safety of the class.

Before turning to all the factors enumerated by us as requiring determination, it is appropriate by reason of the importance of determining the magnitude of the risk that permitting Hall to play football will create, to summarize briefly the epidemiological evidence given in the case before us.

Epidemiological Evidence on Human Immmunodeficiency Virus (HIV)

The risk of transmission of HIV is a key element in determining if discrimination against Matthew Hall is reasonably necessary to protect the health and safety of any person.

Dr Andrew Grulich, an epidemiologist, gave evidence before us. We accept that he is a highly qualified expert in the field of epidemiology and in particular in HIV Epidemiology.

He said that HIV is a virus that may be transmitted through mucous membranes and percutaneous or non intact skin contact with infectious body fluids such as blood, semen and vaginal secretions. The likelihood of infection depends on the amount of virus in the infective fluid, the amount of fluid involved in the infection incident and the portal of entry to the recipient.

In the context of Australian Rules football transmission would require a bleeding injury to be sustained by an HIV infected player and for the infectious blood to come into contact with another person's mucous membranes (mouth, eyes) or non intact skin. Infection risk is higher if the non intact skin is lacerated rather than abraded.

Evidence relating to the risk of HIV infection in the game of Australian Rules football was provided by Dr Grulich and by Mr Cumpston, an actuary, who gave evidence on behalf of the VAFA, using the same method but different assumptions. The risk was calculated per player per game as the product of the probability of a player being infected by the rate of bleeding episodes where transmission is possible (by percutaneous or mucous membrane) by the estimated rate of infection after such an exposure.

Dr Grulich estimated the prevalence rate of HIV amongst amateur association players to be 2 per thousand based on data that this is the rate in males aged 15-35 (See Exhibit G). Accepting the evidence that there are 10000 players in the amateur association this would mean that there are 20 players with HIV. Using different but equally valid data (see Exhibit 9) Mr Cumpston calculated the possible number of HIV infected players in the amateur association to be 27 based on a prevalence rate of .0027 in 10000 players. Dr Peter Stanley, a physician who specializes in infectious diseases, gave evidence that it is possible, but in his opinion not likely, that there are 20 such infected members of the amateur association playing football. In a game where one of the players is known to be infected with HIV the risk of other players in the game coming into contact with a player infected with HIV is increased. Mr Cumpston calculated a twelve-fold increase in risk of a contact being with an HIV infected player. This calculation of conditional probability assumed that the prevalence rate of HIV infected players was .0027 (ie 27 players in 10,000) and that there were 35 players with an average probability of being infected and one player was known to be HIV infected.

There is some data that makes it possible to estimate the rate of bleeding injuries in Australian Rules football. In the only scientific study of bleeding incidents in Australian Rules football by Seward, (see Exhibit 9) the frequency of bleeding injuries was found to be 0.008 bleeds per player per game or 8 bleeding injuries per 1000 games. A player would need to play 125 games for a bleeding injury to occur. The author of this study acknowledged that the bleeding rate was likely to have been underestimated because of unreported bleeding injuries such as trivial abrasions, and the fact that the only bleeding injuries counted were those reported to the medical staff.

In the National Football League of the United States, a study by Lawrence et. al. (see Exhibit N) ("the NFL Study") was undertaken to determine the risk of bleeding injuries and to estimate the risk of HIV transmission. The number of bleeding players was found to average 3.46 per game.

Reliable epidemiological data exists for occupational risk of contracting HIV in health care settings. The risk of contracting HIV by percutaneous exposure to infected blood is estimated to be 1 in 300 exposures. (Exhibits 3 and G). The risk of transmission through mucous membrane is estimated to be approximately 1 in 1000 and less than 1 in 1000 for non intact skin. Risk estimates are averages and in individual exposure incidents the actual risk will be determined by such things as the volume of blood involved, degree of trauma and the quantity of virus (viral load) in the body fluid (Exhibit 3).

Dr Grulich calculated the risk of HIV infection per player per game to be 0.8 per 100,000,000 or 1 in 125,000,000 games. In this calculation he assumed that the prevalence rate of HIV infected amateur footballers was 2 per thousand. He assumed that the rate of bleeding injuries that could be expected to result in exposure of blood to mucous membrane or percutaneously was 25% of the bleeding rate in Australian Rules Football ie. 25% of .008. There is no epidemiological basis for this assumption as no observations of this occurrence have been recorded. A further assumption was that the risk of transmission after such an exposure was mid way between percutaneous and mucous membrane exposure in the occupational setting ie. 2 per thousand.

In the course of cross examination of Dr Grulich the point was made that the data used for the calculation of risk did not take account of all bleeding incidents. In response Dr Grulich stated that the appropriate injuries for the purpose of identifying HIV transmission risk were counted. The assumption that if the rate of bleeding incidents was 3.3 per game then the risk would be 10 times greater or approximately 1 in 12 million games.

Dr Mijch, a physician who is the head of the Alfred Hospital HIV AIDS services, stated that the calculation of risk was undertaken using data from the NFL study (Exhibit N). This study estimated the risk of transmission of HIV to each player was 1 per 85 million game contacts where the prevalence rate of HIV infection is assumed to be the same as in the general community. Using an assumption that a player has 70 contacts per game the risk for that player is 1.2 million per game. Using the evidence that if a known HIV infected player is participating in the game the risk of contact with an HIV infected person increases 12 fold (this was based on 36 players in an Australian Rules football game with one player infected with HIV and an assumed prevalence of HIV.027) then the risk for a player becomes 1 in 100,000 per game. If a player plays 20 games per year then the risk increases to approximately 1 in 6000. Dr Mijch stated that the statistics may be used to derive a risk but the available data says that HIV infection does not occur in football.

In giving his evidence Dr Stanley used the NFL study to calculate risk. He assumed that there were 85 contacts per game which result in a risk per game of 1 in a million. If one player is known to be HIV positive then the prevalence rate in that game is 1 in 45 or 5 times greater than the 1 in 200 prevalence based on community rate of HIV infection. This increases the risk to 1 in 200000 per game. In a season of 20 games the risk becomes 1 in 10000 transmissions per season. Dr Stanley stated that this statistical calculation was flawed and should not be accepted as scientifically factual.

The calculation of statistical risk cannot be divorced from other evidence before us that there is no clearly established case of transmission of HIV occurring in consequence of playing any code of football anywhere in the world.

The only known case of possible HIV transmission in sport was reported in the Lancet by letter from Dr D Torre et al, in 1990 (Exhibit 6). We note that in the letter to the Lancet referred to above Dr D Torre and others suggested that a case of HIV infection had been diagnosed in a recreational soccer player. However Public Health officials in Italy who received the available data could not satisfactorily rule out non-athletic risk factors for the man infected, nor could they definitely establish athletic activity as the source of infection. Subsequent correspondence to the Lancet also questioned the validity of the evidence of this case as a true case of HIV transmission due to sporting contact. Mr Cumpston gave evidence that he had been in touch with Dr Torre in September 1998 and provided Dr Torre's e-mail address to the solicitors for the VAFA. No further material relating to the incident was put before us and accordingly we accept the evidence given before us by Dr Grulich, Dr Mijch and Professor Dwyer that the Italian soccer incident is not a clearly established case of HIV transmission.

There has been no other documented instance of transmission of HIV in any contact sport, such as football. Statistical evidence predicting the number of players that would be expected to be infected, assuming a given risk of infection per player per game and per player per season and that there is a player involved in the game who is infected was put before us (Exhibit FF). This evidence supports a view that the calculated risk is much greater than the real risk.

The epidemiological data is not particularly useful in estimating the risk of transmission of HIV virus in Australian Rules Football because there are no actual cases on which to base risk estimate calculations.

We turn now to the factors we have enumerated as necessary to determine whether or not s.80(1)(a) applies.

1. What is the class whose health and safety are to be protected and what is the size of that class?

On the second day of the hearing the Respondent filed amended particulars of defence which asserted that the relevant class of persons to be protected were the "players and officials registered to play in the B Grade competition (Seniors and Reserves) conducted by the Respondent."

The precise class of persons the Respondent claims it to be necessary to be protected appeared to us to vary throughout the hearing. However, as we understand the final position of the Respondent the relevant class is such members of the VAFA who as players or as on-field officials may come into contact with Matthew Hall in the course of him playing or training football. In its written summary of submissions the Respondent stated that the class is "players and officials who would have engaged in games in which Mr Hall was engaged had the permit not been refused." Accordingly, it is not possible to estimate accurately the size of the class, although potentially it may be approximately 45 people per game played by Matthew Hall in the future, whether or not such games are in A grade, B grade, C grade or in the so called 'Warriors'. In addition the class includes such persons as those with whom Matthew Hall may come into contact in the course of training sessions. Some members of the class, such as members of his own team will have frequent contact with him whilst others may have minimal or no contact with him in the course of such games.

The consequences of contracting HIV, notwithstanding the evidence before us of the benefits of current anti-retroviral therapy, are however, such that successful transmission results in a serious and life-threatening illness. Accordingly the consequences of successful transmission are such that what is "reasonably necessary" within the meaning of s.80(1) might be quite different from what is reasonably necessary to protect a class from an event with less dire consequence than that of transmission of HIV.

In this case whilst the magnitude of the risk is in any view of the evidence low, the consequences of transmission are of considerable magnitude.

2. What is the risk from which that class is being protected, its magnitude and the consequences of not providing protection?

The risk is the successful transmission of the virus and consequent infection of the recipient through contact with Matthew Hall in the course of playing football either in training or competition.

Whilst there is (based on the evidence before us) a statistical risk of such successful transmission the epidemiological evidence does not provide any precise or even approximate quantification of the magnitude of such risk in the defined class. The state of the evidence is not such that the epidemiological evidence can be applied in a meaningful or precise way to the class of persons we have defined as being at risk.

For example the evidence before us put the range of statistical risk of transmission per player per game as being between 1:10,000 to 1:125,000,000. The figure of 1:125,000,000 assumed that the HIV status of players in the VAFA was equivalent to that of the general population and the 1:10,000 figure assumed that one player in the VAFA was known to be HIV positive. Dr Grulich agreed that if there were only 6,000 members of the VAFA actually playing on a weekend then the lower figure would be 1:6000 per game per player. There is no evidence before us as to the risk to anyone else at training or of the risk to any official.

3. To what degree will the ban protect the health and safety of the class and will it eliminate or reduce the risk to the health and safety?

If Matthew Hall is banned from training and playing football the risk that he will be the cause of transmission of HIV to any other player or official will be eliminated.

Notwithstanding the removal of Matthew Hall from the equation, the class of persons who were at risk by reason of exposure to Matthew Hall, will still remain at risk of exposure to any person other than Matthew Hall who, unknown to them, suffers HIV.

To return to the epidemiology this risk to the class will remain at something between 1:6,000 and 1:125,000,000 irrespective of whether or not Matthew Hall is banned.

4. Does the ban contain within itself any risk to the health and safety of the class?

There was much evidence placed before us as to the possible consequences to health and safety of the class from the banning of Matthew Hall. This evidence was related to an argument that people who suspected they were HIV positive would be deterred by such a ban, from seeking assessment or treatment.

It was argued further that insofar as members of the class are also members of the wider community, that such ban would invoke general ostracism of HIV sufferers. It was argued further that the VAFA would not take other measures, such as the blood rule, seriously, because of a belief that the ban upon Matthew Hall would provide sufficient protection.

In our view, the evidence relating to these matters, such as it was evidence, was of a highly speculative nature and not of substantial assistance in the determination of the issues before us. We are unable to conclude that any ban on Matthew Hall playing football will in itself create any substantial risk to the health and safety of the class of person within consideration.

5. Are there measures currently in place to protect the health and safety of the class from that risk?

The VAFA has an infectious diseases policy which was adopted by it in August 1992. In the minutes of the VAFA Executive Committee dated 3 August 1992 are the following words:

P. Rowell announced the launch of this policy and explained - implications to Amateur football - minimal yet careful attention needed in regards to biting, spitting, cuts and abrasians, team changing and showering areas. Umpires to be spoken to; clubs to receive a letter from Executive Chairman and a P. Stevens "Editorial" in "Amateur Footballer".

This policy was published in "The Amateur Footballer", the official journal of the Victorian Amateur Football Association, on 29 August 1992. It stated as follows:

At the Executive meeting on 10 August an Infectious Diseases policy for the Association was adopted. The Association was acutely aware of community concern regarding the dangers of transmission of infectious diseases, particularly HIV (AIDS) and Hepatitis B. The Association accordingly consulted a specialist infectious diseases physician, Dr Peter Stanley, who also happens to be a former amateur footballer and thus has an understanding of amateur football to develop ...... both effective and practical. The policy adopted is as follows:

INTRODUCTION: This policy is to take immediate effect for all games administered by the VAFA. The policy is based to a significant degree upon the infectious diseases policy published by the Australian Sports Medicine Federation Limited, 2nd edition, revised and reprinted August 1991 but adapted specifically to the perceived needs of amateur football.

A number of blood borne infectious diseases can be transmitted during body contact and collision sports. The more serious include HEPATITIS and HIV (AIDS) infections. These diseases may be spread by contact between broken skin or mucous membranes, e.g the eye and the inside of the mouth and infected blood or saliva contaminated by blood ...... It should be stressed at this point that the risk factor of transmission of such infections is very low but having regard to the potential outcomes of such infections the Association believes it must take reasonable steps to minimize that risk. N.B. There is no evidence that sweat/urine and tears will transmit Hepatitis B or HIV.

(a) All wounds resulting in blood loss shall be covered by a clean dressing.

(b) Where bleeding is continuing and is not controlled by a dressing the player shall leave the field, voluntarily or by direction of a blood umpire, until the bleeding is controlled and the wound is properly dressed.

(c) The dressing of wounds must be clean and not blood-soaked. Where dressings are blood-soaked the player shall leave the field, voluntarily or by direction of a field umpire, until the wound is covered by a clean dressing.

(d) Where clothing is contaminated by blood e.g. jumpers or shorts, it must be replaced prior to the player being allowed to resume play. The player may be directed by a field umpire to leave the field until the clothing is replaced.

(e) If bleeding cannot be controlled and the wounds securely covered, the player shall not be permitted to continue in the game.

1. It is the Club's responsibility to ensure that the dressing rooms be clean and tidy. Particular attention should be paid to handbasins, toilets and showers. Adequate soap, paper hand towels, brooms, refuse disposal bins and disinfectants must be available at all times.

2. All clothing, equipment and surfaces contaminated by blood must be treated as potentially infectious and treated accordingly.

3. Plastic bags ought to be available to dispose of potentially contaminated clothing and dressings.

4. At training sessions all open cuts and wounds must be treated immediately and covered with clean dressings.

5. It is preferable that there be no sharing of towels, face washers and drink containers.

C Players, Umpires and Officials' Personal Protection

It is the responsibility of all players, umpires and officials to maintain strict personal hygiene as this is the best method of controlling a spread of infectious diseases.

1. It is strongly recommended that all players, umpires and officials be vaccinated against Hepatitis B. This involves a series of three injections over a period of six months.

2. All players, umpires or officials with prior evidence of these diseases are strongly advised to maintain confidential advice and clearance from a doctor prior to participation or involvement.

3. Clubs should supply disposable gloves for use by their training staff on match days and at training sessions.

4. In the event that medication is administered to players by injection there must be no sharing of needles.

This policy has been prepared in consultation with Dr Peter Stanley, a consultant infectious diseases physician who is a visiting consultant to Fairfield Hospital, St Vincents Hospital for Women. Dr Stanley has a working knowledge of the amateur code, having played amateur football for a number of years. The policy will be reviewed from time to time as required in consultation with Dr Stanley."

It should be noted that the "Laws of Australian Football 1998" being the laws of Australian Football applicable to bodies affiliated to the Australian Football League (which include the VAFA) states its infectious diseases policy as follows:

"The policies of the Australian Sports Medicine Federation should apply at all matches played under these laws, except where a controlling body has adopted its own specific policy."

Accordingly, at all material times since August 1992 the above VAFA Infectious Diseases Policy has applied to matches played by the VAFA.

We are not satisfied by the evidence that this policy has been consistently and rigorously applied by the VAFA. Indeed the VAFA did not produce the policy in full to us until almost the end of its case. The plaintiff's medical witnesses did not have the opportunity to specifically give their opinion as to whether or not it was completely appropriate. However, although no scientific studies were put before us to prove the fact, we are satisfied on the evidence before us that consistent and rigorous application of the existing policy would reduce the risk of HIV transmission from Matthew Hall to the class in question.

We note that Professor Dwyer gave evidence that the National Rugby League competition code was reasonable and consistent with advice given by world authorities. Dr Grulich gave evidence that the first-aid measures adopted by the American Sports Medicine Association (Exhibit K) are appropriate precautions. Those recommended precautions are similar to the policy adopted by VAFA in 1993.

Dr Grulich said that the role of similar such precautions was to reduce to an absolute minimum the risk of transmission of HIV and other blood-borne diseases. Dr Stanley agreed that such precautions can reduce the possibility of transmission although he was at pains to point out that the risk would not be eliminated by them.

We note that the National Rugby League has adopted as its HIV policy the World Health Organization Consensus Statement dated 16 January 1989 (See Exhibit 4) and that the International Rugby Board has adopted a policy that is very similar to that of the VAFA (See Exhibit M).

Although there is no precise evidence to the effect that the use of such precautions will reduce further the already very low risk of transmission of HIV, we consider that it is logical to say that such precautions are designed to lessen the occasions on which contact between the blood of a possibly HIV infected person and the blood of a non-infected person is likely to occur.

It is accordingly logical to conclude that the use of such measures will further reduce the risk.

The consistent and rigorous application of this policy is important to reduce the risk to the class of not only HIV, but also of the more prevalent and more easily transmitted diseases of Hepatitis C. The policy if applied properly will give increased protection to the class irrespective of any ban on Matthew Hall. Save that the banning of Matthew Hall will exclude the risk of transmission from him, the banning of him will not give the class in question any increased protection from other players who might be HIV positive. On the contrary, the proper application of the policy will give the class in question increased protection from such other players. From this viewpoint, it is logical to conclude that the proper application of the VAFA's policy gives the class a protection from risk that the mere banning of Matthew Hall does not.

6. Are there non-discriminatory alternatives that give the class protection from the risk that is equal to or better than the banning of Matthew Hall?

As stated above, we conclude that the proper application of the present VAFA policy gives protection to the class which the banning of Matthew Hall alone does not:

However it was argued on behalf of the VAFA that there were practical difficulties in permitting Matthew Hall to play football. These difficulties were such that it was not reasonable to do so.

Mr Peter Nash, the managing director of an insurance underwriting agency, who provide a master policy covering public liability, professional indemnity and accident insurance risks for clubs who are members of the VAFA, gave evidence before us. Mr Nash asserted that should the ultimate decision be that HIV positives should be given a permit to play, his underwriting agency would require the VAFA to have all clubs take:

"all reasonable measures to avoid the spread of this disease including but not limited to the following:

(1) Four qualified trainers to be on the ground at all matches;

(2) A complete set of spare jumpers per team so that each player can change a jumper if required plus four extra jumpers without numbers for multiple situations of blood loss;

(3) All umpires, trainers and other personnel associated with the player must be provided with disposable plastic gloves;

(4) Suitable infection control containers for the appropriate treatment of blood-stained jumpers, towels, bandages and other items of clothing to be in each game;

(5) Each player will be required to have a spare pair of socks and one spare pair of shorts each game;

(6) Each player will be required to attend a course conducted by the League highlighting the dangers of blood contact and proper methods of control; and

(7) A vehicle suitable to convey a haemorrhaging HIV positive player to hospital must be in attendance at all games in which an HIV player participates."

We do not accept that all of the consequences to which Mr Nash referred would, in fact, be necessary should it be that HIV positive players should be given a permit to play in the VAFA. First, it became apparent in the course of cross-examination, that Mr Nash had never consulted with any specialist in infectious disease when he prepared what he called were the necessary "risk management procedures required". No consultation had been had with him with any actuary. Furthermore, and importantly it is apparent that Mr Nash had no knowledge at all of the VAFA "Infectious Diseases Policy".

We note that Dr Stanley, who also gave evidence on behalf of the VAFA, said in relation to the suggestion that four qualified trainers were required to be on the ground at all matches "I think the important thing is to have at least somebody there who knows what they're doing. Maybe one." Professor Dwyer gave evidence that this requirement was "grossly unreasonable".

As to the proposal that a complete set of spare jumpers per team plus four extra jumpers was necessary, Dr Stanley said, "I think that's a bit excessive. I did notice ... that in one of the other player's submissions he said that he always took along a spare jumper and a spare pair of pants. So I suppose if you take that view, that's not unreasonable nowadays. If the player can't provide it then I suppose the Club might have to." He said further "I mean, I would have thought the amateurs might say `Look fellows, why don't you bring along your own spare'. In the event that they don't do that of habit, I don't think you need a whole set. I think a couple of spare jumpers with odd numbers on them should be available, would be enough, I think and pants and socks, just a couple of changes, I think." Professor Dwyer regarded this proposal as "absurd". He did regard it as necessary and appropriate for any bloodstained clothes or bandages to be placed in a separate container.

Dr Stanley agreed with Mr Nash that umpires, trainers and other personnel associated with the player must be provided with disposable plastic gloves. Likewise Professor Dwyer agreed this was reasonable but pointed out that this was an appropriate requirement for virtually all first aid emergencies in sport. We note that this issue forms part of the VAFA "Infectious Diseases Policy". Likewise, Dr Stanley agreed that it was appropriate that players be required to attend courses conducted by the League highlighting the dangers of blood contact and proper methods of control. He said that it was important that players are provided with the VAFA policy and that education and communication of the policy was important. As to the assertion by Mr Nash that a vehicle suitable to convey a haemorrhaging HIV positive player to hospital must be in attendance at all games, Dr Stanley said "I think that's a bit - I don't - I wouldn't agree with that. I think that more importantly, if there was known to be an HIV positive player playing, that in the event that he is the source of an action to another player, it should be known by all, and that there should be - it could be facilitated that the person who has had the accident should be taken to hospital by somebody to obtain anti-retroviral drugs, but have somebody - no, I don't think that a vehicle should be standing by specifically for that." He said further "I think any vehicle is suitable for transmitting a patient who is bleeding from HIV."

In our view the medical evidence in this case is such that what is required is for the VAFA to enforce its own infectious diseases policy and for members of the VAFA to comply with such a policy. The medical evidence, including that of Dr Stanley does not suggest that precautions of any higher standard than those contained in the present policy are either necessary or appropriate. We accept the medical evidence relating to the appropriate precautions in preference to the evidence of Mr Nash. We do not regard such precautions as impractical for the VAFA.

7. Did the Respondent, at the time of the ban, believe that the ban was reasonably necessary to protect the health and safety of the class.

The VAFA had conflicting medical advice. It heard evidence from Dr Russell and obtained a report from Dr Stanley. With the exception of the failure to give any detailed conclusion of their own policy we conclude that the VAFA had a genuine belief that the ban was reasonably necessary and that such belief was based on information reasonably obtained by it.

The issue is a different issue of balance and the evidence before us demonstrates the variance in opinion of respected expert members of the medical profession. We have not found the task before us easy, and do not conclude that the VAFA's approach to this issue was inappropriate in the circumstances then pertaining and in the light of the evidence before them.

We return to the balancing task of whether or not in all the circumstances the ban is reasonably necessary to protect the health and safety of those players registered with the VAFA and officials who may come into contact with Matthew Hall.

Whilst we conclude that not all risk to the health and safety of the class in question from transmission of HIV from Matthew Hall to other players can be excluded if Matthew Hall is permitted to play football, the risk is so low (and can be further reduced by the proper application of VAFA policy,) that it is not "reasonably necessary" to discriminate against him by banning him from playing football.

In our view the health and safety of the class in question is better protected by an understanding of the nature of the very low risk and by an understanding of and the implementation of the proper procedures to be taken in further reducing such risk, than by banning Hall. The Respondent has not satisfied us that s.80(1) applies in the circumstances of this case. Accordingly we find the VAFA contravened s.65(b) in that it discriminated against Matthew Hall by excluding him from participating in amateur football.

We reserve for further submission at an appropriate time the orders which might flow from our finding in this case.

I certify that this and the preceding twenty-four pages are a true and correct copy of the reasons for decision of the Honourable Justice Kellam, President of the Victorian Civil and Administrative Tribunal and Deputy President, Ms McKenzie and member Dr R. Scholes.

Anti-Discrimination - Applicant diagnosed as HIV Positive - Discrimination in sport - Whether reasonably necessary to ban from playing football in order to protect the health and safety of other players and officials - Equal Opportunity Act 1995 ss.65, 80(1)

RESPONDENT: Victorian Amateur Football Association

BEFORE: Justice Kellam, Deputy President McKenzie and Dr R. Scholes

DATES OF HEARING: 31 August 1998, 1, 2, 3 September 1998,

DECISION: 1. That the Respondent contravened s.65(b) of the Equal Opportunity Act 1995 in that it discriminated against Matthew Hall by excluding him from participating in amateur football.

For the Applicant: Mr Rush QC and Mr E White of Counsel

For the Respondent: Mr R Tracey QC and Mr Green of Counsel

Opportunity Act 1995

Hall Matthew v Victorian Amateur Football Association [1999] VCAT 627

At a glance

Court

Decision date

Source

Judgment (136 paragraphs)

Hall Matthew v Victorian Amateur Football Association [1999] VCAT 627 (23 April 1999)

Parties

Legislation Cited (2)