Summary - Student lost legal case involving
discrimination in sitting for her exams and ordered to pay
Ms Wong achieved fifth place in the state in her HSC chemistry
exam when she sat that exam one year early, while still a year 11
student. Upon the completion of year 12 she obtained a university
entry rank of 99.95 and gained entry into a combined Science and
Medicine degree at the University of Sydney.
So why were complaints and legal proceedings brought by Ms Wong
against her school and the Board of Studies?
Ms Wong alleged she had been discriminated against on the ground
of disability, that reasonable accommodation had not been provided
and that had such accommodation been provided, she would have
achieved higher marks than what she achieved.
Ms Wong alleged:
That she had a joint hyper-mobility of the wrist and hand which
caused her to fatigue and cramp in written examinations affecting
her ability to write.
That a reasonable accommodation was to allow her the use of a
computer and/or extra time during exams.
That the failure to provide her that accommodation resulted in
her being unable to entirely finish the exams, preventing her from
achieving much higher marks.
Response to allegations
The school and the Board of Studies responded:
They had already accepted an application for special
consideration in relation to Ms Wong's wrist condition.
Reasonable accommodation was already provided including the use
of rest breaks during the exam. The use of a writer was also
offered, however Ms Wong declined this option.
No need to prove loss or damage
In relation to point 3 of the allegations, it is not necessary
to examine whether Ms Wong suffered some loss or damage as a result
of the alleged failure to provide reasonable accommodation. Why?
Because a common misconception, shared by Ms Wong in this instance,
is that a negative result/outcome/damage needs to be included in a
claim. In fact the damage is being subjected to discriminatory
conduct regardless of what may occur after that conduct.
Having said that, the above misconception is not fatal to a
claim, but could expose a party to an order for costs in respect of
spending time and resources on irrelevant issues and material.
Result / Decision
Ms Wong failed to establish her claim of discrimination. Her
case was dismissed and she was ordered to pay costs of the Board of
Studies. Ms Wong failed to establish that without the use of a
computer, the accommodation provided was insufficient to enable her
to perform to her ability in the same way a person not suffering
from her condition could perform to their ability.
Consider individual circumstances on their merits.
In that process include relevant considerations and exclude
Make accommodation which is reasonable in the
Include only relevant issues and material in legal proceedings
to protect yourself in relation to orders for costs.
The biggest lesson – if you are unsure about the above
issues or lessons, seek legal advice.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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