FEDERAL COURT OF AUSTRALIA Sklavos v Australasian College of Dermatologists [2016] FCA 179 File number(s): NSD 992 of 2013 Judge(s): JAGOT J Date of judgment: 2 March 2016 Catchwords: HUMAN RIGHTS – Discrimination – Disability Discrimination Act 1992 (Cth) – direct and/or indirect discrimination – whether adjustments sought reasonable or imposed undue hardship – whether applicant treated less favourably – identification of relevant comparator – whether less favourable treatment upon basis of disability CONTRACTS – construction – incorporation of terms –whether contractual in nature – terms implied by law – whether breach of contract established NEGLIGENCE – Civil Liability Act 2002 (NSW) – duty of care – special relationships and duties – whether duty to prevent psychiatric injury – standard of care – whether precautions could have been taken in disciplinary process – causation – pre-existing likelihood of developing injury. Held: Application dismissed Legislation: Australian Human Rights Commission Act 1986 (Cth) s 3, 46PO Disability Discrimination Act 1992 (Cth) ss 4-6, 11, 12, 19, 21A, 22, 27, 29, 32 Health Insurance Act 1973 (Cth) s 3D Health Insurance Regulations 1975 (Cth) r 4, sch 4 Disability Standards for Education 2005 paras 5.2, 6.2 Civil Liability Act 2002 (NSW) ss 5-5E, 11A-14, 16, 27-29, 31, 32 Cases cited: Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 CGU Workers Compensation (NSW) Ltd v Garcia [2007] NSWCA 193; (2007) 69 NSWLR 680 Commonwealth Bank v Human Rights & Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 2; (2002) 209 CLR 95 Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 James v Royal Bank of Scotland [2015] NSWSC 243 Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127 Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 New South Wales v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583 New South Wales v Spearpoint [2009] NSWCA 233 Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193 Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; (2014) 231 FCR 403 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 Shahid v Australasian College of Dermatologists [2008] FCAFC 72; (2008) 168 FCR 46 State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 Wicks v State Rail Authority of New South Wales [2010] HCA 22; (2010) 241 CLR 60 Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378 Dates Of Hearing: 26 – 30 October 2015 3 – 5 November 2015 9 November 2015 Date of Last Submissions: 1 December 2015 (Applicant) Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of Paragraphs: 441 Counsel for the Applicant: Mr I Neil SC with Mr P Moorhouse Solicitor for the Applicant: Petrine Costigan Lawyers Counsel for the Respondents: Mr J McLeod Solicitor for the Respondents: Kennedys (Australasia) Pty Ltd ORDERS NSD 992 of 2013 BETWEEN: ANGELO SKLAVOS Applicant AND: THE AUSTRALASIAN COLLEGE OF DERMATOLOGISTS Respondent JUDGE: JAGOT J DATE OF ORDER: 2 March 2016 THE COURT ORDERS THAT: 1. The amended originating application dated 9 September 2015 be dismissed. 2. The applicant pay the respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JAGOT J: 1 BACKGROUND [1] 1.1 Factual context – a brief overview [1] 1.2 Claims [23] 2 THE DISABILITY DISCRIMINATION CLAIMS [28] 2.1 The claim in the context of the statutory provisions [28] 2.2 Specific phobia – the evidence [44] 2.3 Specific phobia - discussion [61] 2.4 Direct discrimination [84] 2.4.1 Overview of Dr Sklavos's claims [84] 2.4.2 Adjustment One [86] 2.4.3 Adjustment Two [129] 2.4.4 Adjustment Three [152] 2.4.5 Conclusions [156] 2.5 Indirect disability discrimination [157] 2.5.1 Overview of Dr Sklavos's claims [157] 2.5.2 Elements of the statutory provisions [159] 2.5.3 Conclusions [205] 2.6 Consequences [206] 2.7 Remedies [212] 3 THE EXAMINATIONS [217] 3.1 Introduction [217] 3.2 Dr Sklavos's propositions [221] 4 THE CONTRACT CLAIMS [258] 4.1 Dr Sklavos's case [258] 4.2 Existence of a contract [262] 4.3 Express contractual terms [268] 4.3.1 The support and communicate term [275] 4.3.2 The bullying and harassment term [279] 4.3.3 The harassment and discrimination free term [282] 4.3.4 The diligence, honesty and respect term [291] 4.3.5 The fairness term [294] 4.3.6 The fair assessments term [297] 4.3.7 The no need to repeat written examination term [300] 4.3.8 The fair dealing in relation to disciplinary matters term [307] 4.3.9 The prevent bullying term [312] 4.3.10 The commitment to training term [316] 4.3.11 The no reasonable barriers to assessment term [319] 4.4 Implied contractual terms [323] 4.5 Breach of contract? [332] 4.5.1 Clinic list conduct [332] 4.5.2 The requirement to re-sit the written examinations [381] 4.5.3 The assessment of Dr Sklavos's performance in the 2010 written examination [384] 4.5.4 The alleged failure to make reasonable adjustments [385] 4.5.5 The alleged failure to assist Dr Sklavos [386] 4.6 Conclusions [387] 5 NEGLIGENCE [388] 5.1 The claim [388] 5.2 Statutory provisions and principles [389] 5.3 Duty of care [403] 5.4 Alleged breaches of the duty of care [411] 6 DAMAGES AND COMPENSATION [427] 7 CONCLUSIONS [441] 1. BACKGROUND 1.1 Factual context – a brief overview 1 Sometimes the single-minded pursuit of a worthy goal can involve a price which is too high. This is one such case. 2 Angelo Sklavos, the applicant, is a medical doctor. While still an undergraduate, he started to focus his mind on becoming a specialist dermatologist. After graduating, he undertook work overseas focused on dermatology. He returned from overseas determined to become a dermatologist. He became registered as a medical practitioner in Australia in January 1994. To become a dermatologist in Australia he needed to gain entry into the Australasian College of Dermatologists (the College), as it is the only body in Australia which has the capacity to confer Fellowship on a person so that they may be recognised and practice as a dermatologist. The College's training program (initially a five, and then a four year program) is accredited by the Australian Medical Council (the AMC) for this purpose. 3 Between 1994 and 1996, Dr Sklavos undertook work as an intern, then resident, and then registrar in the New South Wales public hospital system, which is required before any medical practitioner may apply to the College for entry as a trainee. 4 Not every medical practitioner who applies to the College is admitted as a trainee. The College has to make arrangements with hospitals for training purposes and only admits the number of trainees for whom it can obtain placements in the hospital system. Trainees are selected based on an examination and interview process. In 1996 and 1997, Dr Sklavos applied for entry but failed the examination. He tried again in 1999 and passed the examination but did not gain entry as a trainee. In 2000, believing it would assist him to gain admission as a trainee of the College, he enrolled at the University of Sydney as a doctoral (PhD) candidate, his proposed thesis relating to melanoma. 5 Between 1999 and 2006, Dr Sklavos applied for admission as a trainee of the College in every year but was unsuccessful. He supported himself through part-time work as a general practitioner and also undertook such other dermatology related work as he could, which he thought might increase his chances of gaining entry to the College as a trainee. 6 From early on in his dealings with the College, Dr Sklavos considered that he was disadvantaged compared to other candidates because he did not have connections in dermatology. His perception of his disadvantage was reinforced by his repeated failure to obtain admission to the training program. At the same time, he perceived that he had to complete his PhD in order to obtain entry as a trainee when other candidates did not face this hurdle. This also caused him to develop a sense of grievance against the College. He also found his PhD supervisor difficult and unhelpful. 7 While he completed his PhD thesis in 2006 he was not awarded his PhD until 2009 because the examiner required amendments which Dr Sklavos was unable to complete due to family obligations. In the meantime, however, he was finally admitted as a trainee of the College in its 2007 program. He thus became a trainee feeling aggrieved at the College for, as he saw it, making decisions based on connections and not merit, for a lack of transparency in the admissions process, and for being required to complete his PhD before he could obtain admission when he felt that this was not a requirement imposed on other candidates. 8 On admission as a trainee, Dr Sklavos felt euphoric but also anxious. He was euphoric to have achieved his goal but anxious the College would not treat him fairly based on what he perceived he had had to go through in the admissions process. 9 Dr Sklavos started to perceive things going wrong with his training in his second year, 2008. Despite his concerns, he passed all requirements that year. However, things went very wrong for Dr Sklavos from 2009. In early 2009, Dr Relic, his supervisor at the John Hunter Hospital, Newcastle, where Dr Sklavos had worked during 2008 as part of the College's system for rotations through training positions, saw a patient at the Hospital clinic, CM. CM's file contained a letter written by Dr Sklavos to CM's general practitioner referring to CM having attended the clinic in May 2008. Dr Relic was informed by CM's mother that CM, a child, had been scheduled to attend the Clinic in 2008 on a number of occasions but had not done so, 2009 being the first time CM had attended the Clinic. This, and the College's subsequent investigation and dealings with Dr Sklavos about this including the College's referral of Dr Sklavos to the New South Wales (NSW) Medical Board, is referred to as the "clinic list incident" or "conduct". Dr Sklavos's concerns about and sense of grievance against the College increased significantly during this period. 10 Things continued to go wrong for Dr Sklavos in late 2009 when he was assigned to a training position at the Royal North Shore Hospital and required to undergo an interview before his placement would be accepted. The supervisor at the Royal North Shore Hospital had heard of the clinic list incident and was not willing to have Dr Sklavos as a trainee without first interviewing him. Dr Sklavos felt he would not be treated fairly at that hospital due to this and, at his request, the College arranged an alternative placement in a training position at the Liverpool Hospital. Dr Sklavos's experience with the Royal North Shore Hospital reinforced his anxieties about the College's treatment of him. 11 Dr Sklavos was scheduled to sit the College's final examinations in 2010. In late 2009, the College changed its procedures concerning the circumstances in which a trainee would be able to carry over a pass in the written examinations into subsequent years. Dr Sklavos perceived this to be somehow targeted at him. 12 Dr Sklavos then had a problem with his case reports, which were another College requirement. His second case report was rejected for publication, which he took as a "slap in the face". He then felt further aggrieved because he did not know that the College might have accepted a different form of publication (a letter to the editor) as sufficient and felt cheated of the opportunity to use this means to meet his publication requirements. Despite this, Dr Sklavos, along with three other candidates, was permitted to sit for the final examinations in early June 2010 without having completed his publication requirements beforehand. 13 Dr Sklavos's troubles continued, however. In early July 2010, he was given an unsatisfactory performance review for his first half at Liverpool Hospital and was subjected to a performance improvement requirement. This made Dr Sklavos very anxious and distressed. 14 Dr Sklavos was informed by the College on 30 June 2010 that he was invited to take the clinical examinations. Unbeknownst to him, however, the College later discovered it had made an error in this regard and it considered that Dr Sklavos's marks were not sufficient for him to be invited to take the clinical examinations. Dr Sklavos's actual performance in the 2010 written examinations is an issue in dispute. The College decided that it would not rescind the invitation to Dr Sklavos to sit the clinical examinations and not to inform him of the issue about his written examinations as it might adversely affect his performance in the clinical examinations. This was because the College considered that if he passed the clinical examinations he should be admitted as a Fellow irrespective of the written examinations. 15 Dr Sklavos took the clinical examinations starting on 24 July 2010. He did so feeling nervous and aggrieved that he had not been given the peace of mind needed to prepare properly. He had been unable to arrange leave from the Liverpool Hospital to prepare for the examinations and was continuing to work. His wife was late into pregnancy with their second child. By the end of the process of the clinical examinations, he felt physically and mentally exhausted and anxious. He did not pass the clinical examinations. He was then told that he had not in fact passed the written examination and would be required to re-sit both the written and clinical examinations the following year. 16 Dr Sklavos completed his year at Liverpool Hospital without further incident. He continued to work at Liverpool Hospital until the College notified him that his supervised training would be completed by 31 July 2011 (the training program having been reduced from five to four years). The College had arranged for Dr Sklavos to work at the private practice of Dr Younger in Campbelltown one day a week since February 2011 and his work there increased after his training at the Liverpool Hospital ended. Dr Sklavos enjoyed working in Dr Younger's practice and he experienced no problems while working there. 17 Dr Sklavos applied to sit for the Fellowship examinations in 2011. He had yet to complete his publication requirements but was permitted to sit the 2011 examinations. While he still felt deeply aggrieved and troubled by all that had occurred, which he now characterised as not only unfair and arbitrary but also malicious treatment of him by the College, he considered that he could pass the examinations in 2011. At the same time, however, he thought the College was running a campaign against him to ensure he could not be admitted as a Fellow. He experienced more severe anxiety symptoms than in 2010. In any event, he sat the written examination in June 2011. He did not pass and thus was not invited to sit the clinical examinations in 2011. The College allowed candidates four attempts to pass the examinations in a 10 year period from the start of training. 18 Dr Sklavos continued to work at Dr Younger's practice. By 28 July 2011, Dr Sklavos's solicitor had written to the College making many allegations against it and claiming that Dr Sklavos should be admitted as a Fellow without undertaking further examinations. By this time, and probably before, Dr Sklavos had no doubt that members of the College were involved in a conspiracy against him. The College refused to admit Dr Sklavos as a Fellow and denied the allegations against it. 19 By late 2011, Dr Sklavos had seen a psychiatrist. By a letter dated 22 December 2011, Dr Sklavos again sought to be elected as a Fellow of the College without having to undertake and complete the College's examinations, relying instead on his qualifications and experience. In late January 2012, the psychiatrist diagnosed Dr Sklavos with a specific phobia, the phobia relating to sitting the College's examinations. By another letter dated 7 February 2012, Dr Sklavos's solicitor provided to the College a copy of the psychiatrist's report and asked that it be considered in the context of the letter from Dr Sklavos of 22 December 2011. 20 By letter dated 21 February 2012, the College informed Dr Sklavos that his application to be elected as a Fellow had been refused. The letter also said that the College would consider any reasonable request for special conditions in the 2012 examinations. Dr Sklavos notified the College on 8 March 2012 that he intended to sit the 2012 Fellowship examinations and requested that certain steps be taken to allow him to do so. Correspondence ensued with the adequacy of the adjustments the College was prepared to make being an issue in dispute. Ultimately, however, and with the benefit of advice from his psychiatrist, Dr Sklavos decided he was unable to sit for the 2012 examinations. He then lodged a complaint with the Australian Human Rights Commission (the AHRC) about alleged disability discrimination by the College. 21 Dr Sklavos ceased to work at Dr Younger's practice in September 2012, in circumstances which are in dispute. Thereafter, in the context of this proceeding, Dr Sklavos thought he would be able to undertake an alternative form of assessment, if offered by the College. His present position, however, is that his psychiatric condition has become more severe and he is unable to engage in any process involving any assessment of him by the College at this time or in the foreseeable future (a view supported by a psychiatrist who gave evidence in Dr Sklavos's case). Dr Sklavos has worked casually as a locum general practitioner at various times since he ceased work at Dr Younger's practice. 22 The AHRC terminated his complaint in April 2013. This proceeding was commenced in June 2013. It has an unfortunate procedural history which caused delays in the fixing of the matter for hearing (including a dispute about subpoenas which was the subject of an appeal to the Full Court, see Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378). 1.2 Claims 23 Dr Sklavos's makes three claims against the College. 24 The first involves an application under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) by which Dr Sklavos alleges that the College engaged in either direct or indirect disability discrimination in contravention of the Disability Discrimination Act 1992 (Cth) (the Disability Discrimination Act). The relief he seeks is an order that he be made a Fellow of the College and compensation. 25 The second involves allegations that in multiple respects the College breached a contract or contracts into which it entered with Dr Sklavos in respect of his training. The relief he seeks is damages. 26 The third involves allegations that the College negligently breached a duty of care it owed to Dr Sklavos by reason of the clinic list conduct. The relief he seeks is damages. 27 It is unfortunate but necessary to observe that the written submissions which each party provided have made the task of resolving the issues more difficult than might have been hoped. Those on behalf of Dr Sklavos delved into the minutiae of every event that occurred to Dr Sklavos in his attempts to become a dermatologist from 1996 onwards and how each such event impacted on Dr Sklavos's state of mind, without apparent regard to the importance of the event to the causes of action. Those on behalf of the College touched but lightly on some, but by no means all, of the key issues. 2. THE DISABILITY DISCRIMINATION CLAIMS 2.1 The claim in the context of the statutory provisions 28 Dr Sklavos claims that at all times since at least 28 January 2012 he has suffered from a disability for the purposes of the Disability Discrimination Act. Under s 4(1) of the Disability Discrimination Act, "disability" is relevantly defined to include: (g) a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour; 29 Dr Sklavos's case is that since at least January 2012, he has suffered from a recognised psychiatric illness known as specific phobia, situational type (the relevant situation being examinations of the College). He alleges unlawful discrimination by the College against him in respect of which he made a complaint to the AHRC on 29 June 2012 (amended on 16 October 2012). The complaint was terminated by the AHRC on 17 April 2013. In accordance with the time limit of 60 days prescribed by s 46PO(2) of the AHRC Act, Dr Sklavos commenced this proceeding on 5 June 2013. 30 Section 46PO(1) of the AHRC Act provides that if a complaint has been terminated by the President of the AHRC, any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. By s 46PO(3) the unlawful discrimination alleged in the application must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. This requirement is satisfied in the present case. 31 The Court's powers if the allegation of unlawful discrimination is sustained are contained in s 46PO(4) of the AHRC Act which is in these terms: If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re-employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter. 32 It will be apparent that Dr Sklavos's claim for compensation is founded on s 46PO(4)(d) of the AHRC Act. His claim for an order that he be made a Fellow of the College is based on s 46PO(4)(b). 33 "Unlawful discrimination" is a defined term. Insofar as relevant, it is defined in s 3(1) of the AHRC Act to mean any acts, omissions or practices that are unlawful under Part 2 of the Disability Discrimination Act. 34 In the Disability Discrimination Act, "discriminate" is given meaning by ss 5 and 6 (s 4(1)). 35 Section 5 of the Disability Discrimination Act defines direct disability discrimination as follows: (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments. 36 Section 6 of the Disability Discrimination Act defines indirect disability discrimination as follows: (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and (c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability. (3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. (4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition. 37 Section 4(1) is a form of deeming provision. Under s 4(1), an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. "Unjustifiable hardship" is defined in s 11. Section 11 is in these terms: (1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following: (a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned; (b) the effect of the disability of any person concerned; (c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person; (d) the availability of financial and other assistance to the first person; (e) any relevant action plans given to the Commission under section 64. (2) For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship. 38 In Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [22] Mortimer J said that: The word "adjustment" is left undefined by the statute and is to be given its ordinary meaning as "an alteration or modification": Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the court in the second instance to determine whether an adjustment is "reasonable". Although the word "reasonable" is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA. 39 Justice Mortimer continued in these terms at [27]: The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it "for" the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose … One consequence is that what constitutes "hardship" and the circumstances in which it might be "unjustifiable" may be broader than if the statute used reasonableness as a criterion of liability. 40 Section 12 controls the application of the Disability Discrimination Act. The College conceded that its conduct was subject to the provisions of that Act. I infer that the College accepts for the purpose of this case that it is a trading or financial corporation (see s 12(9) of the Disability Discrimination Act). 41 Part 2 of the Disability Discrimination Act identifies kinds of unlawful discrimination. Dr Sklavos relied on ss 19 (qualifying bodies), 22 (education authorities and providers), 27 (clubs) and 29 (administration of Commonwealth laws and programs) to found his claims. He also relied on s 32 (contravention of disability standards). 42 The College admitted that it was a qualifying body and education provider (but not education authority) for the purposes of ss 19 and 22 respectively of the Disability Discrimination Act. The College admitted also that it was subject to s 32 (disability standards) as an education provider and educational institution, the relevant standard being the Disability Standards for Education 2005. The College denied it was a club and contended that s 27 did not otherwise apply given that the alleged discrimination involved work and not other areas. The College also denied that s 29 and related provisions concerning administration of Commonwealth laws and programs applied to it. Given the College's admissions about it being a qualifying body and an education provider, and that it was subject to s 32, it is not necessary to resolve these other disputed issues. 43 The relevant provisions of the Disability Discrimination Act which the College accepted applied to its conduct at all material times, accordingly, are these: 19 Qualifying Bodies It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of the person's disability: (a) by refusing or failing to confer, renew or extend the authorisation or qualification; or (b) in the terms or conditions on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification; or (c) by revoking or withdrawing the authorisation or qualification or varying the terms or the conditions upon which it is held. 22 Registered Organisations under the Fair Work (Registered Organisations) Act 2009 … (2A) It is unlawful for an education provider to discriminate against a person on the ground of the person's disability: (a) by developing curricula or training courses having a content that will either exclude the person from participation, or subject the person to any other detriment; or (b) by accrediting curricula or training courses having such a content. … 31 Disability Standards (1) The Minister may, by legislative instrument, formulate standards, to be known as disability standards, in relation to any area in which it is unlawful under this Part for a person to discriminate against another person on the ground of a disability of the other person. 32 Unlawful To Contravene Disability Standards It is unlawful for a person to contravene a disability standard. 2.2 Specific phobia – the evidence 44 Dr Sklavos was first diagnosed as suffering from a psychiatric disorder (that is, specific phobia) on 28 January 2012 in a report prepared by a psychiatrist, Dr de Saxe. Dr Sklavos first became aware of this report on or about 6 February 2012, when his solicitor received a copy of Dr de Saxe's report and felt the diagnosis explained his symptoms and was thus correct. 45 Two psychiatrists gave evidence concurrently during the hearing. Dr Sklavos called Professor Nicholas Glozier, who is a Professor in the Disciplines of Psychiatry and Sleep Medicine at the University of Sydney and a practicing consultant psychiatrist. The College called Professor Anthony Samuels, who is an Associate Professor of Psychiatry at the University of New South Wales and a practicing consultant forensic psychiatrist. 46 In his report of February 2014, Professor Glozier diagnosed Dr Sklavos as suffering from the recognised psychiatric illness of specific phobia, noting that: The constellation of symptoms that developed in late 2011/early 2012 of anticipatory anxiety with heightened physical symptoms of arousal, insomnia, somatic features of palpitations, dry retching and nausea, in the context of examinations, have the characteristics of a phobic reaction. As such, I agree with Dr De Saxe that these symptoms of marked fear and anxiety, provoked by exam related phenomena, leading to avoidance and being out of proportion to the anxiety others would have in an exam situation, would meet the criteria for a Specific Phobia. Because of the duration criteria, e.g. six months, one would not have actually been able to diagnose this until early 2012 as these symptoms require their presence to be there for six months. 47 Professor Glozier's diagnosis was based in part on Dr Sklavos's report of symptoms meeting all the diagnostic criteria for specific phobia identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The diagnostic criteria for specific phobia outlined in DSM-5 are as follows: A. Marked fear or anxiety about a specific object or situation (e.g., flying, heights, animals, receiving an injection, seeing blood). Note: In children, the fear or anxiety may be expressed by crying, tantrums, freezing, or clinging. B. The phobic object or situation almost always provokes immediate fear or anxiety. C. The phobic object or situation is actively avoided or endured with intense fear or anxiety. D. The fear or anxiety is out of proportion to the actual danger posed by the specific object or situation and to the sociocultural context. E. The fear, anxiety, or avoidance is persistent, typically lasting for 6 months or more. F. The fear, anxiety, or avoidance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. G. The disturbance is not better explained by the symptoms of another mental disorder, including fear, anxiety, and avoidance of situations associated with panic-like symptoms or other incapacitating symptoms (as in agoraphobia); objects or situations related to obsessions (as in obsessive-compulsive disorder); reminders of traumatic events (as in posttraumatic stress disorder); separation from home or attachment figures (as in separation anxiety disorder); or social situations (as in social anxiety disorder). 48 More recently, in Professor Glozier's report of June 2015, he concluded that Dr Sklavos continues to suffer from specific phobia, stating that: Dr Sklavos still presents as someone who has a Specific Situations Phobia of the examinations with reports of the same beliefs and avoidance as previously. His fear would appear to be out of proportion, particularly for someone who has taken many previous examinations. I would note that some aspects of associated stimuli, e.g. spending two days with dermatologists and seeing people whom he believes are involved in the conspiracy, led to a brief episode of anxiety with a short-lived panic attack that resolved and was not subsequently disabling. Again this would confirm the suggestion that this situational phobia still exists. 49 In his report of October 2014, Professor Samuels concluded that while the anxiety which Dr Sklavos exhibited in respect of the College examinations was towards the severe end of the spectrum, he would not diagnose the psychiatric illness of specific phobia despite accepting that the reported symptoms satisfy the criteria in DSM-5 for Specific Phobia. Professor Samuels said: I accept that with a very literal interpretation of the DSM-IV-TR and DSM 5 criteria it might be possible to apply the criteria of Specific Phobia to Dr Sklavos but you would need to be convinced he was suffering from an illness and I am not persuaded in this regard. 50 Professor Samuels considered that Dr Sklavos had experienced ongoing difficulties with the College because of dysfunctional personality traits, observing this: In my opinion it is, in fact, far more likely that it is his underlying personality style rather than a situational phobia that is impeding his ability to fulfil his training and Fellowship requirements. His personality dysfunction is the factor most likely to lead his supervisors to have some reservations about his competence and abilities to function autonomously as a consultant dermatologist. 51 In oral evidence Professor Samuels said: First of all, another cautionary note in the front of DSM-5 is the use of DSM-5 in the courtroom. It's called the Diagnostic and Statistical Manual, but there are no diagnoses in DSM-5; they are descriptions of various conditions. Unfortunately, we're at the stage in psychiatry where we don't actually fully understand the biological origin of many of our psychiatric disorders. We treat things symptomatically. We have some understanding that some neurotransmitter systems are awry. We can show some brain changes on MRI scans, but we actually don't really understand what the disease is. You can say that somebody had tuberculosis; you can identify the tubercle bacillus. We can't do that in psychiatry. So these are descriptors, and DSM-5 is a useful way for clinicians to communicate with each other about a cluster of symptoms. But one really has to decide whether that condition has clinical significance. 52 The cautionary note in DSM-5 regarding its use in court proceedings states as follows: Cautionary Statement for Forensic Use of DSM-5 Although the DSM-5 diagnostic criteria and text are primarily designed to assist clinicians in conducting clinical assessment, case formulation, and treatment planning, DSM-5 is also used as a reference for the courts and attorneys in assessing the forensic consequences of mental disorders. As a result, it is important to note that the definition of mental disorder included in DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than all of the technical needs of the courts and legal professionals. It is also important to note that DSM-5 does not provide treatment guidelines for any given disorder. When used appropriately, diagnoses and diagnostic information can assist legal decision makers in their determinations. … … However, the use of DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings. When DSM-5 categories, criteria, and textual descriptions are employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. … 53 Professor Samuels also gave weight to the fact that, other than in relation to the College's examination requirements, Dr Sklavos was essentially asymptomatic. He explained this in oral evidence in these terms: You could shoehorn him into the criteria that are specified in DSM-5. The problem is that I don't believe his anxiety is a clinical psychiatric condition. It's extremely circumscribed, it only occurs in the context, or the prospect of sitting an examination. For the rest of his life he's getting on with things, he's doing his job, he's participating in family and social life. Generally, psychiatric disorder is something that pervades all aspects of your functioning. There also is a cautionary note in the front of DSM which expands the definition of "disorder". Generally, "disorder" relates to impairment in social, occupational and other functioning. There's also a small note in the front of DSM-5 which says that: A disorder is not – where an individual has a conflict with society this should not be construed as a disorder. And in a sense this is what this is. This is an individual who is at odds with part of our society; the College of Dermatologists. I am very sceptical that this is an illness because it rarely – I agree that it needs some management. If he is to pass his exams, like all trainees he is going to have to find some strategies to manage that anxiety or possibly the College of Dermatologists may modify their examination processes to accommodate him to make him less anxious. I – in terms – there are also in terms of – while I say we can – he could – I can agree with Professor Glozier that we could make a DSM-5 diagnosis, my thesis is that doesn't really mean very much in the real world. 54 The definition of mental disorder to which Professor Samuels was referring is as follows: Although no definition can capture all aspects of all disorders in the range contained in DSM-5, the following elements are required: A mental disorder is a syndrome characterized by clinically significant disturbance in an individual's cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior (e.g., political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above. The diagnosis of a mental disorder should have clinical utility: it should help clinicians to determine prognosis, treatment plans, and potential treatment outcomes for their patients. However, the diagnosis of a mental disorder is not equivalent to a need for treatment. 55 Other relevant evidence, which captures the difference in approach of Professor Glozier and Professor Samuels, or which is otherwise relevant to the issues which must be resolved in this proceeding, included the following: 56 Professor Glozier: "what has made me even more certain about that diagnosis is that over time this has become more entrenched and more severe, such that recently, when faced with the option of actually having to go and do – when I wrote a more recent report, which hasn't been tabled, suggesting work based assessments, his response was so extreme he actually ended up being hospitalised in a public psychiatric hospital for a few days, because his response was so extreme. I would suggest that is not a normal part of the human continuum of a fearful response, so that is why I've been even more certain that he has this specific disorder. And he meets those criteria. We don't have to shoehorn him. He meets those criteria"; "In terms of the personality disorder – I'm glad Dr Samuels agrees with me – he doesn't have a personality disorder. Conversely, I also agree with Dr Samuels, he does have a number of obsessive, and paranoid, and somewhat narcissistic traits. He has those. Doctors have them in spades. Loads of doctors have them"; "I too mulled over the idea of a delusional disorder, which is a psychotic disorder, complete loss of bounds with reality. And like my colleague here, I don't think he meets the criteria for that, but actually the ideas he holds do – around the College do show underlying, sort of, paranoid and obsessive traits which have led him to those beliefs… So the presence of those things – of those personality traits – does not undermine or invalidate the presence of a specific situational phobic disorder"; "the idea that one can only have a diagnosis if there is a treatment for it is – is complete category error. We have a whole pile of diagnoses we don't have a treatment for: frontotemporal dementia being a classic one, which we know has an underlying pathology. We don't have a treatment for it. It's a diagnosis. We can't treat the underlying dysfunction of autism, for instance. So a diagnosis is there for a bunch of reasons. It's there for – you know, to help doctors communicate to each other, particular kinds of syndromes, to give a patient some kind of meaning to what they're experiencing, to give them some idea of when they might experience it again, so that's one thing"; "Secondly, the idea that actually – yes, with – with these situational things, we cleave nature at the joints. In fact, medicine does that not just in psychiatry, but across the board, you know. We decide that diabetes occurs at a certain cut point on a glucose tolerance test. Underneath you ain't got diabetes, above it you do. It is a completely artificial distinction. We are not the only branch of medicine that makes completely artificial distinctions saying, 'That is a disorder. That is not a disorder'. And I think, in this case – and what happens is, people agree…"; "by definition, a social and specific or situation phobia – specific phobia is transitory. That is the definition – the core definition of it. It is – it is only existing in the presence of the feared situation. Outside of the presence of the feared situation, one would expect to see no clinically significant symptoms, no impairment, no disability outside of those situations. Faced with the situation or faced with the threat of being in – in that situation, which is called anticipatory anxiety, one develops symptoms and impairment"; "So we all have personality traits and they can be accentuated in very different areas. They're our characteristics, if we like, and some can be stronger. I think both of us agree that Dr Sklavos has certain strong characteristics or personality traits, but does not have an actual disorder, which again is that box, that sort of extreme end. These are like any kind of vulnerability. Whether you've had early child abuse, whether you've had some neurodevelopmental problems, you've had drug dependence in your – in your – they form one of a range of vulnerabilities to the development of another psychiatric disorder. And so I would suggest that, yes, as Dr Samuels says, they were part of a vulnerability to him developing this specific disorder, but they're only a vulnerability. This disorder is not part of those traits. If you look, the specific situational phobia is not part of the diagnostic criteria of any of the personality disorders. So, yes, the personality traits were a vulnerability, but they – which may have enhanced the likelihood of him developing this specific phobia, but the specific phobia exists as a separate entity and a separate diagnosis and disorder". 57 Professor Samuels: "my view is that he has obsessional personality traits, not an obsessive compulsive disorder"; "I think he has a number of personality traits that are dysfunctional. And these have been evident throughout his training. He had problems getting to training. I suspect that may have been related to his personality. He has problems in training. He didn't want to work with particular doctors. He – all sorts of special arrangements were made. It brought him to the attention of people and probably did heighten some of the antagonism that occurred. He also is not very responsive to feedback"; "I think Dr Sklavos has quite a lot of mixed traits. He has narcissistic traits. He probably has paranoid traits. He certainly has some obsessional characteristics to his personality. He finds it very difficult to change course once he has set the course"; "There is one other issue that we haven't touched on, and that's the issue of whether he has a delusional disorder, because he certainly has quite strongly held beliefs that the College of Dermatologists are singling him out, persecuting him, not wanting him to proceed because he has special knowledge or – he has come up with a whole range of idea[s] which are unlikely. Now, I don't think that he has a psychotic illness or a delusional disorder. And I actually think that that – the paranoid aspects of his presentation probably relate to some adverse experiences. There probably is some – some hostility in the college because of the way that he has interacted with them at various times, but I actually think it comes from a core of narcissism. You actually have to believe you are quite special and important for people to pick on you. Basically, most people don't really care about other people, and it's highly unlikely that this organisation would particularly single out this doctor as being a commercial threat, a knowledge threat or whatever it might be. So I actually would see that sort of paranoid stuff as probably stemming from personality dysfunction. So essentially I don't think he has a psychiatric diagnosis in the form of an anxiety disorder, but I do think he has dysfunctional personality traits"; "There are some people who just – whether it's anxiety, whether it's personality, whether they're just not intellectually good enough, can't get through examination processes. And I guess the question is, how does – is – can you really ascribe that to psychiatric disorder? In any training program there are going to be successes and failures, and the candidate who does continually badly is going to become more sensitised, more phobic – for want of a better word – about the process, more paranoid about the organisation that keeps denying him what he wants, but I still have reservations that that is truly a psychiatric disorder"; "It is normal to be anxious in the exam situation. It only becomes – and you will have some of those symptoms, but hopefully you will control them, and if you have some anxiety you will actually do better than the person who doesn't. But I agree, if those symptoms are sustained and severe, you probably won't do well. And part of your way of getting through an exam, or managing the exam process is trying to control that anxiety through a range of techniques"; "I accept that you can potentially develop a phobia about examinations, and I – and the setting that has – the setting in which that has then occurred, repeated failure and adverse outcomes, would sensitise anybody, I think, to the fear of failure. And I agree that his response and avoidance has become pretty severe. And we could call it a psychiatric disorder. I am, you know, aligned with Professor Glozier in that degree, but I still think that – this is the problem: you can find a diagnosis in DSM-5, but what does it mean in the real world. And I accept in DSM-5 terms we could probably make – we can make a diagnosis; I accept that. But the issue is, is this a clinical condition – condition that requires a specific psychiatric treatment? I – my view is that it's not. It requires some management. He needs to learn some techniques to minimise his anxiety to cope with the exam process and get through it, and he would probably be well suited to work with a psychologist. But I still – I would still not ascribe – this is – this is a phenomenon that's experienced by – by many people and it's still – I would see it at the – at the extreme end of a normal anxiety response. He is undoubtedly a very anxious man and his anxiety is preventing him from passing the exam, but whether this is really at the extreme – this is someone who is at the extreme end of anxiety as opposed to having a psychiatric clinical condition is the difficulty for me. And I think that I would – I conceptualise this as somebody who is extremely anxious and at the extreme continuum of anxious people across the population, but whether – but I hesitate to say this has become a true psychiatric clinical condition"; "But I think that his prognosis in terms of treatment is quite limited by his personality, so I think there's a psychiatric issue, but I think the psychiatric issue is, really – I think that this anxiety state should be manageable, and I – I – I'm not particularly fussed whether we're going to say – and I will – I can concede that it's a specific exam situational phobia, but it doesn't really – the point of it is that it's actually his personality dysfunction that is going to be the limiting factor, I think, in terms of him passing the hurdle of the exams. It's not actually the – the exam phobia"; "So he doesn't have a [personality] disorder, I agree, but just as much as the anxiety symptoms are clinically significant, his traits are clinically significant because they have led to problems, and his career problems, and not working with this consultant, not working with that consultant, conspiracies, et cetera…ultimately, they've led to a lot of anxiety for him, and probably the reason why we're sitting in the courtroom today. But they actually create real problems. He had problems at North Shore Hospital because he felt that the Professor there was going to discriminate him – against him, or cause problems for him, so he went through a whole process of having to meet with the Director of Medical Services and try to get placed elsewhere. I mean, these have in a real and practical sense impeded his placements, affected his training, probably soured the attitudes of various supervisors because of all the stuff that went around them. So these traits – he was not a – an easy trainee. He was somebody who by dent of his behaviours brought himself to the attention of the system, and probably did develop a reputation of being a difficult trainee. So some of his – which probably fed into his anxiety as well. Some of his perceptions that he wasn't liked, or there was a conspiracy, probably has some basis in reality because his particular personality traits engendered reactions from people around him". 58 Professors Glozier and Samuels also agreed that, irrespective of his own perceptions that he only became anxious when confronted with the College's examinations, Dr Sklavos's personality traits meant that he would have been ruminating about the perceived unfairness of the College's treatment of him and that, for Dr Sklavos, this kind of rumination would have become normal, thereby fuelling his anxiety about the examinations. By 2011, they both characterised Dr Sklavos's reported symptoms as indicative of severe anxiety about the examinations which appeared to have worsened over time to the point where, in 2015, Professor Glozier's view that Dr Sklavos might be able to submit to work-based assessments by the College resulted in him having suicidal thoughts and a hospital attendance. 59 Professor Glozier also gave evidence that Dr Sklavos had been referred to a psychologist who undertook exposure therapy with him in 2015, which was unsuccessful. Professor Glozier explained that: in Dr Sklavos' case, undertaking the treatment – because none of our treatments are a hundred per cent effective – he was one of those people who actually became – certainly did not improve, and possibly became worse as a result of that course of treatment, which is the evidence-based treatment.. 60 Professor Glozier now thought it "incredibly unlikely" that Dr Sklavos could be successfully treated for his specific phobia about the College's examinations given that his phobia had worsened over time, had enlarged to include any form of assessment by the College including work-based assessments which Professor Glozier had thought Dr Sklavos would be capable of undergoing before his recent suicidal ideation, and had proved unresponsive to exposure therapy by an experienced clinical psychologist. He also said this: …one of the real difficulties in undertaking the treatment is recreating the feared exposure, because it's incredibly difficult to recreate an exam. So it's actually a really, really difficult treatment to undertake, and I – I – and I know the psychologist who did it, and she called me at the time when he became really unwell about it. She was just saying how incredibly hard it is to do that treatment, so that's one of the difficulties in envisaging any form of actual treatment in this. 2.3 Specific phobia - discussion 61 The concerns expressed by Professor Samuels about the risks of labelling anything within the ordinary spectrum of human experience, including the experience of severe anxiety which many people might suffer when undertaking a potentially career determining examination process, are readily able to be understood. 62 It would be surprising if many, even most, people undertaking the kind of examination process conducted by the College did not experience high levels of anxiety. People undertaking this process had already spent many years studying and being examined in order to be registered as a medical doctor. Before this, they undoubtedly had to excel in their school years in order to be admitted into the study of medicine. After successfully completing their medical studies and required further training, they then chose to subject themselves to at least five (and now four) more years of specialised training involving an entry exam, ongoing assessment and supervision and final examinations, both written and clinical, which would determine whether they could become a dermatologist. Assuming a medical degree of five years, and the required two years of training in the hospital system before entry to the College as a trainee could be obtained, along with five years (as it was) as a trainee of the College, such a person would have invested a minimum of 12 years in their pursuit of their goal of becoming a dermatologist. Dr Sklavos had invested many more years than this because it took him eight years to be admitted to the College as a trainee. It would be fair to say that Dr Sklavos had invested virtually all of his energies available for his career on his goal of becoming a dermatologist for 13 years, between 1994 and 2006, before he was finally admitted to the College as a trainee in 2007. By the time Dr Sklavos sat for his final examinations it was 2010, representing a total investment by him of 16 years of his life. In these circumstances, for Dr Sklavos to approach his final examinations in a state of anxiety, even severe anxiety, could not reasonably be seen as outside the spectrum of normal human experience. 63 A number of factors persuade me, however, that Professor Glozier's ultimate conclusion that Dr Sklavos is suffering from a specific phobia is to be preferred. 64 First, there seems little doubt on the evidence that Dr Sklavos's anxiety about the College has worsened over time. While I accept that this litigation is likely to be a material contributor to this worsening, the fact is that Dr Sklavos's condition has developed to the point where the mere anticipation of having to undergo work-based assessments involving the College recently caused Dr Sklavos to become very unwell, including suffering from suicidal ideation. Such a reaction, on any view, is well outside what might be expected of a person who had been undergoing therapy with the aim of being able to undertake alternative forms of assessment. 65 Second, the fact that Dr Sklavos's current position is that it is impossible for him to undergo any form of assessment by the College is to be weighed in the context of him having focused on the goal of becoming a dermatologist since 1994. I consider that he would not rule out the possibility of other methods of assessment unless he found them impossible to contemplate without triggering a severe, possibly life threatening by reason of suicide risk, anxiety reaction. I do not accept that his current position involves any form of strategy to increase his chances of success in this litigation. 66 Third, his ability to function normally otherwise than in the context of assessment by the College is consistent with the criteria for the diagnosis of a specific phobia. That context, which is highly significant for achieving his career goal, is the one in which he experiences the severe anxiety reactions. Professor Samuels' concern about the specific nature of the anxiety reaction is part of the diagnosis of specific phobia and thus cannot or should not be used as a disqualifying feature. 67 Fourth, while I accept that DSM-5 has limitations, I do not consider Professor Glozier's evidence to be the result of a mechanistic or "tick-a-box" application of DSM-5. At the same time, I accept Professor Glozier's evidence that DSM-5, whatever its limitations, is the best tool currently available to ensure that psychiatric diagnoses are made consistently and on the basis of widely agreed criteria. 68 Fifth, Professor Samuels' reluctance to agree with the diagnosis of a specific phobia, to my mind at least, involved reservations about DSM-5 at a level of principle. Professor Samuels accepted that Dr Sklavos's description of symptoms satisfied the DSM-5 criteria for specific phobia and that the information now available indicated that his symptoms had worsened over time, but appeared to believe that the diagnosis, specific phobia, would be a label without real meaning or function. Professor Glozier, however, saw the worsening of the symptoms over time as confirmatory of the initial diagnosis. Given the severity of Dr Sklavos's more recent reaction to the possibility of alternative forms of assessment by the College, the opinions of Professor Glozier carry weight. 69 Sixth, the fact that Dr Sklavos appeared calm when giving evidence during the hearing is immaterial. His specific phobia relates to assessment by the College of his capacity to be a dermatologist. 70 Insofar as it is necessary to say so, I do not accept any of the criticisms made of either Professors Glozier or Samuels. Both were highly trained and skilled. I have no doubt that they were giving evidence based on their expertise as frankly as they could. I have no concern about the fact that Professor Glozier amended part of his opinion in response to a letter from the solicitor instructing him. The part of the opinion he amended, in my view, had little to do with his expertise in any event because it related to the adjustments the College had made at Dr Sklavos's request which is a matter ultimately of fact, not opinion. Nor do I have any concern about his view that usually the person suffering from the disability is best placed to assess what adjustments need to be made to account for their disability. To the contrary of the submission for the College that this is self-evidently wrong, in many cases, this will be true. But it is also true that this generalisation says nothing about this particular case and the requests for adjustments Dr Sklavos made. I also do not accept that Professor Glozier's diagnosis was inappropriately influenced by anything Dr de Saxe might have said. I have no doubt that Professor Glozier held his own opinions based on his own expertise. 71 In short, I found Professors Glozier and Samuels to be highly articulate and helpful experts who each gave clear evidence with a view to assisting resolution of the issues about which they had been asked to express opinions. 72 Having regard to the matters set out above, I am satisfied that Dr Sklavos currently suffers from a specific phobia and that the subject-matter of his phobia is assessment by the College of his capacity to be a dermatologist. I consider that it is so unlikely that he will recover from this psychiatric disorder that the possibility of him being able to undertake any form of assessment by the College in the foreseeable future is so small that it can and should be disregarded. 73 When did this disability start? It is clear that Dr Sklavos was not suffering from this specific phobia when he undertook the examinations in 2010. He reported only usual levels of anxiety at that time. Although his anxiety had increased by the time he had to prepare for the 2011 examinations, warranting the description of clinically significant or severe at that time and Dr Sklavos said he thought his phobia crystallised while studying for the 2011 examinations, it is not clear that he was then suffering from the specific phobia. As noted, for such an important life event, even severe anxiety (with symptoms of insomnia, heart palpitations, sweating and some dry retching) would not be outside the normal range of human experience such as to warrant a psychiatric diagnosis. Based on the evidence, it seems to me that after he failed the 2011 written examinations, his condition again deteriorated. It is at this time that he reported feeling "immobilised" by the mere thought of having to sit the examinations in 2012, with his anxiety symptoms so severe that he ultimately withdrew from the examinations despite having set himself the task of sitting for them. In December 2011, he saw Dr de Saxe who gave the specific phobia diagnosis in January 2012 which, said Dr Sklavos, "absolutely resonated" as the explanation for what he had been feeling. Given the requirement in DSM-5 for the symptoms of specific phobia to be present for at least six months, I consider that Dr Sklavos has suffered from this psychiatric disorder since January 2012 or possibly late in 2011 but not at any earlier time. 74 The College did not directly dispute that such a specific phobia would be a disability for the purposes of the Disability Discrimination Act. I agree. 75 Otherwise, I also accept the evidence that Dr Sklavos has strong obsessional, paranoid and narcissistic personality traits which made him vulnerable to the development of an anxiety disorder (of which specific phobia is one type). The presence and strength of these traits is evident from the brief history of the relevant facts as set out above. He entered the College believing he had been unfairly treated and, in effect, primed to react adversely to any dealings with the College which he perceived to be directed against him. Thereafter, it is apparent from his evidence that he almost routinely perceived slights, criticisms and hostility from others when a number of those others gave evidence and denied not so much the event itself but Dr Sklavos's perception of the event. A few examples are enough for this purpose but there were many others in the evidence. 76 Early in his training, he received a telephone call from Dr Artemi, a dermatologist whom he knew from many years before and had socialised with when Dr Sklavos was working in Newcastle. The call related to a photograph in a local newspaper of Dr Sklavos at a social function which described him as a dermatologist. According to Dr Sklavos, Dr Artemi told him that this "had better not happen again", "I have a file on you", and "I had better not hear of anything further". Dr Sklavos said he felt threatened by Dr Artemi's aggressive tone. Dr Sklavos was taken to an email he had written after the conversation with Dr Artemi in which he had thanked Dr Artemi for making him aware of the reference to him as a dermatologist. The email contains nothing but an expression of shock at the description of him as a dermatologist and expressions of gratitude by Dr Sklavos to Dr Artemi for drawing the matter to his attention; saying that "I really appreciate your concern", ending with "[k]ind regards and cheers from Angelo". Dr Sklavos said the terms of the email were because he was trying to be polite, deferential, humble and not inflammatory. He said that he was "trying to placate the anger of Dr Artemi". He also said that subsequent events involving Dr Artemi (relating to the clinic list conduct) confirmed his "worst fears" that Dr Artemi had unfairly judged him. 77 Dr Artemi said that he and Dr Sklavos had become friends in 1997 when they both worked in Newcastle, Dr Artemi then being in his third year of dermatological training (he has been a dermatologist since 1999). Both are of Greek heritage. They would socialise together. Dr Artemi gave Dr Sklavos advice about the College's training program. When he was shown the newspaper article, it was in the context of having been asked if he knew another Greek dermatologist, Dr Sklavos. Dr Artemi was concerned that if the College became aware of this it might think Dr Sklavos was holding himself out to be a dermatologist. He told Dr Sklavos that this was not the kind of image that should be circulating as it would not create a good impression. He denied saying anything to the effect reported by Dr Sklavos, noting that he would not do that to a person he considered to be friend. Dr Artemi was not cross-examined about his version of this conversation. 78 While I accept that Dr Sklavos was giving evidence of what he now actually recalled about this interaction with Dr Artemi, I do not accept his perception of events to be accurate. It is highly unlikely that a person in Dr Artemi's position (he had been a dermatologist since 1999 and had known Dr Sklavos since 1997 and considered him to be a friend) would have threatened Dr Sklavos or said he had a file on him. Dr Artemi's version of the event is inherently plausible. It is consistent with the email which Dr Sklavos sent Dr Artemi, the tone and content of which are suggestive of the existence of a friendly relationship. Dr Sklavos's version is thus inherently implausible and inconsistent with such contemporaneous evidence as exists. Yet I do not consider Dr Sklavos was being untruthful when he gave his evidence by affidavit and orally. Whether at the time or subsequently, Dr Sklavos's perception and recollection of the event has taken on a character and significance which is consistent with a belief of a pattern of him being unfairly singled out, threatened and harassed by members of the College. It is difficult not to conclude that Dr Sklavos's perceptions are a result of the obsessive, narcissistic and paranoid personality traits which Professors Glozier and Samuels considered characterised his interactions with others (at least in a professional context). 79 Next, after many of the difficulties he had experienced during his training, the College arranged for Dr Sklavos to be placed in the private practice of Dr Younger, a very experienced dermatologist, at Campbelltown. Dr Sklavos felt that he thrived working at Dr Younger's practice. It appears that they had nothing but a close professional relationship for the entirety of their time working together. However, after Dr Sklavos failed the 2011 examinations, Dr Younger suggested to Dr Sklavos that he should try to become a dermatologist some other way. Dr Sklavos said that he was "devastated" to hear this. He took it to mean that he would never become a Fellow of the College. He wondered why Dr Younger had said this to him. He speculated that Dr Younger's comment might have been a message to him from prominent dermatologist (and later College President) Dr Shumack, noting that Dr Shumack's wife was "Dr Younger's wife's employer". Subsequently, when the arrangement between Dr Younger and Dr Sklavos came to an end in 2012, Dr Younger perceived this as a mutual decision on the basis that Dr Sklavos had been given all the practical training possible. Dr Sklavos, however, perceived it as part of the conspiracy of the College to deprive him of further dermatological training. In oral evidence he identified Dr Younger as part of this conspiracy, on the basis that Dr Younger was acting in accordance with the College's requirements. Dr Younger, unsurprisingly, denied this. 80 Viewed on any reasonable basis it is not difficult to understand why Dr Younger might have suggested to Dr Sklavos that he try another route to becoming a dermatologist. I have no doubt that Dr Younger suggested this only to assist Dr Sklavos and was not in any way delivering a covert message from the College that it would ensure Dr Sklavos never became a Fellow. Dr Sklavos's perceptions, and his apparent unwillingness to take any alternative course of action, appear consistent with the personality traits observed by Professors Glozier and Samuels. Further, the idea that Dr Younger, who had been so helpful to Dr Sklavos and had no reason to not want to see him succeed, was part of a conspiracy with other College members, on any reasonable view, is bizarre to say the least. Yet, again, however, I accept that Dr Sklavos genuinely believed what he was saying. I do not think that he was embellishing his evidence. The fact is that when a useful and sensible suggestion was made to him by Dr Younger, Dr Sklavos immediately perceived the suggestion to be part of the larger conspiracy (for which, it must be said, there is not a shred of actual evidence other than Dr Sklavos's perceptions) against him. This demonstrates the overall unreliability of Dr Sklavos's perceptions, coloured as they are by the dysfunctional personality traits the psychiatrists agreed he has and the subsequent unshakeable beliefs he developed about the College being involved in a conspiracy against him. 81 Further, Dr Sklavos attended the annual conference of the College in May 2012. Dr Fischer, who was a College member with whom Dr Sklavos had had dealings which he considered adverse to him, was giving a paper. Dr Sklavos saw her and had an anxiety reaction (which I do not doubt and do not find odd given his personality and specific phobia). He started to ruminate about his difficulties with the College (again, a reaction I do not find odd for the same reasons). But he then said that, while giving her paper, Dr Fischer made eye contact with him in the audience. He felt intimidated and connected this to his belief that Dr Fischer knew the College had succeeded in accomplishing the object of the perceived conspiracy (that is, Dr Sklavos never becoming a Fellow of the College). In oral evidence, Dr Sklavos confirmed that the audience was large, but could not accept the possibility that Dr Fischer might have been merely glancing around the room. Dr Fischer, again unsurprisingly, had no recollection of making eye contact with anyone during her presentation. 82 Dr Sklavos's evidence contains numerous examples of other perceptions of his that seem consistent with the personality traits observed by the psychiatrists including from before he became a trainee of the College and, when he was a trainee, before the clinic list incident. For example, according to Dr Sklavos, from the outset he felt the College selected trainees based on nepotistic practices. He felt isolated because he was from Newcastle. He found his PhD supervisor difficult. He felt trapped into completing his PhD or else he would not be admitted as a trainee of the College. He entered the College as a trainee already feeling aggrieved because admission as a trainee had taken so long. He had, by then, already started to consider that people within the College wanted to delay or prevent him from becoming a trainee. He also already wondered if he would be treated fairly as a trainee. He perceived Dr Relic's treatment of him at Newcastle Hospital in 2008 to be curt, rude, abrupt, disrespectful and hostile to him (this is before the clinic list incident). He found another dermatologist there also disrespectful and inappropriate towards him. Because of his perception of Dr Relic's hostility to him, he thought Dr Relic would review his letters with "a heightened level of scrutiny". He believed Dr Relic had singled him out and thought the direction that Registrars give Dr Relic copies of their letters was directed personally at him (which Dr Relic denied). He was so unnerved by one assessment he was given that he thought assessment results could be arbitrary, or even concocted, and thus started taking photographs of his surgical work (again, this is in 2008 before the clinic list incident). When asked about a letter to a general practitioner, he perceived the question to be "accusatory and confrontational". He felt he had "survived" 2008 but had been under "constant threat" all the year. He wondered whether Dr Relic's hostility to him was "linked to a plan for me which was proposed or approved by the College" (the plan, presumably being the alleged conspiracy). 83 Having regard to these matters, two points need to be made. First, while I accept Professor Glozier's evidence that medical doctors might have obsessive and narcissistic personality traits "in spades" which, in many cases, will be useful and functional for their careers, I do not consider that Dr Sklavos' combination of obsessive, narcissistic and paranoid personality traits was useful and functional for him. I accept Professor Samuels' evidence that, to the contrary, these traits proved to be dysfunctional for Dr Sklavos, and seriously so. I also accept the psychiatric evidence that these traits made him vulnerable to the development of an anxiety disorder in respect of the College. Indeed, it seems to me that, based on his own account of events, these personality traits made it highly likely that he would perceive any and every possible adverse event arising during his training as personally directed to him and to involve unfairness and hostility to him. As explained below, this creates a problem for the claims in contract and tort against the College which the case put for Dr Sklavos failed to confront. Second, while I accept that Dr Sklavos has given his evidence honestly about his perceptions and state of mind, I do not consider this evidence to be a reliable indicator of anything other than what Dr Sklavos perceived and thought. I consider it unlikely that what Dr Sklavos perceived and thought reflects any reasonable view of the reality of any situation involving the College. While Dr Sklavos was prepared to accept his feelings about the College made it difficult for him to be objective, he nevertheless considered his view of things to be accurate. I disagree. To the contrary, his evidence shows the strength of his tendency towards paranoia, a trait observed in him by both psychiatrists. I consider that this has substantially affected his perceptions and recollections of events to the point where, in a contest between Dr Sklavos and any other witness about what was said or what occurred, I prefer the evidence of the other witness. 2.4 Direct discrimination 2.4.1 Overview of Dr Sklavos's claims 84 Dr Sklavos's case is that there are three alternative adjustments the College should have made in response to his request before the 2012 examinations, identified as follows: (a) he could have been assessed by a method that did not involve the use of examinations conducted by the College (Adjustment One); or (b) the College's Fellowship examinations, as they applied to Dr Sklavos, could have been modified as set out in or by reference to Dr Sklavos's correspondence requesting adjustments on the basis of Dr de Saxe's recommendations (Adjustment Two); or alternatively, (c) he could have been assessed using a combination of workplace-based assessments that would have allowed for an assessment of his competence to practise, conducted in a manner that would minimise the symptoms of his disability (Adjustment Three). 85 It was contended that the failure to make each of these adjustments involved direct disability discrimination as defined in s 5(2) of the Disability Discrimination Act. 2.4.2 Adjustment One 86 It was submitted for Dr Sklavos that the College had adopted a restricted construction of what the submissions called Rule B of its Constitution (cl 11.1.1(a)(2)(B)) but, on its proper construction, "Rule B embraces any qualification that the Board might properly consider to be relevant, either alone or in combination with the candidate's experience". 87 Clause 11.1 of the Constitution deals with election as a Fellow of the College which is necessary before a person can hold themselves out to be a dermatologist. Clause 11.1, insofar as relevant, is in these terms: 11 MEMBERSHIP 11.1 Classes of Members The Members shall consist of the following classes: 11.1.1 Fellows (a) To be eligible for election as a Fellow a candidate must: (1) be a medical practitioner who holds a medical qualification approved by the Board for the purposes of this clause; and (2) either: (A) undertake and complete a training program approved by the Board and pass an examination by the College; or (B) in lieu of the training program and examination, have such other qualifications and experience as the Board considers adequate. (b) A candidate for election as a Fellow shall make application for the examination and application for membership in such form and containing such information as the Board may from time to time by Regulation have prescribed. (c) The Board shall consider the application for membership, the report and recommendation of the Board of Education and all relevant information in respect of the application for membership and in its absolute discretion may: (1) elect the candidate to membership; (2) reject the candidate's application; or (3) suspend final determination for further evidence as to the candidate's qualifications. 88 The submissions continued: Dr Sklavos has undergraduate and postgraduate degrees, and has been admitted to practice as a medical practitioner… … On or about 22 December 2011, Dr Sklavos sought election to the College as a Fellow based upon his qualifications and experience. His letter of 22 December 2011 provided a detailed account of his training, qualifications, experience and knowledge relevant to dermatology. He also asked the College to inform him if it required any further information in relation to those matters and, if appropriate, to identify any areas of shortfall in his qualifications and experience. The letter was explicit that Dr Sklavos was seeking election to Fellowship under Rule B. … At its 10 February 2012 meeting, the College's Board of Directors adopted the Board of Education recommendation and rejected Dr Sklavos's application for election as a Fellow, determining that he was required to pass the Fellowship examinations. The College conveyed its decision to reject Dr Sklavos's request for admission to Fellowship under Rule B by letter dated 21 February 2012. That letter also advised Dr Sklavos that the College would consider any reasonable request for special conditions in the examinations in 2012. (footnotes removed) 89 These circumstances were said to found the further submission that the College (whether through its Board of Education or its Board of Directors) never genuinely considered whether Dr Sklavos's qualifications and experience were sufficient for eligibility for Fellowship and never "made or considered making any request for Dr Sklavos to provide further information relevant to the issue, and … never indicated to Dr Sklavos any steps that Dr Sklavos might take to reach the required standard of proficiency and competence that the College might adopt to be satisfied as to that matter". 90 Further, according to the submissions, when the application for election as a Fellow relying on so-called Rule B was rejected and Dr Sklavos requested adjustments to the examinations, the College proposed limited adjustments in response because it did not accept that he was suffering from a specific phobia. While Dr Sklavos attempted to prepare for the 2012 examinations he withdrew as a result of the increasingly debilitating anxiety caused by his specific phobia. 91 I accept that Dr Sklavos's specific phobia, on and from at least January 2012 or possibly late 2011 (but not at the time he sat for the 2011 examinations when he was suffering from severe anxiety but not, in my view, the specific phobia), would adversely affect his performance in the examinations. As the evidence of the psychiatrists disclosed, anxiety is necessary for optimum performance. A person who is not anxious at all will not perform well. Performance tends to be adversely affected once anxiety has increased to a level which is counter-productive. I am not satisfied that Dr Sklavos's anxiety at the time of the 2011 examinations had reached this counter-productive level, although it was probably close to having done so. In any event, for present purposes it is sufficient to record that I am satisfied that by January 2012 his specific phobia made it difficult for him to study for the examinations, difficult to contemplate undergoing the examinations and, if he had sat for them, difficult to do his best in the examinations. 92 I accept that the College was put on notice of Dr Sklavos's specific phobia on or around 7 February 2012 when it was sent a copy of Dr de Saxe's report with a request that this report be considered as part of the College's consideration of Dr Sklavos's request that he be elected as a Fellow without having to undertake the examinations at all. It is important to appreciate, however, that in his report Dr de Saxe said this: Were he to be given special consideration by the College, this might, to some extent, ameliorate the anxiety. This would entail, for example, sitting the exams in another centre where he is less known, and being given extra examination time. 93 While Dr de Saxe considered that Dr Sklavos's performance in the examinations was likely to be sub-optimal, there is no suggestion in his report that, by reason of the specific phobia, Dr Sklavos should be excused from sitting the examinations altogether. Nor does the covering letter from the solicitor suggest that Dr de Saxe's report was supportive of Dr Sklavos being excused from having to sit the examinations. The letter said only that the report was relevant to Dr Sklavos's request. 94 The first point is that it is not the case that Dr Sklavos requested that he be elected as a Fellow of the College, based on the so-called Rule B, without having to pass the final examinations by reason of his specific phobia. That is not the effect of the covering letter from the solicitor or of the report of Dr de Saxe. To the contrary, Dr de Saxe's report contemplated that some adjustment might need to be made to the examination process for Dr Sklavos, not that Dr Sklavos would be relieved of having to sit the final examinations. 95 The second point is that I do not accept that the College's approach to Rule B of its Constitution involves any misconstruction. The College's approach to Rule B was that the reference therein to "such other qualifications and experience as the Board considers adequate" means such other qualifications and experience as a dermatologist. In other words, where a person has qualified as a dermatologist in another country, outside of the scope of the College's training program which applies Australia-wide, then Rule B is available. For people within Australia, however, the only method to become elected as a Fellow is so-called Rule A - undertake and complete a training program approved by the Board and pass an examination by the College. Given that Rule B vests in the Board alone the power to determine what qualifications and experience are considered to be adequate, it cannot be the case that the Board misconstrued Rule B by consistently considering only qualifications and experience as a dermatologist to be potentially adequate to engage Rule B. 96 The evidence establishes that no-one has ever been elected as a Fellow under Rule B, other than persons who had already qualified as dermatologists in another country. Even where such persons held qualifications as a dermatologist in another country, the evidence establishes that the College reserved the right to reject an application and to impose conditions on the applicant including supervised training programs. Dr Sklavos believes he is qualified to be a dermatologist but he had never been accepted by the College as having passed its final examinations. In this regard, while there is a dispute about the written examinations (Dr Sklavos thinks he passed in 2010 whereas the College does not) there is no dispute about the fact that he failed the 2010 clinical examinations. While, as Dr Baker said, the "end game is always competency", there is a material difference between recognising overseas qualifications as a dermatologist and recognising qualifications of a person who had not advanced beyond the stage of a trainee of the College and holds no qualification as a dermatologist. Dr Sklavos's PhD makes no difference in this regard. It was a research project. It did not involve him in treating people as a dermatologist. His training as a dermatologist was just that – training. Unlike the people elected as Fellows under Rule B, Dr Sklavos was not in fact a dermatologist. 97 The third point is that the pleaded case was that a person in Dr Sklavos's position, with his qualifications and experience, would have been assessed for election as a Fellow without any impairment on the capacity of that person to perform to the best of his or her ability. It is difficult to understand this proposition. Insofar as I am able to do so, it involves the idea that if a person with the qualifications and experience of Dr Sklavos but no disability had applied under Rule B, the College would have either approved the application or approved it conditionally by imposing requirements such as working under supervision for a period. The problem with this is that all of the evidence is to the contrary. It was clear that the College had never used Rule B other than for persons actually qualified as dermatologists outside Australia. 98 In written submissions, the case put for Dr Sklavos was somewhat different. That case appeared to assume that Dr Sklavos was necessarily being treated less favourably than a person without his disability in circumstances that are not materially different as required by s 5(2)(b) of the Disability Discrimination Act because persons qualified as dermatologists overseas, who might not have had to pass an examination, were elected as Fellows to the College under Rule B despite the College sometimes imposing conditions on such persons, such as periods of supervised training to ensure their competency. This assumption is also not sound. 99 It may be accepted that an overseas dermatologist might have obtained his or her dermatology qualifications without having passed any examinations. There might be some countries in which all assessment is work based (the evidence suggesting that perhaps New Zealand is one such country). But the relevant point is that the evidence supported the inference that every person who has been elected as a Fellow of the College under Rule B held qualifications as a dermatologist already from a country other than Australia. Whatever the way in which they have been assessed overseas for the purpose as admission as a dermatologist, they had all satisfied all components of the required assessment. 100 The real comparator with Dr Sklavos's situation, accordingly, is not an overseas dermatologist seeking to be elected as a Fellow of the College. A possible comparator is a person who has failed to obtain a dermatological qualification overseas (whether as a result of examinations or work based assessments or otherwise) who then applies to the College to be elected as Fellow. There is no suggestion that the College has ever used (or would contemplate using) Rule B in such a case. The fact that the College was willing to recognise overseas qualifications as a dermatologist, in some cases on the basis of requirements for periods of supervised training rather than having to sit the College's examinations, does not make these persons comparable to Dr Sklavos because in every such case those people already held qualifications as a dermatologist. 101 Another possible alternative comparator is a person who has failed the College's final examination but had the practical experience and qualifications that Dr Sklavos has. Again, the evidence was that the College had never used Rule B in any such case and would not do so. The requirement to pass its final examinations was, and is, applied by the College to all Australian trainees, irrespective of their experience or the holding of any other qualification. The relevant comparator is not, however, either a person who has qualified as a dermatologist overseas or in Australia (see, by analogy, Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [7]-[12] and [213]-[232]). 102 The consequence is that it cannot be accepted that the College's refusal to make Adjustment One meant or means that Dr Sklavos has been (or will be) treated less favourably than a person without the disability would be treated in circumstances that are not materially different. The College would have treated a person in the same position as Dr Sklavos without his disability in exactly the same way it treated Dr Sklavos. Section 5(2), accordingly, is not engaged. 103 The fourth (and related to the third) point is that the direct discrimination case put for Dr Sklavos has not grappled with the causation requirement in s 5(2). The evidence on causation is all to the same effect. The only reason that caused the College not to make Adjustment One was that it was not satisfied that Dr Sklavos was competent to practice as a dermatologist. Indeed, putting the proposition in the positive, it is plain that the College was satisfied that Dr Sklavos was not competent to practice as a dermatologist. Dr Sklavos's disability was irrelevant to the position of the College in refusing to make Adjustment One. Indeed, while the College was prepared to assume the existence of the disability for the purposes of Dr Sklavos's specific requests for certain adjustments to be made for him to undertake the examinations in 2012, the College never accepted that Dr Sklavos was suffering from any disability. In these circumstances, the reliance placed on direct discrimination in Dr Sklavos's case seems misplaced altogether. Nothing the College did or did not do was caused by Dr Sklavos's disability in the sense required by s 5(2). The College's requirement that all Australian trainees pass its final examinations was applied to every Australian trainee. The only object of the College in imposing that requirement on all Australian trainees, including Dr Sklavos, was so that the College had available a means whereby it could satisfy itself that the trainee was competent to practice as a dermatologist. 104 I do not accept the submissions for Dr Sklavos to the contrary. In particular, the "substantive outcome" (Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [241]) of the College not waiving its examination requirement is that Dr Sklavos was treated the same as, and equally to, someone in the same position as him who did not have the disability. There was "substantive equality" (Watts at [246]) because a trainee in exactly the same position as Dr Sklavos but without his disability would have been required to pass the final examinations. This cannot be avoided by pitching the case, as was done for Dr Sklavos, at such a high level of generality that any comparator is said to have been able to perform at the best of his or her ability, but Dr Sklavos was prevented from doing so because his phobia prevented him from doing his best in examinations. This is because it is clear from the evidence that the real comparator (a person who has completed the training program approved by the College Board, who has not passed an examination by the College as required by cl 11.1.1(a)(2)(A) of the College's Constitution, with the same or substantially the same level of qualifications and experience as Dr Sklavos and who does not have a disability affecting his or her capacity to be examined by means of the College's examinations) would not have been elected as a Fellow of the College without having passed the examinations. Election as a Fellow for an Australian trainee (the relevant comparator for Dr Sklavos) follows automatically from the College determining the trainee has passed the final examinations. It is the requirement to sit the examinations that is the relevant criterion or "treatment". That treatment applies equally to every Australian trainee. 105 In any event, I do not accept that Adjustment One was or is a reasonable adjustment. It was put for Dr Sklavos that the College had not adduced any evidence that hardship would be imposed on it by the adjustment so that the adjustment is deemed to be reasonable. There was evidence, however, that satisfies me that such an adjustment (if it be an adjustment, as to which, see below) would impose an unjustifiable hardship on the College. 106 The parties provided limited assistance on how the College fits within the broader scheme of the regulation of medical specialisation in Australia. For present purposes, it is sufficient to refer to certain provisions of the Health Insurance Act 1973 (Cth) (the HI Act) and the Health Insurance Regulations 1975 (Cth) (the HI Regulations). 107 By s 3D(1) of the HI Act, a "medical practitioner is taken to be recognised as a specialist in a particular specialty, for the purposes of this Act, if a relevant organisation in relation to the specialty gives the Chief Executive Medicare written notice stating that the medical practitioner meets the criteria for the specialty". Section 3D(2) provides that: A medical practitioner meets the criteria for a specialty if the medical practitioner: (a) is domiciled in Australia; and (b) is a fellow of a relevant organisation in relation to the specialty; and (c) has obtained, as a result of successfully completing an appropriate course of study, a relevant qualification in relation to the relevant organisation. 108 A relevant organisation "in relation to a specialty, means an organisation declared by the regulations to be a professional organisation in relation to the specialty". 109 Regulation 4 of the HI Regulations provides that relevant organisations and relevant qualifications are identified in the table in Schedule 4. Schedule 4, part 1, item 108 includes the College in respect of the qualification of Fellowship of the Australasian College of Dermatologists (FACD). A former President of the College, Dr Shumack, explained the role of the Australian Medical Council (the AMC) as follows: 29. The Australian Medical Council ("AMC") is an independent national standards body for medical education and training that (among other functions) develops accreditation standards, policies and procedures for medical programs of study and assesses, using the approved accreditation standards, medical programs and the institutions that provide them. 30. The Australian Medical Council (AMC) has assessed and accredited specialist medical education and training and professional development programs since 2002. From 2002 to July 2010, the AMC process for accreditation of specialist education and training programs was a voluntary process in which the College and all other specialist colleges had agreed to participate for quality improvement purposes. From 1 July 2010, the process became mandatory as the Health Practitioner Regulation National Law Act 2009 made the accreditation of specialist training programs an element of the process for approval of programs for the purposes of specialist registration. 31. The College last underwent the AMC's accreditation process last year [2013]. The College is due to be re-accredited in 4 years' time [2017]. The AMC's accreditation process is described in its document "Procedures for Assessment and Accreditation of Specialist Medical Education Programs and Professional Development Programs by the Australian Medical Council 2013", a copy of which is annexed and marked SPS8. 32. While the College is undergoing the AMC's assessment process, the AMC assigns to the College a committee which conducts the assessment. During this time, there is a very close relationship between the College and the AMC because conducting an assessment is a rigorous process that requires a significant amount of work on the part of the College and the AMC. In years where accreditation is not being conducted, the College is required to regularly report on certain matters to the AMC. These reports cover what progress the College is making in relation to any issues the AMC raised as areas further work during the last accreditation process. For example, one of the matters the College is currently reporting on to the AMC is a recommendation by the AMC that the College take steps to ensure greater representation of non-dermatologists on some of the College's committees. 110 The AMC's Procedures for Assessment and Accreditation of Specialist Medical Education Programs 2013 includes the following information: 2.1 Legislative Framework The AMC has been appointed to conduct accreditation functions under the Health Practitioner Regulation National Law (the National Law). This set of procedures relates to the following AMC accreditation functions: • acting as an external accreditation entity for the purposes of the Health Practitioner Regulation National Law; • developing accreditation standards, policies and procedures for specialist medical programs and continuing professional development programs based predominantly in Australia and New Zealand; • assessing medical education providers and specialist programs of study and continuing professional development programs based predominantly in Australia and New Zealand leading to specialist medical registration of the graduates of those programs to determine whether they meet the approved accreditation standards; • advising on the recognition of new medical specialties. The approved accreditation standards relevant for the accreditation assessments covered by these procedures are at http://www.amc.org.au/index.php/ar/sme. When the AMC assesses a program of study and the medical education provider against the approved accreditation standards and decides to grant accreditation, the AMC provides its accreditation report to the Medical Board of Australia. The Board makes a decision to approve or refuse the accredited program of study as providing a qualification for the purposes of registration to practise medicine. 111 The remainder of this document sets out detailed provisions for the assessment by the AMC of the education provider's training program, including procedures relating to the refusal of accreditation, ongoing monitoring, requirements the education provider must meet in order to continue to be accredited, and reviews of accreditation. 112 Dr Shumack also explained that the College is an organisation which has five regional faculties (NSW and the ACT, Victoria and Tasmania, Queensland, South Australia and Western Australia). Each faculty has to nominate one director to sit on the Board. He said further that: 20. …The Regional Faculties play a role in the operation of the College's training program in that each faculty appoints a Director of Training to manage trainee placements. Other duties which may be required to be fulfilled by a Regional Faculty include hosting of the Fellowship Examinations (the State where this takes places changes each year) and provision of representatives to the trainee selection committee. 21. The College has a large number of committees which manage different parts of the College's areas of operation. … 22. All committees which have an education brief report to the National Committee whose Chair, the Dean of Education, sits on the Board of Directors. The current Dean of Education [in 2014, was] Associate Professor Gayle Fischer. 23. The committees make recommendations to the Board in respect of issues that fall within its purview. The Board then considers the reports from the committees at Board meetings and makes a decision. Often the Board will adopt a recommendation made by a committee and makes a decision in accordance with that recommendation. However, occasionally, the Board will make a different decision to what has been recommended by a committee or it may also request further information from the committee prior to making a decision. 24. The members of the College are not employees of the College. Similarly, the Board and members sitting on the College's committees are not employees of the College. None of the members sitting on the Board or College committees are paid a salary or wage for doing so. … 26. The College employs approximately 11 administrative staff plus the College's Chief Executive Officer (who is not a Fellow or member). These employees carry out the decisions of the Board and the College committees and provide general administrative support to allow for the day-to-day functioning and operation of the College. 27. The College has a direct and on-going relationship with the hospitals (and some other institutions, such as the Skin and Cancer Foundations) in which it places its trainees into College-accredited training positions. These are paid positions in which the College's trainees may work in rotation as registrars. The institution is the trainee's employee for the time of the rotation and is responsible for that trainee's wages. 28. It is through these institutions that the College provides its training. The College ensures that the institutions in which trainees are placed will meet the requirements of the College's specialist training program. It does so by imposing an accreditation regime under which the institutions may be deemed as offering accredited training positions. While a trainee is undertaking his or her training under the College's program, he or she will only be placed in accredited training positions. … 113 In each year between about 20 to 30 people are elected as Fellows of the College, the vast majority of whom have competed the College's accredited training program. Dr Shumack described this process as follows: 33. There is no right to become a fellow of the College. The College admits persons as fellows only if the person meets the appropriate standards developed by the Fellows of the College over time so that Australian dermatologists can provide specialist medical services safely and competently to the public. 34. The first step to becoming a fellow of the College is to be accepted into the College training programme. 35. In order to become a trainee of the College in its program to train as a specialist dermatologist, candidates must undergo a selection process which takes into account different factors including the quality of a candidate's CV, references and performance at an interview. The candidates submit to the College an application form with various details including a CV and references, usually from Fellows of the College. Those applications are assessed and those candidates who rank best are then invited for an interview. The interview is conducted by a panel which includes Fellows and lay persons. The candidates are then ranked and those who rank best are offered trainee positions in accordance with the available number of trainee positions being admitted from each Regional Faculty. 36. Each year, the College appoints approximately 20 trainees. It may vary slightly from year to year. The number of available trainee positions is something which the College has no control over. The number of trainees is dictated by how many accredited training positions are available at the institutions providing those positions. This is essentially dependent on the level of government funding available to employ the trainees. Usually, New South Wales (which includes the ACT) has a trainee intake that ranges from 3 to 8 in any one year. Victoria (which includes Tasmania) usually appoints 2-5 trainees. Queensland appoints zero to 4 trainees. South Australia (incorporating the Northern Territory) and Western Australia usually appoint zero to 2 trainees each. 37. On successful completion of the College's training program, a trainee should be able to practice safely and independently as a specialist dermatologist. It is designed to cover all of the significant areas of dermatological medicine, in skills and knowledge, to allow trainees to achieve that level of competency. … 38. The College's training program is currently a four year program (up to around 2010, it was a 5 year program). Assessment takes place during the year through a Summative-In-Training Assessment Process [referred to as SITAs] whereby a trainee's progress is assessed with reference to certain learning areas. This is conducted with the trainee's supervisor in training and is designed to allow trainees to identify areas for improvement. At the end of the four year training program, trainees must successfully complete the Fellowship Examinations. 39. Once a trainee has passed the Fellowship Examinations, completed the training program and completed the College's other requirements (by which time trainees should have also completed other requirements such as their publications and log books) they are automatically presented to the Board for election as Fellows and, after election by the Board, the trainee becomes a Fellow of the College. The election process usually takes up to one week after completion of the Fellowship Examinations and training program. Trainees, however, need not do anything further once they successfully complete the Fellowship Examinations. … 114 The Fellows of the College who addressed the issue of Dr Sklavos's competence to be a dermatologist expressed the conclusion that because he had not passed the final examinations he had not demonstrated the required competence to practice as a dermatologist. For example, Dr Younger explained the following: "…he saw a mixture of all of the patients that would present to the practice, but they were all informed that he wasn't yet a fully fledged specialist, he hadn't passed his exams"; "…he was working at a level competent to his level of training"; "…I always believed he had to pass his exam, so he – I would believe he had had enough – well, he has had plenty of experience – been provided with plenty of experience, and he really needed to buckle down and pass his exam"; "…dermatology is an unusual part of medicine in that we do lots of physical things like removing little skin cancers and biopsies and things that other doctors don't do, and he was certainly very competent at that, but we also have this medical training in our scheme that requires lots of theoretical knowledge, knowledge of a whole range of medical problems… you can only become a fellow if you pass the… exams, the theoretical exams, and he hadn't done that, so… At the practical level, he's fine… If he had passed his exam, I would have no hesitation in… saying he was fine…– a lot of what we do in our jobs, we do very easily, and then there's that small bit which is very, very hard. So he had completed his four years training. He had been given all his training, all his opportunities…"; 115 Dr Younger also gave evidence in this exchange: And in relation to that, I think you described your particular practice at Campbelltown at the time as a general dermatology practice; correct? Yes, yes. And so it involved, is it right, general dermatology work such as dealing with melanomas, for example? Yes. Skin cancers? Yes. Other day to day conditions that many in the general population would confront in respect of dermatological conditions? Yes. And you would acknowledge that there were several other, more specific facets of dermatology that perhaps you wouldn't come across as frequently in your practice; is that right? Yes. Hospitals tend to have tertiary dermatology. We don't have very much of that… Okay? …in the community. And what does that particularly involve, Dr Younger? Just another level of – a high level of competence, I would say. So I imagine the same thing happens in the law. And practically speaking, in terms of someone that might visit a hospital for that type of treatment, what's an example of a condition that you can think of as you sit there that might be treated in that regard? Well, the very, very difficult cases that don't respond to traditional therapies. You know, so – and they're often referred to hospitals. We have dedicated clinics for very difficult problems. And this is why our registrars circulate the hospitals of Sydney, so that they get exposure to all the difficult and rare areas of dermatology, so – and you're less likely to get that in private practice. Yes. Particularly a private practice of a general kind? Yes. And am I right that the college's final examinations endeavour to test for the rarer conditions as well as the more general ones? Yes. Of course, yes. And endeavour to test for the conditions that come up for treatment less frequently in the community as well as the more common ones? Yes. 116 Dr Fischer recalled that, after the 2010 clinical examinations which Dr Sklavos failed, a number of examiners in the examiners' meeting described Dr Sklavos's performance as "unsafe" or "dangerous". She said: I've been an – I had, at that point, been an examiner for a decade and I had sat through very many exam meetings and seen many candidates fail over the years. And, in general, candidates fail because they simply don't know their work and they don't have enough knowledge. I had never heard a candidate described as dangerous or unsafe by so many examiners. 117 I do not find Dr Fischer's subsequent invitation to Dr Sklavos to re-sit the examinations on the basis that she believed he was capable of passing inconsistent with her view that, as at 2010, he was not safe to practice as a dermatologist. The College allows candidates to sit for the final examinations four times in a 10 year period. It must not be uncommon for some people to fail the final examinations and have to re-sit them. A candidate would have the benefit of an extra year's study and training before having to re-sit the examinations. A person assessed to be unsafe due to lack of competence one year might be assessed to be safe and competent the following year. As one of her emails said, Dr Fischer told Dr Sklavos that he needed a further year of "upskilling". There is no reason to think that Dr Fischer believed other than that Dr Sklavos was capable of passing the examinations if he applied himself in this further year of upskilling. Dr Sklavos was thus given the opportunity to which he was entitled by Dr Fischer's invitation to him to re-sit the examinations. 118 Despite suggestions to the contrary, nothing in the circumstances suggests anything improper on Dr Fischer's part in this regard. She did not like Dr Sklavos and, in one email (albeit sent in the aftermath of the massive undertaking which she had overseen as the College's then Chief Censor of arranging the College's examinations in 2010), said she "really can't stand him". She thought he was a "schmuck". Dr Fischer felt this way because Dr Sklavos personally had not made a good impression on her. While much was sought to be made of this in cross-examination of Dr Fischer, and it is readily understandable that Dr Sklavos might be upset by knowing Dr Fischer's personal opinion of him, all this is beside the point. The contemporaneous emails in which Dr Fischer expressed these opinions also consistently disclosed something else Dr Fischer believed. That is, no matter what she thought of Dr Sklavos personally, he had to be and would be treated fairly. Thus, Dr Fischer said "we need to help him as much as anyone" (that is, help him to pass the examinations). She said that, much as she did not like the idea of Dr Sklavos qualifying, "we have to give him as much support as the others". I do not accept that this meant that Dr Fischer simply did not want Dr Sklavos to qualify. Read in the context of her emails, and recognising that she was writing to others in the College involved in the examination process (or about to be), it is reasonably clear that Dr Fischer was firmly of the view that, as at the 2010 examinations, Dr Sklavos was not competent to practice as a dermatologist, that she could not countenance him practicing as such at that time, and that while she disliked him she thought that if he dedicated himself to another year's training he was capable of passing the examinations and thus becoming a dermatologist. Even if Dr Fischer is to be understood as expressing a view that she did not like the idea of Dr Sklavos qualifying even after a further year of upskilling because she personally disliked him, it is plain from the context that she is expressing a personal view of Dr Sklavos which Dr Fischer knew must not be permitted to have any effect on the way in which she dealt with Dr Sklavos so that he had to be given exactly the same help as every other trainee. I have no doubt that Dr Fischer acted consistently with these requirements at all times. 119 For present purposes, however, the key part of Dr Fischer's evidence is her firmly held view that Dr Sklavos's performance in the 2010 clinical examinations meant that he was not competent to practice, to the extent that he had been described to her by a number of the examiners as "dangerous" and "unsafe". The further year of upskilling which Dr Sklavos undertook did not result in him passing the written examinations in 2011, thus he was not invited to sit for the clinical examinations in that year. These circumstances provide a strong evidentiary foundation for the view taken by the College in 2012 that Dr Sklavos should not be admitted as a Fellow by reason not of his disability (which the College did not accept existed in any event) but by reason of his lack of competence. 120 Nor did I find the approach on behalf of Dr Sklavos to the raw marks given by examiners in the clinical examinations particularly helpful. First, the fact that some of the marking sheets show that the examiners might initially have passed Dr Sklavos in respect of one or other questions, but then decided that his performance was only a borderline pass or fail, does not support the inference that, in reality, he passed the question. It is the final assessment which matters. Second, the raw marks are not the basis the College uses for determining competency. Because there are so few candidates each year, the College uses a relative system of assessment. A candidate who is more than one standard deviation below the overall mean is taken to have failed the examinations. Dr Sklavos was assessed to have failed the 2010 clinical examinations, a fact about which there is no challenge. He also failed the written examinations in 2011. 121 Given that s 11(a) of the Disability Discrimination Act requires that "the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned" be taken into account in determining whether a hardship imposed on the alleged discriminator would be unjustifiable, the assessment of the College that Dr Sklavos was not competent to practice as a dermatologist in 2010 and 2011 is significant. I can see no reason why a detriment might not include potentialities such as risks to the public. The College is the body entrusted by the AMC with the education and qualification of dermatologists in Australia. The public is entitled to expect that the College will not confer Fellowship upon a person the College is not satisfied is competent to practice as a dermatologist. The evidence is that the persons responsible for assessment within the College had reached a clear view, through the examination process in 2010 and 2011, that Dr Sklavos was not then competent to practice as a dermatologist. 122 The notion that this was part of a conspiracy, although believed by Dr Sklavos, finds no foundation in the evidence. The Fellows of the College who gave evidence were plainly aware of the importance of the College diligently performing its function to ensure that only competent persons can be Fellows of the College. The election as a Fellow of Dr Sklavos in 2012 or thereafter, as he sought, would have involved the College in enabling Dr Sklavos to practice as a dermatologist when it did not in fact believe he was competent to do so. Irrespective of whether Dr Sklavos thought the College was wrong in this regard or motivated by malice against him (another belief for which there is no rational foundation), the fact is that the persons responsible within the College did not in 2010 or 2012, and do not currently, believe Dr Sklavos is competent to practice as a dermatologist. The basis for their belief is reasonable, even compelling, given the evidence. For the College to facilitate Dr Sklavos being registered to practice as a dermatologist, given this actual belief and the evidence supporting it, would have involved the College in a gross breach of the trust placed in the College by the AMC and the Australian public. The potential legal, reputational, functional and even existential risks to the College of engaging in such conduct, given its assessment of Dr Sklavos's lack of competence, would have been substantial. This is not mere speculation. Given the strict systems in place for accreditation of the College as the body responsible for educating and satisfying itself that a person is competent to practice as dermatologist, the fact (if it had been done) of the College electing as a Fellow an Australian trainee who had failed the College's own assessment procedures, let alone one who had been described as "unsafe" and "dangerous" in his clinical examinations in 2010, would have rightly called into question the College's suitability to continue to perform its functions. The kind of risks to which the College would have exposed itself by making Adjustment One involved unjustifiable hardship to the College. 123 It is no answer to this that the College might have placed Dr Sklavos under a program of continued supervision. As Dr Younger said, Dr Sklavos already had enormous supervised practical experience. But dermatology involves more than hands-on practice. It involves medical theory. It involves different degrees of complexity. A dermatologist in general practice has to know when a patient needs to be referred for highly specialised dermatological care (what Dr Younger called "tertiary dermatology"). The College's examinations are designed to ensure competency across this full spectrum. No-one explained how Dr Sklavos, a person who had already had the benefit of a vast amount of supervised training, could have benefited from yet more training to ensure his competency across the full spectrum. The idea that the College, the Fellows of which design and manage the education program on a voluntary basis, should also design and supervise an individual program of yet more supervised training for Dr Sklavos, in my view, itself involves an unjustifiable hardship. 124 I also consider that the risks to all people who might thereafter have been one of Dr Sklavos's dermatological patients constitute an unjustifiable hardship. Every potential patient of Dr Sklavos if he were elected as a Fellow of the College is a "person concerned" for the purpose of assessing detriment within the meaning of s 5(2)(b). Unbeknownst to such people (at least until some problem arose), if Dr Sklavos were made a Fellow, they would be seeing what I infer would be the only dermatologist trained in Australia who had not passed the College's final examinations, and the only dermatologist elected as a Fellow that the responsible College considered to be not competent to practice. This involves at least two kinds of detriment. The first kind of detriment is lack of information. Potential patients are entitled to assume that a specialist has not been permitted to be registered as such unless the responsible body is satisfied that the specialist is competent to practice. The second kind of detriment is a risk to safety. If not considered by the responsible body to be competent to practice as a dermatologist despite having been given an abundance of supervised practical training, then Dr Sklavos should not be permitted to practice as a dermatologist. I cannot see how the capacity of the College to ensure an overseas qualified dermatologist undergoes further training or supervised practice in Australia as a condition of election involves circumstances that are not materially different from those of Dr Sklavos. Dr Sklavos has already had the benefit of all the training and supervised practice the College makes available to its trainees. Therefore, on this basis also, the adjustment involved by Dr Sklavos being elected as a Fellow under Rule B involves unjustifiable hardship to every member of the class of persons who are potential dermatological patients of Dr Sklavos. 125 Finally, I am not satisfied that election as a Fellow of the College under Rule B of its Constitution involves "an adjustment to be made by a person" as required by the definition of "reasonable adjustment". The requirement that applies to all Australian trainees is that they pass the College's final examinations. Seeking election under Rule B involves by-passing the examination requirement for an Australian trainee in an attempt to rely on a rule which pre-supposes the applicant holds qualifications and experience that the Board considers adequate. The Board only considers qualifications and experience as a dermatologist overseas as potentially adequate on the basis, I infer, that such a person has necessarily already satisfied all training and assessment requirements that applied to them in the relevant country. For Dr Sklavos, who has not satisfied all training and assessment requirements that apply to him in his country, to be elected as a Fellow does not involve any adjustment (that is, modification) to the requirement that he pass the College's final examinations. It involves the requirement being by-passed or abandoned altogether. 126 The submission that was put for Dr Sklavos exposes the failure of the case put for him to grapple with the requirements of a comparator and causation. The submission was that: Adjustment One was available, and could have been used to assess Dr Sklavos's eligibility for Fellowship. In the absence of unjustifiable hardship the Act deems it to be reasonable. Whether Dr Sklavos would have been assessed as eligible for Fellowship if this method had been genuinely applied to him is not relevant to the question of whether it constitutes a 'reasonable adjustment' (although it may be relevant to the assessment of his damages). 127 This overlooks the critical requirements of s 5(2) that "the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different". The fact that the College could have made Adjustment One (at least in theory, albeit that I consider to do so would have involved the College in a grave dereliction of its responsibilities) does not answer the statutory test. It is not the case that the failure to make any adjustment which could be made if the adjustment does not necessarily involve unjustifiable hardship satisfies the requirements of s 5(2) in respect of direct discrimination. The case put for Dr Sklavos does not confront the actual requirements of s 5(2). 128 For these reasons, I do not accept that in not making or proposing to make Adjustment One the College discriminated against Dr Sklavos as provided for in s 5(2) of the Disability Discrimination Act. 2.4.3 Adjustment Two 129 Adjustment Two is said to involve the adjustments to the examinations in 2012 in fact sought by Dr Sklavos from the College in his letter dated 5 April 2012. 130 One aspect of the proposed adjustments can be dispensed with immediately. Based on Dr de Saxe's report, Dr Sklavos requested that he be provided with an explanation for the events involved in the clinic list incident in 2009. This is not an adjustment at all. It is a matter unconnected with any requirement of the College that Dr Sklavos pass the College's final examinations. Given that the definition of "reasonable adjustment" involves the concept of an "adjustment", I do not see how this aspect of the request fits within the scheme of the Disability Discrimination Act at all. 131 Whether or not this is so, I consider that Adjustment Two confronts the same difficulties about causation and the relevant comparator as Adjustment One. 132 The relevant comparator is a trainee of the College who has not passed the College's final examinations. Even if, as Dr Sklavos maintains, the comparator is taken to have nearly passed the written examination in 2010, the College's requirement that a person in Dr Sklavos's position in 2012 sit for and pass all components of the written examination applied generally. The College's refusal to waive any part of its examination requirements was not caused by Dr Sklavos's disability. It was caused only by the College's position at that time that, in order for it to be satisfied that a trainee had demonstrated competence, the trainee had to pass all aspects of the Fellowship examinations. It follows that Dr Sklavos was not, because of his disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. 133 Consistent with the discussion above, I am also satisfied that any adjustment which involved Dr Sklavos not having to sit for the whole or part of the written examination in 2012 would impose an unjustifiable hardship on the College and the members of the public within the class of future patients of Dr Sklavos if he were to practice as a dermatologist. The College would not have granted any such request by a person otherwise in Dr Sklavos's position but without his specific phobia and thus s 5(2) is not satisfied. 134 Otherwise, I accept that Dr Sklavos sought "adjustments" for the purposes of the Disability Discrimination Act. 135 Through a series of communications, the College responded to Dr Sklavos's request of 5 April 2012. For present purposes, a table provided for the College, which I consider to be accurate, can be used to compare what he had sought over time with what the College offered. The table is as follows: No. Specific adjustment requested in relation to the 2012 final Fellowship examinations Date Nature of Adjustments Offered by the College Offered 1. a) Waiver of the requirement for Dr Sklavos to re-sit the written Fellowship exams (or alternately the requirement to undertake and pass DMI and DMII); 3.5.12 a) Fellowship Written Papers – for each written examination paper Dr Sklavos be provided with breaks, to a length of his choice, but not exceeding in total 25 minutes, a private room, and/or a personal invigilator. However, the total time spent on answering the examination questions will not exceed the total time of 3 hours, being that set for all candidates. Note: during these breaks Dr Sklavos was not to be permitted to leave the examination precinct without supervision. The invigilator was to be a non-Fellow of the College, agreed to in advance with the College and such agreement will not be unreasonably withheld. Should Dr Sklavos elect to have a private room and a personal invigilator, he would be required to meet the costs involved; b) Increased time to complete the exams; b) The Histopathology and Dermoscopy Clinical Viva held on 21 July 2012 – Dr Sklavos be permitted to sit the viva in another State; c) No examiners from New South Wales used as an examiner and/or be present; and c) Fellowship Clinical Vivas – requests for breaks between long case stations of greater than 30 minutes were to be considered and accommodated where possible, within the limitations of the examinations timetable; d) On 5 April 2012, in reliance on a report from Dr de Saxe dated 30 March 2012 (see particularly page 3 of that report), the Applicant sought "a reasonable explanation… of all the circumstances surrounding the 'clinic list incident'…" (as also set out on page 2 of the Applicant's 5 April 2012 letter); d) The College arranged for an independent medically-trained (specialist) observer (being a paediatrician based in Adelaide from another College) to sit through the Fellowship Clinical Vivas and attend the examiners' meetings; e) A medical practitioner nominated by, and representing, the Australian Medical Council (AMC) be present as an observer through the examination and while Dr Sklavos is being assessed and evaluated by the examiners; e) Dr Sklavos was provided with a list of examiners, and invited to object to any particular examiner; f) That the marking rubric or other document addressing the method or criteria for the assessment and evaluation of Dr Sklavos' performance be provided to the AMC before any examination, and if Dr Sklavos is assessed as not having passed any relevant examination, the result shall not be recorded, and shall have no effect, unless the AMC certifies that it is satisfied that the assessment validity, reliability and fairness is appropriate in the circumstances; and f) In the correspondence, the College also flagged: g) That Dr Sklavos be "chaperoned" by an impartial colleague from the AMC during viva voce examinations. i. The possibility of arranging that, except for 1 of 2 examiners in one room (of 3 rooms in which long case vivas were to take place), that it could be arranged that NSW examiners would not examine Dr Sklavos in the long case vivas; and ii. Neither NSW examiner examining Dr Sklavos in the short case vivas; and one or both NSW examiners being absented from the examiners' meeting when the specific results of Dr Sklavos were to be discussed. 2. a) Seek breaks of up to 25 minutes in total during each of the written papers, perform the written examinations in a private room (subject to the costs being reasonable) and if necessary, a personal invigilator also 16.5.12 a) The College agreed to breaks of up to 25 minutes and the use of a private room and invigilator, such costs to be met by Dr Sklavos b) Sit the Histopathology and Dermoscopy Clinical Viva in another State b) Dr Sklavos was offered to sit the Histopathology and Dermoscopy Clinical Viva in either Brisbane or Melbourne (as opposed to Sydney) c) That Dr Bob Corderoy and Dr Gayle Fischer not participate in the assessment of Dr Sklavos' clinical viva examinations, including being involved in the examiners' meeting while Dr Sklavos' results are being discussed c) If Dr Sklavos qualified to sit the Fellowship Clinical Vivas, the College agreed that Dr Corderoy would: i. Not participate in Dr Sklavos' assessment during the clinical examination (noting that Dr Corderoy would not have a role in those in any event); ii. Not observe any of Dr Sklavos' viva stations; iii. Be absent from the examiners' meeting while Dr Sklavos' results were being discussed in unidentified and identified form. Note: Gayle Fischer had as at 2012 been replaced by Tim Elliott as Chief Examiner and was not to be participating in any trainee's assessment in relation to the 2012 Fellowship Examinations (and this was indicated to Dr Sklavos). d) To the extent to which it is also possible, that one or both of the NSW examiners not be involved in examining Dr Sklavos in the long case vivas, or in the short case vivas, and to be excluded from the examiners meeting while Dr Sklavos' results are being discussed d) If Dr Sklavos qualified to sit the Fellowship Clinical Vivas, an independent medically-trained specialist observer from Adelaide, was to be present, and: i. Long Case vivas – 1 of 2 NSW examiners (in fact there was only one from NSW and one from the ACT, the latter being Dr Drummond) was to be absented from being involved in examining Dr Sklavos – this was Dr Duncan Stanford. The other doctor (Dr Drummond) was to examine Dr Sklavos in one of three long cases; ii. Short case vivas – Neither Dr Stanford, nor Dr Drummond were to examine Dr Sklavos in the short case vivas; iii. Examiners' meeting – Both NSW and ACT based examiners were to be absented when Dr Sklavos' results are being discussed, including as to Dr Sklavos' pass/fail status, however this did not extend to these examiners being excluded from the examiners' meeting during stages where the entire cohort's results were to be discussed or at the stage of de-identified candidate discussion. 136 It will be apparent that the College did not waive any requirement to sit the written examinations. Nor did it provide an explanation of the clinic list incident. Those matters have been discussed above. Otherwise, the College met all of Dr Sklavos's requests as ultimately pursued by him in his letter of 5 April 2012 (in which he confined his requests) other than: the independent observer of the clinical examinations was to be a medically-trained (specialist) from Adelaide not from the AMC; one examiner from NSW would be involved in one of the three long case vivas; and the examiners in NSW would be involved in the examiners' meeting when the entire cohort's results were to be discussed, or at the stage of de-identified candidate discussion, but not during discussion of Dr Sklavos's results. 137 In these circumstances, the first difficulty for Dr Sklavos is again one of causation. It was accepted for Dr Sklavos that: [i]t is relevant to enquire whether the adjustments proposed by Dr Sklavos would be likely to have ameliorated the symptoms and consequences of his Specific Phobia, because unless they could do so the College's failure to make them could not, within the meaning of s.5(2)(b), have had the effect that because of his disability he was treated less favourably than a person without his disability would be treated. It is submitted that the evidence establishes that the adjustments proposed by Dr Sklavos would be likely to have ameliorated the symptoms and consequences of his Specific Phobia. 138 Given the existence of Dr Sklavos's specific phobia by January 2012, I am not persuaded on the evidence that anything the College could have done in 2012, other than waiving the requirement for Dr Sklavos to sit any of the examinations, would have made any difference to Dr Sklavos in 2012. It may be accepted that Professor Glozier said that the person with the disability is usually best placed to know what adjustments will assist them. But this is a case where the disability relates directly to the requirement. It is a specific phobia about the very requirement in respect of which adjustments were sought. In these circumstances, and given that Dr Sklavos ultimately could not sit the examinations at all in 2012 by reason of his disability, I am unable to accept that if the College had simply accepted all of Dr Sklavos's proposals (other than waiver of the examinations) Dr Sklavos would have been in any different position. In other words, given the nature of Dr Sklavos's disability and how it relates to the requirement of the College, I am not persuaded that the failure of the College to do anything less than waiver of the examinations "has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different". 139 It follows that I do not accept that Dr Sklavos's opinion that had the College simply done as he asked in respect of all adjustments (excluding the waiver) he would then have been in a different position from the one he was in in 2012. I note that this is supported by Professor Glozier who said that "actually I doubt whether any accommodation would enable him to reduce his level of anxiety to that of a normal person who has not had such experiences". If the College had agreed to the AMC observer in the clinical examinations and that no NSW examiner be involved in any part of the clinical examinations of Dr Sklavos, the evidence does not suggest that these matters could have put Dr Sklavos in any materially different position. The College agreed that an independent medically-trained (specialist) observer from Adelaide would observe the clinical vivas and attend the examiners' meetings. There is no logical reason why this arrangement would have been any less likely to ameliorate Dr Sklavos's anxiety symptoms than an observer from the AMC. 140 Further, I accept Dr Fischer's evidence that arranging the final examinations is a substantial undertaking for the College and the dermatologists who volunteer their time to act as arrangers and examiners of the examinations. While the College has not proved that arranging for examiners from outside NSW to test Dr Sklavos in all parts of the clinical examinations involves unjustifiable hardship, I am prepared to infer that excluding the NSW examiners from the discussions of examiners about the cohort as a whole would involve unjustifiable hardship. Other trainees were being examined by examiners from NSW. Those examiners had to be permitted to be involved in the discussion relating to the cohort or else the entire clinical examinations could miscarry to the detriment of all involved in that process including other trainees. What this leaves is Dr Sklavos's desire not to be examined in any respect by a NSW examiner and the College's proposal to have him examined in one long-case viva by a NSW examiner. 141 It is difficult to accept that this adjustment could have made any difference. It was put for Dr Sklavos that his conviction that Fellows of the College were involved in a conspiracy against him meant that having an AMC observer would have reduced his anxiety so that he could sit the 2012 examinations. Given the College's agreement to have another independent observer unconnected to the College present, I do not accept that submission. But Dr Sklavos's conviction that the College was involved in a conspiracy against him supports the conclusion that nothing the College could have done, other than waive its examination requirements altogether, could have assisted Dr Sklavos in 2012. It is implausible that, given his personality traits and beliefs in 2012, there would be any difference for Dr Sklavos in having no NSW examiners or one in respect of one part of the clinical examinations. 142 Dr Sklavos's response to the College's proposals confirms this conclusion. Given the contents of the table set out above there cannot be any real doubt that, despite its scepticism about Dr Sklavos suffering from the specific phobia, the College was prepared to make substantial adjustments in its attempts to enable Dr Sklavos to sit the examinations in 2012 on a playing field level with all other trainees. Yet Dr Sklavos saw the College's response as "insincere and almost mocking", and this too inflamed his anxiety and mistrust of the College. 143 Contrary to the submissions put for Dr Sklavos, the suggestion that the College's proposed adjustments were insincere or mocking of him finds no foundation in the evidence. The fact that the College was sceptical about the disability does not mean that it failed to engage with Dr Sklavos assuming the existence of the disability and in good faith. In working out what adjustments should be made, the College was entitled to have regard to the impact on itself. The fact that its communications with Dr Sklavos use the language of compromise does not suggest insincerity. If anything, it suggests the genuineness of the College's attempts to try to reach a solution with Dr Sklavos. Despite this, Dr Sklavos perceived the College to be insincere and his anxiety worsened as a result. I consider this supports my conclusion that there is nothing the College could have done which would have made any difference to Dr Sklavos's positon in 2012, other than waive its examination requirements altogether. Another fact which supports this conclusion is that, although the College met all of Dr Sklavos's requests in respect of the written examination (the few matters where it did not fully meet his requests relating to the clinical examinations only, once waiver and an explanation for the clinic list incident are put to one side), he withdrew from the examinations altogether in 2012. He did not attempt to sit for the written examination. 144 The final point that should be made in this regard is that Dr Sklavos's disability is one thing; his personality traits and conspiracy beliefs are another. I accept that his conspiracy beliefs are genuine (as already said). I accept also that his conspiracy beliefs are related to his development of a specific phobia (as the submissions for Dr Sklavos put it "the evidence…establishes the intimate connection between Dr Sklavos's Specific Phobia and his conviction that senior and influential figures in the College were conspiring against him"). However, his specific phobia was fear about sitting the College's examinations (and is now fear about any assessment by the College). Whatever the College did in 2012, Dr Sklavos's conspiracy beliefs (which persist) would have remained unaffected. Given this and the fact that, ultimately, it is the College's examinations which he had to sit and pass, the notion that the College could have done anything for Dr Sklavos in or after 2012 except waive its examination requirements is implausible. As such, once the notion of waiver is put to one side, it cannot be concluded that the adjustments he requested would have made any difference had they been made. He still would be a person suffering from a specific phobia about sitting the College's examinations who had to sit those examinations if he wished to be elected a Fellow of the College. 145 The reliance in the submissions for Dr Sklavos on communications between Dr Fischer and Dr Elliott as expressing "their real views about the need to make adjustments for disabled candidates" is misconceived. No doubt, with hindsight, Dr Fischer and Dr Elliott (who were responsible for the examinations in successive years as Chief Censor) would have preferred it if they had not made comments in emails between them expressing their incredulity that a trainee with a form of dyslexia and another with narcolepsy had managed to pass all medical examinations and post-graduate requirements before application could be made to the College to be accepted as a trainee. Similarly, it may be accepted that describing these trainees as "attempting to pull the wool over our eyes" and involving them in "this sort of crap" is unfortunate. A number of other observations should be made, however. 146 First, it is not the case that emails uniformly disclose a person's true opinion because they are being unguarded. To the contrary, because many people are unguarded in what they think of as private email communications, their language is often less well considered than might otherwise be the case. Email content is more likely to be extreme for the sake of the making of a point, or for humour, than a considered communication reflecting the person's real views. The emails between Dr Fischer and Dr Elliott bear these hallmarks. 147 Second, and most importantly, it was clear from the emails themselves, and not just the evidence of Dr Fischer and Dr Elliott, that no matter what they personally felt about the validity of some of the applications for adjustments to the examination requirements, every application would be treated properly. Dr Elliott said that "it behoves us to go thru the due process" and I have no doubt he meant it. Dr Fischer in her email in reply to Dr Elliott said "which we will". 148 Third, while the language is inflammatory and regrettable, the subject-matter is relevant. Trainees of the College are already medical doctors. They must have already sat and passed numerous examinations and performed adequately under difficult circumstances. The kinds of disability of dyslexia and narcolepsy probably are surprising in a person who had managed to qualify as a medical doctor. 149 It follows that I do not accept the submission that: This is of a piece with their approach to other requests for special consideration made at about the same time by other candidates. 150 In fact, the evidence discloses that even where the College was sceptical about certain claimed disabilities and associated adjustments to examination requirements (including that of Dr Sklavos, but also about the trainees with dyslexia and narcolepsy), the responsible Fellows gave real consideration to the requests, assuming in favour of the trainee the existence of the disability, and made adjustments largely (even if not entirely as in the case of Dr Sklavos, leaving aside the examination waiver request) as had been sought. 151 For these reasons, I do not accept that the College's failure to make the adjustments Dr Sklavos had pursued in relation to the 2012 examinations had the effect that, because of his disability, he was treated less favourably than a person without the disability would be treated in circumstances that are not materially different. Waiver of the examinations was not a reasonable adjustment. Yet nothing less than waiver would have placed Dr Sklavos in any different position in 2012. 2.4.4 Adjustment Three 152 Adjustment Three involves the proposition that, although he made no request to this effect in 2012, the College ought then to have proposed to waive the examination requirements in favour of a system of workplace based assessments of Dr Sklavos. 153 In reality, this is no different from Adjustment One and all of the reasons why I do not accept that the case of direct discrimination based on Adjustment One has been made out apply equally to Adjustment Three. None of the submissions put for Dr Sklavos about the availability of workplace based assessments, their capacity to enable an assessment of competence, or Dr Sklavos's belief that in 2012 he could have subjected himself to workplace based assessments, affect the applicability of my conclusions about Adjustment One to Adjustment Three. In short, Dr Sklavos's case fails in both respects on the basis of causation and less favourable treatment than a relevant comparator. 154 In addition, it is one thing to accept the proposition put for Dr Sklavos that the Disability Discrimination Act "does not constitute the aggrieved person the exclusive and definitive arbiter of what adjustments should have been made by the discriminator". It is another to accept that the putative discriminator has to conceive of every possible adjustment whether or not sought by the aggrieved person. The concept of a "failure to make the reasonable adjustments" in s 5(2) indicates that there must exist some circumstance calling for action by the putative discriminator. If, for example, Dr Sklavos had requested that he be the subject of a regime of workplace based assessments instead of examination then the College could have considered, for example, whether that would involve unjustifiable hardship. If, in such a case, the College had refused to do so then there would exist some "failure" to which s 5(2) could attach. As it is, however, what is now put is that, although Dr Sklavos made specific requests (waiver and, if not, other matters) and the College dealt with those requests, the College nevertheless has failed to make reasonable adjustments because it did not unilaterally suggest something else altogether (workplace based assessments). I have considerable difficulty accepting that these factual circumstances are capable of engaging s 5(2), which pre-supposes the existence of some failure on the part of the discriminator. 155 Insofar as it is necessary to say more, I accept that it is more likely than not that Dr Sklavos would have been able to initially agree to subject himself to workplace based assessments in 2012. I do not accept, however, that all of these assessments could have been conducted in Dr Younger's practice which was a general dermatology clinic only. If this had been done, the assessments would have been too limited to demonstrate competency. Other arrangements, which were not explored in the evidence, would have been required to ensure that the assessments covered the same substantive material as the College's examinations. If such assessments could have been devised (as to which, see below) and had been carried out, moreover, I consider that it is unlikely that Dr Sklavos could have performed satisfactorily in those workplace based assessments given his performance in the 2010 and 2011 examinations and the fact that, ultimately, it would be the College which was responsible for determining satisfactory progress by Dr Sklavos in circumstances where, over time, his phobia about the College has expanded and become more debilitating to him. 2.4.5 Conclusions 156 In my view, the case for direct discrimination relying on s 5(2) of the Disability Discrimination Act cannot be sustained. The essence of the case attempts to take the College's refusal to waive a requirement (passing the College's final examinations) which applies to all Australian trainees equally for the sole purpose of ensuring competency to practice as a dermatologist as the foundation for an allegation of direct discrimination. In so doing, the case fails to grapple with the fact that, on the evidence, a person in the same circumstances as Dr Sklavos but without the disability would be subject to exactly the same requirement. Accordingly, it cannot be said that the College's refusal to waive any part of its examination requirements has or would have had the effect of treating Dr Sklavos, because of his disability, less favourably than a person without the disability would be treated in circumstances that are not materially different. 2.5 Indirect disability discrimination 2.5.1 Overview of Dr Sklavos's claims 157 Dr Sklavos relies on both ss 6(1) and (2) of the Disability Discrimination Act. Section 6(1) concerns a person who does not comply with a requirement or condition because of the person's disability where the requirement or condition has the effect of disadvantaging the person with the disability. Section 6(2) concerns a person who because of the person's disability would be able to comply with a requirement or condition if reasonable adjustments were made but the discriminator does not do so or proposes not to do so and that failure has the relevant disadvantaging effect. 158 It will be apparent that s 6, the indirect discrimination provision, involves requirements or conditions which appear fair or equal but which have a different impact on a person with a disability because of their disability. On this basis, it should be evident that Dr Sklavos's case is one which is more likely to find some traction in the indirect discrimination provisions than the direct discrimination provisions. This is because the College's examination requirements are facially neutral. They apply equally to all Australian trainees. As explained above, this makes it impossible to accept Dr Sklavos's case of direct disability discrimination because nothing the College did was because of Dr Sklavos's disability. The College did what it did because it perceived (rightly) that it was responsible for ensuring only competent persons could practice as dermatologists and it did not accept (reasonably) that Dr Sklavos was competent. It did not accept that Dr Sklavos was competent because he had not passed the College's final examinations (leaving aside, for this purpose, the dispute about the written examinations). 2.5.2 Elements of the statutory provisions 159 Sections 6(1) and 6(2) each involve the discriminator requiring compliance with a "requirement" or "condition". The College concedes this element is established. On the evidence, it is clear that it is a requirement or condition of the College that, in order to be elected as a Fellow (necessary so that he can practice as a dermatologist), Dr Sklavos must pass the College's final examinations. 160 Section 6(1)(b) relates to cases where the disabled person is not able to comply with the requirement or condition at all, whereas s 6(2)(b) relates to cases where the disabled person is able to comply with requirement or condition but only if adjustments are made. As such, there cannot be discrimination under both ss 6(1) and 6(2). The provisions operate in the alternative. 161 In the present case, and based on the discussion above relating to the adjustments the College offered, I do not accept Dr Sklavos's case that he was or would have been able to sit the final examinations in 2012 if the College had simply done as he asked. In other words, I consider this to be a case arising under s 6(1), not s 6(2). In common with Professor Glozier, given the nature of Dr Sklavos's specific phobia, I consider that there is nothing the College could have done in 2012 or thereafter to enable Dr Sklavos to comply with the examination requirement other than waiving that requirement altogether. There is no dispute that, when confronted with the 2012 examinations, Dr Sklavos's anxiety increased as the examinations approached. He ended up in a severe anxiety state. His condition was such that he withdrew from the 2012 examinations. Given Dr Sklavos's history, the idea that he would have done so if he was in fact able to take the examinations (not suggested by the College) may be dismissed. Even if Dr Sklavos secretly believed that he was likely to fail the examinations (highly unlikely given Dr Sklavos's apparent self-belief, the psychiatrists' view about his narcissistic personality tendencies, and also not suggested by the College and certainly not conceded by Dr Sklavos), everything else in the evidence indicates that had he been able to do so he would have taken the 2012 examinations. As a result, I have no doubt that Dr Sklavos withdrew from the 2012 examinations because, by reason of his specific phobia, he was unable to take those examinations. That he might have been capable of taking the examinations at serious risk to his mental health does not, in my view, mean that he would be able to comply with the requirement. 162 In this regard it is sufficient to refer to Rees N, Rice S and Allen D, Australian Anti-Discrimination Law (2nd ed, Federation Press, 2014) at [4.3.38] where this is stated: The issue of whether a person is unable to comply with a requirement of condition is a question of fact. While the statutory language which is used to connote 'inability to comply' with the challenged requirement or condition is not uniform, there do not appear to be any differences of substance. Most of the statutes deal with this issue by use of the words 'does not or is not able to comply'. The decision of the House of Lords in Mandla v Dowell Lee [[1983] 2 AC 548] is authority for the proposition that a person's inability to comply with a particular requirement or condition is to be judged practically. In that case the condition in question was a rule imposed by a school that students were not permitted to wear a turban whilst in school uniform. An issue in the case was whether the complainant, who was an orthodox Sikh boy, was unable to comply with that condition because he was physically able to attend the school without a turban on his head. While the precise language employed in the Race Relations Act 1976 (UK) was that the requirement or condition was detrimental to the complainant 'because he cannot comply with it' [Section 1(1)(b)], the general statements made by members of the House of Lords concerning inability to comply are of relevance when considering this fourth element of indirect discrimination in Australian anti-discrimination law. Lord Fraser of Tullybelton said: It is obvious that Sikhs, like anyone else, 'can' refrain from wearing a turban, if 'can' is construed literally. But if the broad cultural/historic meaning of ethnic is the appropriate meaning of the word in the Act of 1976, then a literal reading of the word 'can' would deprive Sikhs and members of other groups defined by reference to their ethnic origins of much of the protection which Parliament evidently intended the Act to afford them. They 'can' comply with almost any requirement or condition if they are willing to give up their distinctive customs and cultural rules … The word 'can' is used with many shades of meaning. In the context of section 1(1)(b)(i) of the Act of 1976 it must, in my opinion, have been intended by Parliament to be read not as meaning 'can physically', so as to indicate a theoretical possibility, but as meaning 'can in practice' or 'can consistently with the customs and cultural conditions of the racial group' …Accordingly I am of opinion that the 'No turban' rule was not one with which the second appellant could, in the relevant sense, comply [[1983] 2 AC 548 at 565-566]. Australian courts have tended to follow this liberal approach to the question of whether the complainant is unable to comply with the requirement or condition in question. 163 Applying this approach, it is not practical that Dr Sklavos seriously compromise his mental health by forcing himself to take the College's examinations about which he has developed a specific phobia. Despite his belief to the contrary, I am satisfied also that it was not practical for Dr Sklavos to do so in 2012. As I have said, the idea that because the College did not meet all his required adjustments (albeit in the relatively minor respects I have identified once the demand for an explanation of the clinic list incident and waiver of the examinations altogether are put to one side, as they should be), Dr Sklavos experienced such severe anxiety in 2012 that he had to withdraw from the examinations - but that had all such adjustments been made he would have been able to sit for the examinations - in my view, is untenable on the evidence. Even if the College had made every adjustment sought I am satisfied that, having developed the specific phobia by January 2012, Dr Sklavos would have been unable to take the examinations in that year. Everything he experienced as the 2012 examinations approached (extreme agitation and anxiety, marked sweating, increased heart rate, dry-retching and insomnia) would have been experienced whether or not the College had agreed to all his requests about adjustments to the examination processes. 164 As such, it is s 6(1) that is potentially applicable, not s 6(2). To the extent Dr Sklavos attempted to run both cases, I consider the claims to be true alternatives in the sense that a person cannot succeed on both grounds. The sections are mutually exclusive. If I am wrong about s 6(1) applying, then my conclusions above about the three proposed adjustments (which Dr Sklavos also relied on for the purposes of s 6(2)) apply. In summary, to the minor extent that the College did not make the adjustments to the examinations which Dr Sklavos ultimately pursued, it could not be said that any such failure had the effect of disadvantaging Dr Sklavos. He would have been in exactly the same position because of his specific phobia. 165 In respect of s 6(1)(c), there cannot be any real doubt that a person who has developed a specific phobia will be at a disadvantage compared to a person without that disability in respect of the examination requirement. Accordingly, the College's examination requirement has the effect of disadvantaging persons with this particular disability. 166 The real question, accordingly, is that provided in s 6(3) – whether the requirement or condition is reasonable having regard to the circumstances of the case – in which event neither ss 6(1) nor (2) apply. By s 6(4), the College bears the burden of proving that the requirement or condition is reasonable having regard to the circumstances of the case. 167 Dr Sklavos relied on the observations in Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [115]: … (ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles [[1989] FCA 342;] (1989) 23 FCR 251, at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission [[1991] HCA 49; (1991) 173 CLR 349], at 395–396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, at 82–83, per Lockhart J. (iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles, at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46, at 61–62, per Heerey J; Commonwealth Bank v HREOC [(1997) 80 FCR 78], at 112–113, per Sackville J. (iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation, at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383–384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; State of Victoria v Schou [2004] VSCA 71, at [26], per Phillips JA. 168 I accept that these principles continue to be relevant, despite subsequent legislative amendment. 169 In Commonwealth Bank v Human Rights & Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78, Sackville J summarised the applicable principles (albeit again in a different statutory context) as including the following (at 110-113): First, the starting point in determining whether a requirement or condition is "not reasonable having regard to the circumstances of the case" are the observations of Bowen CJ and Gummow J in Styles (at 263) that: "the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience....The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account." This passage was approved in Waters, at 395-396, per Dawson and Toohey JJ; at 383, per Deane J; compare at 365, per Mason CJ and Gaudron J. It was applied in Dopking (No 2) [[1993] FCA 1067; (1995) 63 FCR 74], at 82, per Lockhart J; at 86, per Sheppard J; at 96, per Lindgren J; and in AMC v Wilson [[1996] FCA 591; (1996) 68 FCR 46], at 60, per Heerey J (with whom Black CJ and Sackville J agreed). In Dopking (No 2), at 82-83, Lockhart J said that the test "required the Commission, first, to examine the reasons in favour of the condition, and secondly, to weigh those reasons against the nature and extent of the discriminatory effect of the condition. The conclusion of discrimination within s6(2) of the [Sex Discrimination] Act can be valid only when the Commission determines that, in all the circumstances, the difference of treatment between members without a family and members with a family is not reasonable." Since the test is objective, the subjective preferences of the aggrieved persons cannot be determinative of the reasonableness of the impugned condition requirement. In Dopking (No 2), at 83, per Lockhart J, subjective preferences: "may be relevant in determining the reasonableness of the alleged discriminatory conduct; but ultimately, the test must be an objective one, applied by the Commission after considering all the material facts." … Fourthly, reasonableness (or non-reasonableness), for the purposes of s5(2)(b) of the SD Act, is a question of fact for the Commission to determine, but it can only do so by weighing all relevant factors. What is relevant differs from case to case, but will, usually at least, include the financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the aggrieved persons. It may also be relevant to consider the availability of alternative approaches which would achieve the objectives of the alleged discriminator, but "in a less discriminatory way": Waters, at 394-395, per Dawson and Toohey JJ; and see at 383-384, per Deane J; at 410, per McHugh J. As Brennan J pointed out in Waters, reasonableness cannot be determined in the abstract (at 378): "[I]t must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which para(a) and para(b) of s17(5) [equivalent to s5(2)(a) and s5(2)(c) of the SD Act, respectively] would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable." Fifthly, the role of the Commission is not to determine whether the decision to impose the condition or requirement was the "correct" one… … The fact that a distinction has a "logical and understandable basis" will not always be sufficient to ensure that a condition or requirement is objectively reasonable. The presence of a logical and understandable basis is a factor - perhaps a very important factor - in determining the reasonableness or otherwise of a particular condition or requirement. But it is still necessary to take account of both the nature and extent of the discriminatory effect of the condition or requirement (in the sense in which the authorities interpret that concept) and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision. Depending on the circumstances, such a decision might be legitimately characterised as not reasonable, having regard to the circumstances of the case. 170 In its defence, the College contended that the requirement that all Australian trainees must pass the College's final examinations to be elected a Fellow was reasonable given the following circumstances (see the particulars to para 60(b) in the Further Amended Defence): i. the overall objective of the Respondent's training program is to produce dermatologists who are safe, skilled and competent in the diagnosis and management of all aspects of diseases of the skin and its appendages and able to respond to the change health needs of the Australian community; ii. the structure of the training program over a four-five year full-time period is designed to ensure that the trainees pass through Basic Training in the initial two years and Advanced Training in the final three years. Trainees must pass through the defined stages to facilitate the progressive and cumulative acquisition of knowledge and skill; iii. during the Basic Training, the trainee must acquire detailed and comprehensive theoretical knowledge and understanding of relevant anatomy, cutaneous microanatomy and biology, basic immunology, basic radiation physics and radiobiology, basic laser physics, and clinical pharmacology as it applies to the skin. Trainees are assessed on their knowledge and competence in this area; iv. a further aspect of training through formative assessment, aims to enable trainees to become aware of their strengths and weaknesses, identify their learning needs, and with the assistance of their supervisors, to take steps to address those needs. Trainees must become aware of any gaps that exist between desired standards of performance and their current knowledge, skills and abilities. It encourages trainees to focus their attention on areas requiring improvement. The range of formative assessment strategies employed provides comprehensive assessment in: 1. interviewing skills 2. clinical examination skills 3. procedural dermatology skills 4. professional conduct 5. research skills v. each stage of training must be completed to a satisfactory level; vi. the training is designed to ensure that the trainees acquires skills in the treatment of complex dermatological conditions and can meet the demands of increased responsibility for patient management; vii. the assessment is undertaken in an objective and appropriate manner to ensure that the high standards expected of trainees is meet; viii. the Respondent currently holds an accreditation from the Australian Medical Council as the specialist medical program in Australia which allows a medical practitioner to be registered as a specialist dermatologist, conferring upon that medical practitioner the qualification of Fellowship of the Australasian College of Dermatologists. ix. the assessment requirements of the Respondent have been accredited by the Australian Medical Council. x. the Respondent undertakes assessment of trainees by a number of different means including both summative and formative assessments which are formulated to ensure that trainees who successfully complete the program of the Respondent are competent and safe to practise as a junior dermatological specialist. xi. the Respondent had a Special Consideration policy which operated to permit trainees have their examinations held under alternative or varied conditions in certain situations; xii. the Australasian College of Dermatologists Training Program Handbook 2009 at Appendix Three provides an internal appeals process for any person who claims to be adversely affected by a decision of the Board or Committee of the Respondent. 171 Other than particular vii as set out above, it was not in dispute that the evidence established the existence of each particular. The case for Dr Sklavos was that the College's objective – ensuring competence – could be satisfied by processes other than a trainee having to sit for and pass the College's final examinations. As the submissions for Dr Sklavos put it: The College's case does not establish why it was reasonable, having regard to all of the circumstances, including Dr Sklavos's disability, to require Dr Sklavos, if he was to be eligible for Fellowship, to pass the examinations, as distinct from a modified or alternative form of assessment directed to and capable of achieving the same objective. 172 In support of this proposition, the submissions for Dr Sklavos made the following points: (a) Dr Fischer gave some evidence that her view was that the clinical examinations are difficult to organise, meaning that it would be 'extremely difficult' to examine candidates outside the normal arrangements. Her evidence is also that the College considers the clinical examinations 'to be the best way to maintain a fair, transparent and reproducible assessment process.' (b) Dr Shumack and Dr Corderoy gave evidence that the College's training program has been accredited by the AMC, a body required to assess and accredit specialist medical training programs. Since 2010, accreditation by the AMC has become compulsory, to ensure that trained specialists are 'safe to practise.' This overarching concern is re-emphasised by Dr Corderoy, who indicates that: When admitting a trainee to Fellowship, the Board/Committee is concerned with one key question: is that person safe to practice independently as a junior specialist dermatologist? However, no evidence has been called that suggests that the AMC regards the examinations as a mandatory or indispensable part of the method of assessing specialists for this key competency. (c) Dr Corderoy makes reference to the 'Eminent Pathway' or IMG process. As already submitted, the College's method of assessing whether IMGs are suitable to be recognised as Australian specialists and eligible to apply for election to Fellowship does not necessarily require any examination to be undertaken. That is authorised by and consistent with the terms of cl 11.1.1(a)(2)(B) of the College's Constitution. (d) Dr Corderoy gives evidence about the process of the examinations, but this evidence itself cannot speak to the reasonableness of a requirement that a trainee sit and pass all components of the examinations if they are to be assessed as eligible to be elected as a Fellow of the College. (e) All of Dr Corderoy's evidence about the rationale for the examinations goes to the capacity of the examinations as a method of assessment to ascertain whether a person is 'safe to practise.' Nothing in this evidence suggests that another method of assessment, or a modified form of the examinations, would not be equally or even more appropriate. (f) Professor Jolly was overwhelmingly the best qualified and most objective witness on this issue. His uncontradicted and unchallenged evidence was that examinations were a, but not the only, method of reliably assessing postgraduate medical trainees' proficiency and competence. 173 I accept that examinations of the kind conducted by the College are one, but not necessarily the only, method of reliably assessing postgraduate medical trainees' proficiency and competence. The College, sensibly, did not suggest otherwise. But what the College did contend was that its requirement for all Australian trainees to pass its final examinations was reasonable in all of the circumstances. 174 There is some tension in the case put for Dr Sklavos. On the one hand, he believes that his qualifications and experience qualified him for election as a Fellow in 2012. I am unable to agree. Not one of the dermatologists who deal with this question thought he should be able to practice as a dermatologist because, given that he had not passed the examinations, he had not demonstrated competence. Dr Fischer believed that as at 2010 he was not in fact competent to practice as a dermatologist, based on his performance in the clinical examinations. His failure in the 2010 clinical examinations indicates a lack of competence to practice. On the other hand, Dr Sklavos seemed to accept that it would have been necessary, even in 2012, for him to subject himself to further assessment, perhaps by way of supervised practice, so that his competence could be ensured. His current position is that while he accepts he would need to be subjected to further assessment his phobia will prevent him from undertaking this because it is the College, necessarily, that will ultimately be responsible for that assessment. The notion that, having failed the final examinations, the College would simply elect Dr Sklavos as a Fellow in 2012 is unrealistic. He had not demonstrated competence to practice as a dermatologist, irrespective of his qualifications and experience. The only possible option, which the submissions for Dr Sklavos seem to accept in some respects, is for an individualised assessment program to have been developed for Dr Sklavos, excluding examinations, after which an application for Fellowship might have been considered. 175 In this context, circumstances relevant to the reasonableness of the College's examination requirement include, first, that the AMC has accredited the whole of the College's existing training program which includes its final examinations. I do not accept that it would be open to the College to waive its examination requirements for an Australian trainee without having developed and having obtained accreditation from the AMC for the full details of an alternative assessment program to stand as a substitute for every component tested by the College's examinations. In other words, variation of its examination requirement is not within the unilateral control of the College. It would necessarily involve the AMC. The College would have to persuade the AMC that the alternative program would perform the same function as the College's examinations in all material respects. In these circumstances to say that the College has not proved that the AMC regards the examinations as a mandatory or indispensable part of the method of assessing specialists is to gloss over the reality that it is the whole of the College's training program, of which the final examinations form a significant part, which has the benefit of AMC accreditation. 176 Second, it is apparent from the AMC's Procedures for Assessment and Accreditation of Specialist Medical Education Programs that the requirements to obtain accreditation are detailed and rigorous. There are numerous steps involved which, it may be inferred, involve substantial time, effort and cost on the part of the body seeking accreditation. Because it is critical that every medical specialist be not just competent but demonstrably competent there is no reason to infer that the AMC would accredit a program for any doctor seeking to be registered as a medical specialist outside the scope of an accredited scheme specifically applicable to that speciality, unless plainly satisfied that the alternative program ensured competency to the same level and across all areas of theory and practice as the already accredited training scheme. This would necessarily involve the AMC itself in substantial work. Professor Jolly (whose evidence is discussed below) described the role of the AMC in accreditation of bodies, such as the College, as training providers, as follows: The AMC accredits specialty colleges, such as the Royal Australasian College of Physicians (RACP), to train and assess trainees in a specific area of medical practice, in the case of the RACP – internal medicine. The AMC accreditation process involves a detailed evaluation of a college's curriculum, including the specified outcomes, training activities, mentoring and support processes, assessment and governance procedures. It is a comprehensive and demanding evaluation involving analysis of all documentation pertaining to a training program, and usually a visit to the institution and several training and assessment sites. It also involves interviews with trainees, supervisors, college officials, hospital employers, and others. However, the AMC has no direct role in the decision to award designation as a Fellow of the respective college, to an individual. That is left to the College's discretion, as long as they are accredited to do so by the AMC. 177 Third, it is obvious that the College's examination requirements represent an extraordinary amount of work for the dermatologists involved, work which is undertaken on a wholly voluntary and unpaid basis. Dr Fischer, who held the position of Chief Censor in 2010 has volunteered her time to the College since 2003 in respect of the College's examinations. She explained that: 21. The Chief Censor is the organiser of Board of Censors. The duties of the Chief Censor included, but were not limited to: (a) chairing each meeting of the Board of Censors; (b) re-marking written answers where two (2) examiners give marks for an answer to an essay question in the Fellowship examination that exceeds a 10% difference. The Chief Censor re-marks the candidate's response and then an average of the two closest marks is taken as the final result for that essay question. All written papers are de-identified. (c) the Chief Censor oversees the creation of every question that goes into the Fellowship examination (including multiple choice questions, viva voce scenarios and essay questions); and (d) the Chief Censor liaises with the Dead of Education and College Board regarding any issues that arose concerning the examinations. 22. The Board of Censors (now called the National Examination Committee) is responsible for overseeing the entire Fellowship Examination process each year. This involves writing the examination questions, determining the rubrics of assessment for the examinations, organising the arrangements for the examinations to be conducted and assessing the candidates. Each censor on the Board of Censors needs to be sufficiently experienced, skilled and knowledgeable to be able to write examination questions and to participate in creating an examination that will be sufficiently test all the areas in which a trainee of the College must demonstrate sufficient skill and knowledge so that they can be assessed as being safe to practice as a junior specialist dermatologist. This is the standard that must be met by a trainee before the College can assure consumers of medical care that they are considered safe to practice as a junior consultant and can be conferred Fellowship of the College. 23. The written Fellowship Examination consists of three main parts. First, a section comprising long essay questions. These are questions which members of the Board of censors have written from their own clinical experience. They are based on cases which censors have come across in their practice. As Chief Censor, I would request that each censor write a long essay question. Once each censor has written their long essay, the Board of Censors meets to discuss the questions, refine the questions, decide on an acceptable answer and then decide which questions will be used in the Fellowship Examination. This is not necessarily how every Chief Censor arranges for the long essay questions were prepared, however this is how it was done under my leadership. 24. Secondly, there are multiple choice medical questions which are done in two papers. One paper comprises questions regarding a combination of factual knowledge of dermatological conditions, investigation and treatment in one half and the other half involves problem-solving. The second paper comprises factual knowledge of dermatological surgical conditions and treatments. 25. The Fellowship examination also includes a viva voce examination which takes place after the written Fellowship examination. There are two viva voce examinations: the first is run in individual states and comprises questions on histopathology, laboratory technique and dermoscopy (dermatological microscopy). The second is a clinical viva voce examination, usually held at the beginning of August each year in one centre only, where candidates examine patients and then are required to talk about their findings to the examiners. This examination also has a surgical component where candidates need to demonstrate their competency and knowledge of dermatological surgery. 178 Dr Corderoy, who is not a dermatologist but an education specialist employed by the College, said this: 58. When admitting a trainee to Fellowship, the Board/Committee is concerned with one key question: is that person safe to practice independently as a junior specialist dermatologist. In this statement where I refer to the indicator, 'safe to practice', it is to this question I am referring. 59. In order to determine whether a person is safe to practice, the College has, over many years and with input of various experts (both medical and educational) and with reference to the standards set down by the AMC, developed its system of examinations as the best way in which it can objectively determine who is safe to practice and who is not. 60. The College has carefully developed a comprehensive curriculum in relation to material that a specialist dermatologist should know. It is benchmarked against international curricular, [sic] is regularly reviewed and is of course in alignment with the standards required by the AMC. The curriculum is very broad and the College must be able to assess whether a trainee has developed an adequate knowledge of the material in the curriculum. This knowledge can be tested efficiently and objectively through the examination process, using written exams to test the acquisition of knowledge and skills and clinical vivas to test the ability to apply this knowledge and skills in a simulated real world setting… The feedback of a trainee's supervisors is significant, however it ultimately is only the option of those individuals, not a standardised or an objective opinion. The examination process is a safeguard against an un-controlled subjective approach to verifying a 'safe to practice' standard has been achieved. 61. The objective assessment of 'safe to practice' is demonstrated when the examination committee sits down to look at the final result and make a decision about borderline candidates. They discuss what happened in the exam over the 2 days of the Vivas, in relation to the candidate being discussed from the perspective of each of the examiners. Given the state based nature of the exams, only a small proportion of the candidates are 'known' to the majority of the examiners. Examiners are only really familiar with candidates sitting from their own state. At this final meeting, everybody is asked for comment, 'how do you really feel about this candidate and how they performed in the cases/stations you were examining'. Discussion can be quite extended. After all of this discussion, they vote on whether they consider that person safe to practice. 62. The statistical way in which the nominal pass mark is determined is a frequently used statistical measure which takes into account, at the same time, variations in the degree of difficulty of examinations from year to year, and the variations in the cohort. Setting an arbitrary pass mark of say 75% does not take such variables into account. The AMC is satisfied with our approach in this regard. 63. After knowledge is assessed in the true/false or multi-choice papers, the written essay papers then combine that knowledge into the scenarios that are clinically based. The candidate is asked to use a written approach to display their knowledge, skills, attitude and processes. In the experience of the examinations committee, the written paper is the beast measure of how a candidate is going to go in the vivas, since it is simply an on-paper replication of a clinical situation. The written exam is like the vivas but instead of being verbally examined, the candidates are given half an hour to use the information provided to formulate a response (using text to outline a diagnosis), what they would do or how they would treat a patient, what treatment regime they might adopt and how they might manage the patient. The written exam demonstrates whether a candidate can synthesise the knowledge and the experience to write down the analysis. The written exams are a less pressurised situation than having to give a logical recount verbally, since more time is allocated than in the vivas. 64. It is in the viva exams that the College is able to reliably make a decision as to whether a candidate is safe to practice as an independent junior practitioner. The exams replicate as close as possible a real clinical situation. The candidate is observed working with patients, and going through the process of taking the history, looking through related facts, diagnosis, management plan, treatment plan. 65. The long case vivas are the best indicators of whether a candidate [can] work safely and independently in a clinical situation because they are being assessed by their expert peers operating in clinical situations. The exams are a pressure situation but are designed to mimic the pressure that the candidates will likely have to deal with in clinical practice. The candidates have to be skilled enough to synthesise their knowledge and observations made during their examination of the case quickly and make an accurate diagnosis. 66. Long cases mimic a clinical situation. The candidate goes into the examination room in which the patient is sitting, they are with that patient by themselves for 30 minutes. They are then given 5 minutes at the end of that time to finalise their notes/thoughts. They then go into the viva room where the 2 examiners sit, the two peers sit. Very often, the first question the examiners ask is to the effect, "Tell me about Mrs X". The process that the candidate has to go through in the consultation room – that is, to take a history, make a diagnosis, do some differential diagnoses, make a further examination, then think about what is the pathway, then discuss a treatment regime and management regime – all these areas are covered and it replicates the approach the candidate would take working independently in his/her own practice. 67. The examiners 'know' the patient (they have seen the patient notes/photographs previously and have their own consultation with the patient prior to the commencement of the Viva). It is during this session that they are able to check the presentation on the day and carry out a final refinement on the rubrics and marking guides that had been prepared during the setting of the vivas and at the pre-exam examiners meeting. Note that the patients are generally drawn from the state examiners practice or those of colleagues in the state. During the Viva, the examiners work their way through the candidate's process, and consider what the candidate picked up and what did they miss. Critical items on the rubric that were not picked up (for example indicators of life threatening illnesses) may lead the examiners to conclude that although a correct diagnosis was made the candidate is not 'safe to practice'. The clinical vivas also give examiners the best chance of assessing a candidate's ethics and interaction with the patient, which are difficult to assess objectively. 179 A system which has been developed and refined over many years, which has involved an extraordinary amount of work to bring it to its present standard, is not lightly to be waived. While Dr Sklavos was highly critical of the College's examinations and how they were marked, not only is the system accredited by the AMC, there is no evidence that it has been ineffective in ensuring that Australians are provided with competent dermatologists. No-one suggested the current system of assessment of the College – including the final examinations – was failing to deliver to Australia competent dermatologists. Every system will have its strengths and weaknesses but, in the case of the College's system, it has been in place for many years and must be inferred to have been working satisfactorily to obtain current accreditation from the AMC (which the College has obtained, albeit with a significant amount of work to refine its processes of assessment, including its examinations). On the evidence, Dr Sklavos appears to be the only trainee of the College who, not having passed the final examinations, has nevertheless sought election as a Fellow based on his qualifications and experience, and the only person to have sought waiver of the examinations altogether by reason of a disability. There is no evidence that other trainees of the College have been dissatisfied with the College's requirements in the same way or to the same extent as Dr Sklavos. 180 Fourth, another obvious fact is that as at 2012 when Dr Sklavos sought waiver of the examination requirement, the College did not have available to it a program which would have enabled it to assess Dr Sklavos's competency other than its final examinations. Such a program was not then (and is not now) available for application to Dr Sklavos. The assessment of international medical graduates might have been a starting point for the development of such a program (as to which, see below) but, as noted, these people are already dermatologists qualified as such overseas. Dr Sklavos was still a trainee who had not passed his own country's requirements to be a dermatologist. To contemplate waiver of the examination requirement, it is likely that the College would have had to carry out substantial work to ascertain whether it was feasible for it to ensure Dr Sklavos's competency across all the areas covered by the examinations by some alternative method. 181 Fifth, and contrary to the case for Dr Sklavos, the situation in respect of international medical graduates is not directly comparable. While it is true that the College is prepared to assess the competency of some of these graduates on a basis that does not involve examinations but, rather, workplace based assessments, each such application is considered on an individual basis. The applications are made ad hoc. The assessment proceeds from the assumption that the person has already qualified as a dermatologist in another country. It is also apparent that the AMC carries out an initial assessment of an overseas specialist in accordance with specific AMC procedures. Accordingly, the AMC itself has already accepted that for certain international medical graduates there will be no requirement to sit further examinations. However, another thing which is apparent is that some overseas dermatologists are rejected outright as non-comparable to Australian requirements, and others are required to undertake up to two years of the College's training program for Australia trainees and to pass the College's final examinations, depending on the comparability of their training overseas with Australian requirements. As Dr Baker explained in his second affidavit, since 2007/08: 11. …the process for International Medical Graduates who wished to be considered as Fellows followed a particular policy which became known as the "Specialist Recognition Assessment Pathways" program (the Pathways program)… once an application is made by an IMG, the College considers the application and, in substance, decides whether an IMG's qualifications are: (a) "Not comparable" to those the subject of the College's program (in which case the applicant is ineligible for specialist recognition by the College); (b) "Partially comparable" to those the subject of the College's program – in which case the College assesses the extent of qualification of the candidate, identifies what further training or assessment is required for it to be satisfied the candidate has the necessary competence to be admitted as a Fellow of the College, and then puts in place particular further requirements for the candidate, on a case by case basis. Though the extent of steps that are to be followed is devised by the College on a case by case basis (as appropriate), one example might be that the College may require an IMG to complete 2 years of the College's training program that applies to Australian based candidates, followed by requiring the candidate to complete the final Fellowship examinations; or (c) "Substantially comparable" to those the subject of the College's program – in which case it is possible that immediately or usually after a period of supervised practice the college might make a recommendation for an IMG to be recommended for specialist recognition and admission for Fellowship of the College. 12. Therefore, over time (commencing 2007/2008), the Pathways program was used to assess the suitability for Fellowship of overseas trained specialist dermatologists who were either: (a) From around 2007/2008, IMGs who were specialist dermatologists overseas but lacked further pre-eminent academic experience and/or qualifications – these candidates were assessed under the Pathways program and were required to complete all assessments and training requirements set by the IMG Committee (a particular education committee within the College); or (b) IMGs who were specialist dermatologists overseas but also had pre-eminent academic experience and/or qualifications, however those candidates' applications only formerly began being considered as applications under the Pathways program from around 2011. Prior to then, they were provided to and considered by the College's board. 182 According to the material annexed to Dr Baker's second affidavit, about 82 international medical graduates have been assessed under these procedures since 2007. A table shows how those applicants were assessed: The table below provides information on the assessment outcomes of 82 applications received over the last 7 years. Assessment Outcomes 2007 – 2014 Not Comparable 22.2% Partially Comparable 51.9% Partially Comparable – 3 months 1.2% Partially Comparable – 6 months 14.8% Partially Comparable – 12 months 13.6% Partially Comparable – 24 months 22.2% Substantially Comparable 25.0% 183 It will be apparent that nearly a quarter were rejected as not comparable (that is, not eligible for the program). Nearly another quarter required two years of training. The proportion required to pass the College's final examinations is not apparent but, if it is considered appropriate, Dr Baker's evidence discloses that international candidates will be required to do so. The requirement for examinations is thus a component not only of the AMC accredited system for training Australian dermatologists, but also a component which assists the College to ensure the competence of international dermatologists who wish to practice in Australia. 184 Sixth, while I accept that in theory at least an alternative system of assessment of competency to the College's examinations could be developed with enough time and thought, I do not consider it can be inferred that such a task would be other than difficult and time consuming. Professor Jolly, an expert in medical education, recorded in his report that the AMC's position is currently that "no single method can assess all the elements that contribute to good medical practice" so that it is "essential to use a variety of assessment methods that complement each other in the elements they assess" (emphasis removed). Professor Jolly also noted that the AMC's position is that: [t]he strength of an assessment program is judged at the overall program level rather than on the psychometric properties of individual instruments. In such an approach highly reliable methods associated with high stakes examinations such as multiple choice questions (MCQ), modified essay questions (MEQ) or objective structured clinical examinations (OSCE) are used alongside instruments to measure domains such as independent learning, communication with patients and their families, working as part of a health team, development of professional qualities and problem solving skills where reliability is less well established. The AMC encourages the development of assessment programs for their educational impact. A balance of valid, reliable and feasible methods should drive learning to the program goals and outcome… The AMC encourages education providers to utilise direct observation of trainee performance using performance-based assessment, as well as other forms of clinical assessment. 185 The College's accredited training program did not (and does not) consist merely of a series of examinations including the final examinations. The College's four year program involves a combination of examinations, supervised training including workplace based assessment via a summative in-training assessment process (called SITAs), publications requirements and final examinations which involve both different components of multiple choice and essay questions and a variety of clinical examinations by way of vivas. In other words, the current training program satisfies the AMC requirements for a variety of assessment methods, including examinations which the AMC's publications recognise as valid assessment tools. Professor Jolly also said that using a number of different assessment methods assists in making an assessment process reliable. Examinations are part of the range of assessment methods, widely recognised across many fields, as providing a reliable indicator of competence. 186 I accept also the submissions of the College that Professor Jolly's evidence confirmed: (a) that SITAs represent a form of workplace-based assessment, in the sense of being ongoing clinical interactions by a trainee where a trainee is marked or scored at the end of periodic points in time: see TS Day 6 at 414.43 – 414.45; (b) that final fellowship exams are still used as part of the assessment program in several specialty training colleges in Australia and internationally: TS Day 6 at 415.10-13 and 415.26; (c) that a lot of exams used as final exams test for knowledge, and expertise depends on knowledge: TS Day 6 at 415.30-33 … (d) that several of the subjects that are part of the Bachelor of Medicine at the University of Newcastle, where Professor Jolly works and has a role in putting in place the assessment program, use final examinations as part of the assessment program, and do so at least in part because final examinations can be used in medical education as a useful tool for assessing competency in a particular field of medicine: TS Day 6 at 418.1 – 8.; (e) that workplace based assessments contain some disadvantages, limitations and constraints (including as to reliability and supervisor engagement): see TS Day 6 at 418 – 422; some of these constraints were the subject of a the paper that Professor Jolly co-authored which … was published in 2014; (f) that the AMC accreditation process is rigorous and follows a detailed evaluation by the AMC, and accreditation of a program in most cases reflects that the AMC considers that the program is appropriate: see TS Day 6 at 425; and (g) that the "wisest" type of assessment program in medical training utilises a combination of several assessment tools: see TS Day 6 at 417.15-21. 187 Professor Jolly's evidence itself discloses the difficulty of developing a reliable assessment system. In an article of which he was the co-author (Weller JM, Misur M, Nicolson S, Morris J, Ure S, Crossley J and Jolly B, "Can I Leave the Theatre? A Key to More Reliable Workplace-Based Assessment" (2014) 112(6) Brit J Anaesth 1083-91), the following key points were noted: Background. The value of workplace-based assessments such as the mini-clinical evaluation exercise (mini-CEX), and clinicians' confidence and engagement in the process, has been constrained by low reliability and limited capacity to identify underperforming trainees. We proposed that changing the way supervisors make judgments about trainees would improve score reliability and identification of underperformers. Anaesthetists regularly make decisions about the level of trainee independence with a case, based on how closely they need to supervise them. We therefore used this as the basis for a new scoring system. … Conclusions. Supervisors' judgments on trainee independence with a case, based on the need for direct or more distant supervision, can generate reliable scores of trainees performing below expectations, and track trainee progress towards independent specialist practice. 188 This shows that great care would be needed to devise a system of assessment which reliably tested a trainee's competence compared to the College's final examinations. 189 Seventh, even if the College and the AMC were satisfied about the alternative arrangements, unlike an examination which is held over a compressed period of time, the alternative procedures would almost certainly involve a series of workplace based assessments across the relevant spectrum. While the College and AMC have adopted procedures which allow for an international medical graduate (that is, for example and as set out above, a person who has qualified as a dermatologist overseas) to be assessed by workplace based assessments, allowing an Australian trainee to do so may set a significant precedent. Even if Dr Sklavos were the only person to be assessed in this way, it would involve the College in overseeing his ongoing training and assessment for a period that exceeds the training period provided for all other trainees and, in all likelihood, would significantly exceed that period. 190 While I do not know the precedential effect, the impact on trainees without a disability would have to be considered. It is not difficult to infer that other trainees may feel aggrieved by the requirement that they take examinations in these circumstances. I have no doubt that the implementation of an alternative system for final assessment of even a single Australian trainee will raise difficult questions of policy for the College and the AMC which would have to be addressed. Substituting examination requirements for alternative methods of assessment for even one Australian trainee involves such large issues of policy it suggests that the issue might be incapable of resolution other than with regard to the position of all trainees, not merely Dr Sklavos. 191 Eighth, given the time, effort and cost which has been and will continue to be invested in the College's examinations, any risk of an increase in the time, effort and cost involved in training dermatologists in Australia is likely to be undesirable. As Dr Shumack's evidence regarding the College's structure explained, the College is not the equivalent of a university. There are not that many dermatologists in Australia (there are currently only about 450 practising Fellows of the College spread across Australia). The College only operates at all because a sufficient number of those 450 dermatologists are willing in every year to volunteer their time, without compensation, to run the College's various programs, including its training program. The administrative employees of the College (only 11 in all) do not run the training program. They are not competent to do so. Only dermatologists can run the training program. They do so by taking time out of their practices (either private or in our hospital system), when they could be treating patients, to ensure that new dermatologists can be trained and assessed. By so doing, the dermatologists who have served in various positions on the College over the years have performed, and continue to perform, an extraordinarily valuable public service. Any suggestion that, for a single trainee, yet more time and effort should be devoted to the creation, implementation and ongoing oversight of an alternative assessment program is or should be a cause for serious disquiet. Proposing that the trainee could personally pay for the additional costs is no answer. Every hour a dermatologist gives to the College, while undoubtedly a valuable hour, is an hour not able to be spent practising the specialty for which that dermatologist has been trained to the benefit of the Australian public. 192 Ninth, it must not be overlooked that Dr Sklavos has already had the benefit of five years training including all of the work at Dr Younger's practice. While, on the one hand, that represents a substantial public and personal investment in and by Dr Sklavos, it is also apparent that, on the other hand, training positions are themselves a valuable resource. As Dr Shumack explained, hospital training positions are accredited by the College. The College will only place trainees in accredited positions. This process of accreditation involves numerous steps, including an assessment by the College against certain accreditation standards. Accreditation is subject to ongoing reviews. Any further training the College invests in Dr Sklavos is training that could be made available to another trainee who has not had the opportunities Dr Sklavos has had. As to the latter, it is relevant that Dr Sklavos made numerous attempts to be accepted as a trainee. This is evidence that demand for training positions exceeds supply. 193 It is also relevant that, before he developed his specific phobia, Dr Sklavos sat the College's final examinations. Whatever the true position in respect of the written examination in 2010, he did not pass the 2010 clinical examinations. He had no particular anxiety symptoms at that time outside the normal range. He also sat the 2011 written examination but (according to the College) failed. He had severe anxiety by then, but severe anxiety is to be expected in a person who has already failed a life-changing examination. I am not prepared to accept that in such a situation, specific anxiety is itself a disability. However, even if that were the position, a real question arises about the number of opportunities a single trainee should be given. The College has a policy that four opportunities within 10 years is the maximum for any trainee. Dr Sklavos, who started training in 2007 would have only one more year (2016) in which to take and pass the College's examinations. 194 Further, when the College reduced its training program from five to four years it arranged a placement for Dr Sklavos in Dr Younger's practice which he worked in between February 2011 and September 2012. This was a position which Dr Younger chose to make available at the College's request to assist Dr Sklavos because his partner had recently retired. Another relevant factor is that Dr Sklavos has been out of the College's training system, and has not been involved in dermatology, since September 2012. While Dr Sklavos blames the College for excluding him from obtaining further dermatological experience after he ceased working with Dr Younger (and, indeed, believes Dr Younger was part of a conspiracy with the College to ensure his training with Dr Younger ended, which Dr Younger denied, a denial which should not be doubted), the fact remains that he has not been practising any form of dermatology for more than three years. It may readily be inferred that his skills and knowledge have deteriorated over this period. What further investment of public resources might be required to train Dr Sklavos to a level where he is demonstrably competent (assuming, in his favour, this is possible at all and that he had not simply reached the extent of his capabilities in the 2010 examinations) is unknown, but in the circumstances could not be assumed to be a relatively short period. Dr Sklavos considered that training for another medical specialty at his age (he is 45) was now unrealistic. However, if the ongoing assessment to which he would have to be subject to be demonstrably competent as a dermatologist is itself measured in years the same issue arises. 195 Tenth, while it is Dr Sklavos's goal to become a dermatologist, this is not a matter where, if he is unable to become a dermatologist, Dr Sklavos will be left without qualifications and career opportunities. Dr Sklavos is registered as a general practitioner already, albeit a so-called non-vocationally registered general practitioner. He has a right to practice as such. Section 3F of the HI Act provides that certain medical practitioners can become registered as vocationally registered general practitioners. As far as I can understand it (as I was given little assistance about this issue), vocationally registered general practitioners, who undergo a (minimum) three year training program run by the Royal Australian College of General Practitioners, receive a higher Medicare rebate for some items than other general practitioners. 196 Finally, and as noted, while Dr Sklavos's phobia is focused on the College's examinations his beliefs about Fellows of the College conspiring against him relate to the College generally. The College was, and is, the only body in Australia accredited to assess the competence of a person to practice as a dermatologist. If the examination requirement had been waived in 2012, or at any time thereafter, it would still be the College which would be responsible for any alternative method of assessment by Dr Sklavos. He is currently incapable of subjecting himself to any form of assessment by the College. The idea that things would have been different in 2012 because his condition has deteriorated, as I have said, strikes me as unrealistic. Accordingly, in and from 2012 if the College had waived its examination requirement it would have been doing so for a trainee who found engaging with the College at all had an exacerbating effect on his condition. 197 Dr Sklavos accepted that, with his current qualifications as a medical practitioner, he could open a skin clinic within a general practice context or work in a skin cancer clinic. While he is entitled to hold the strong ethical objections to skin cancer clinics he expressed, he gave no explanation as to why he would not find focusing on skin related issues within a general practice context rewarding, other than that he would not be passionate about any medical career other than as a specialist dermatologist and finds it "demoralising" to think of his future employment as "anything other than a specialist dermatologist". I am unable to see these objections as having any foundation in Dr Sklavos's disability. They are his personal beliefs. What they indicate is that if Dr Sklavos's training and experience is to be wasted merely because he cannot become a specialist dermatologist, the major proportion of that waste will be a result not of Dr Sklavos's disability but of his own perceptions. 198 It was put for Dr Sklavos that the College had not provided any detailed justification for requiring Dr Sklavos to sit and pass the final examinations, as distinct from a modified or alternative form of assessment, and had not put forward any cogent evidence of a financial burden that would have resulted from using modifications or alternatives to the examination requirement in relation to Dr Sklavos. It is true that there is no program which the College has identified that Dr Sklavos would have to undertake, nor any costing of such a program. The reason for this, however, is understandable. To develop such a program will itself involve substantial work. It would be unreasonable to expect the College to have done so for this proceeding. Moreover, the College has not asserted that it would be impossible to assess Dr Sklavos's competency by methods other than its final examinations. But this does not mean that there are not sound reasons, as identified above, for refusing to waive the examination requirement and develop an alternative assessment system for Dr Sklavos. 199 All of the matters set out above are part of the relevant circumstances to which regard must be had in determining whether the College's requirement that Dr Sklavos pass its final examinations is reasonable. 200 In respect of other circumstances said for Dr Sklavos to be relevant, I accept that the Disability Discrimination Act is beneficial legislation which indicates that a requirement that operates in an indirectly discriminatory manner is reasonable warrants scrutiny. I accept that the effect of Dr Sklavos's disability is to prevent him from now attempting to fulfil a long-held ambition. I accept that this involves the public interest, not merely private interest. Dr Sklavos has been educated, at significant expense to the Australian public, to practice as a doctor. He has undertaken many more years of further study and training, again no doubt at significant public expense, in his attempts to become a dermatologist. For all the time he has tried to become a dermatologist, he has only worked intermittently at a locum level as a general practitioner. This has deprived the public of his services as a general practitioner in the hope that he would be able to practice as a specialist. The amount of his own time, effort and money Dr Sklavos has put into achieving his goal, and the sacrifices he has made, must also be recognised as substantial. 201 I accept the submission for Dr Sklavos that the College's examination requirement means that he will be prevented from practising his chosen profession, in circumstances where he has devoted many years of work and study to becoming a specialist dermatologist. I accept too that: This has had an adverse effect on his professional reputation, his personal life and his general wellbeing, sense of self-worth and satisfaction. 202 Dr Sklavos will be able to practice as a general practitioner, including in a practice focusing on skin conditions. He has a strong subjective preference to have the examination requirement waived, but unless there was developed by the College in or after 2012 an alternative program of assessment there was no rational basis upon which the College could elect him as a Fellow. Given his performance in the 2010 clinical examinations and his beliefs about the College, there is also no sound basis for inferring that there was a probability that Dr Sklavos would have been capable of successfully undertaking alternative assessments at and from 2012. His performance in the 2010 examinations and beliefs about the College, at the least, made it a real risk (and in my view, a probability) that in and from 2012, he would not be able to successfully complete any alternative assessment program given the College's inevitable involvement in such a program. 203 Against this, all of the reasons against the waiver of the examination requirement identified above must be measured. Given those matters, it cannot be concluded that the College's insistence that all Australian trainees (and some international dermatologists) pass its final examinations is a matter of mere convenience. The examination requirement has an obvious logical and understandable basis. In fact, as at 2012 (and today) the requirement was close to a necessity because it was (and is) the only method the College had to satisfy itself of a trainee's competence without the College (and the AMC) undertaking substantial work to develop alternative assessment programs. The examination requirement was and is appropriate and adapted to the College, as the only body vested with the relevant responsibility for training dermatologists in Australia, being able to satisfy itself that a person is competent to practice as a dermatologist. While it is possible that the College could develop an alternative assessment program which would not have a discriminatory effect on Dr Sklavos, that development would require the College (and the AMC) to expend substantial effort to give Dr Sklavos a chance, but no more, to prove his competence. 204 As a result, I am satisfied that the College has established that its examination requirement, as it applied and applies to Dr Sklavos, was and is reasonable having regard to the circumstances of the case. 2.5.3 Conclusions 205 The case for indirect discrimination relying on s 6 of the Disability Discrimination Act cannot be sustained because the College has established that the examination requirement, at all material times, was and is reasonable having regard to the circumstances of the case. Accordingly, ss 6(1) and (2) do not apply. 2.6 Consequences 206 Because neither s 5 not s 6 of the Disability Discrimination Act are engaged there was and is no discrimination against Dr Sklavos for the purposes of the Act. It follows that the unlawful discrimination claims founded on Pt 2 of the Act cannot be sustained. Insofar it is necessary to say more, I confine myself to the following observations. 207 I am not satisfied that the inherent requirements exception in s 21A of the Disability Discrimination Act upon which the College appeared to rely is engaged. The relevant work is that of a dermatologist. The examinations are not the relevant work. Accordingly, it cannot be said that the examinations are an inherent requirement of being a Fellow of the College because being a Fellow enables practice, or work, as a dermatologist. 208 As to s 22, I do not accept that the College has imposed any requirement on Dr Sklavos on the grounds of his disability. Section 22(2) is thus inapplicable. However, if I am wrong about ss 5 and 6 above (but not otherwise) then it is arguable that the College's training program would infringe s 22(2A). 209 As to s 27, I have difficulty accepting that the College is a "club" as defined. I doubt that "social, literary, cultural, political, sporting, athletic or other lawful purposes", properly construed, extends to an organisation such as the College, but consider that, in circumstances where it is not necessary to decide this issue and the submissions dealing with it were scant, it is best to refrain from saying more. 210 As to s 29, I would be minded to accept the submission that the College is performing a function under a law of the Commonwealth because it is responsible for giving notices which have effect for the purposes of s 3D of the HI Act (enabling practice as a specialist). However, I am unable to see how the College's refusal to elect Dr Sklavos as a Fellow would engage s 29. As discussed, I also do not accept the College's refusal was causally related to his disability. 211 As to s 32 and the Disability Standards for Education 2005, the obligation in para 5.2(1) on which Dr Sklavos relied is to "take reasonable steps to ensure that the student is able to participate in the courses or programs provided by the educational institution, and use the facilities and services provided by it, on the same basis as a student without a disability, and without experiencing discrimination" (emphasis added). I would not find any breach of this standard. Further, para 6.2(1) requires that an education provider "must take reasonable steps to ensure that the course or program is designed in such a way that the student is, or any student with a disability is, able to participate in the learning experiences (including the assessment and certification requirements) of the course or program, and any relevant supplementary course or program, on the same basis as a student without a disability, and without experiencing discrimination" (emphasis added). Again, I would not find any breach of this standard. Consistent with my reasons above, I do not accept that the College otherwise failed to consult Dr Sklavos or failed to make such adjustments as it reasonably could in the circumstances. As such, I do not accept that the College breached paras 5.2 or 6.2 of the Disability Standards for Education 2005. I do not need to resolve whether the College was an educational authority as well as an educational institution. 2.7 Remedies 212 If I am incorrect about any of the above matters, I do not accept the submissions put for Dr Sklavos in respect of remedies for unlawful discrimination. 213 As I have found there has been no unlawful discrimination, no declarations can be made. 214 For the same reason, there can be no order that Dr Sklavos be elected as Fellow of the College. However, even if there had been unlawful discrimination I would not make this order, assuming I have the power to do so. I would not make this order for all of the reasons set out above. In short, Dr Sklavos has not been proved competent to practice as a dermatologist and I am not satisfied that there is any method currently available, but for the examinations, for him to be proved competent. To require the College to try to develop an individualised program of assessment for Dr Sklavos, given the matters set out above, would be an unreasonable exercise of discretion. There is no possible basis upon which I could conclude that this is an appropriate remedy. It cannot be an object of the relevant legislation that a person who has not been proved to be competent to practice as a specialist be permitted to practice as a specialist because that person's disability prevents them from demonstrating competence by the only method available and in circumstances where devising another method would involve such large issues of policy, reliability and the potential for substantial time, effort and cost to be expended. 215 In respect of the specific points made for Dr Sklavos: (1) His PhD does not demonstrate competence to practice. It was a research project. (2) Dr Sklavos has not completed all components of the College's training. The examinations are a critical component he has never passed. (3) Dr Sklavos's satisfactory SITAs are not an adequate substitute for examinations. If they were, then no Australian trainee with adequate SITAs would have to pass the examinations; yet every Australian trainee is required to do so. (4) Dr Sklavos's performance in the examinations in 2010 and 2011 gives no confidence that he is competent to practice. Apart from the time that has gone by, Dr Sklavos failed the clinical examinations in 2010 and was one of the four poorest performing candidates who took the examinations in 2010 and 2011. He seems to have been the second worst performer in the 2010 histopathology viva (71.5% compared to a notional pass mark of 77%), the second worst performer in the 2010 short cases viva (68.8% compared to a notional pass mark of 75%), and the worst performer in the long cases viva (71.7% compared to a notional pass mark of 77%). He scored the lowest overall mark in the clinical examinations by a material margin. He scored 70.9% compared to a notional pass mark of 78%. The next lowest mark in the 2010 clinical examinations, also a fail, was 76.3%. (5) Reliance on some of the marks having been changed through the process of deliberation is immaterial. It is the final result that counts. Dr Sklavos was in the bottom four in his cohort in both the 2010 and 2011 written examinations. (6) It cannot be accepted that because Dr Sklavos was working hard at Liverpool Hospital when he sat the 2010 examinations and could not get time off (an issue controlled by the Hospital not the College) that he should be seen as having demonstrated competence. The other candidates were also presumably working hard as well. Even if they were not, the point of an examination is to demonstrate competence. Dr Sklavos's results, particularly in the clinical examinations, are consistent with the concerns Dr Fischer raised, based on examiners' comments that he was "unsafe" and "dangerous" to practice as a dermatologist at that time. There is no reason to suppose that things have changed for the better, and every reason to suppose that his skills will have deteriorated over time, since he ceased formal dermatological training. Dr Sklavos was not suffering from out of the ordinary anxiety in 2010, despite having received a performance improvement form before sitting the 2010 examinations. Dr Fischer accepted that she knew of no candidate who had experienced all the problems Dr Sklavos had in training, but this does not mean that he was competent but just failed to perform competently. There is no sound basis for the inference of competence. (7) It is not possible to compare Dr Sklavos's performance with that of another trainee who failed the clinical examinations in 2010, yet passed in 2011. The work that other trainee did after failing the 2010 examinations is unknown. Nor can Dr Sklavos's performance in the 2011 examinations be compared meaningfully to yet another trainee who managed to pass the 2011 written examinations (but not by much) and then went on to pass the clinical examinations and become a Fellow. When given the same opportunity in 2010, Dr Sklavos failed the clinical examinations. (8) The work Dr Sklavos did in Dr Younger's practice does not demonstrate competence to practice as required by the College. Dr Younger himself said as much, emphasising that dermatology involves different levels of complexity and a lot of theory which cannot be tested for in the kind of general practice he runs. While Dr Younger thought Dr Sklavos had been given extensive practical experience he also thought that the examinations tested for things his practice did not. (9) It is true that most (but not all) trainees ultimately pass the examinations as required and become Fellows, even if not on the first attempt. Given that the trainees are already doctors and entry to the College is itself competitive, this is hardly surprising. That, as at 2007 only one trainee had failed to complete their training successfully (with evidence that another two subsequently having also failed to do so), indicates that, by and large, the College selects the right trainees. That some trainees fail the final examinations then pass subsequently might be a result of hard work in the interim. In any event, none of this indicates that Dr Sklavos himself is competent. The weight of the evidence is to the contrary. (10) Dr Fischer's belief in 2010 that if Dr Sklavos could pass in 2011 if he worked hard, does not mean he was competent in 2011 or is now. The belief was genuine but Dr Sklavos, unlike the other trainees who failed then passed, has not demonstrated competence and has now been out of effective training for more than four years. 216 Insofar as compensation is concerned, even if I had found unlawful discrimination had occurred, I would not be satisfied that it was appropriate to order any compensation under s 46PO(4)(d) of the AHRC Act. This is because, consistent with my reasoning below in relation to damages generally, I do not consider that it has been proved that Dr Sklavos has or will suffer any loss or damage caused by the conduct of the College in contravention of any legal obligation to Dr Sklavos. 3. THE EXAMINATIONS 3.1 Introduction 217 I will deal with the issue of Dr Sklavos's performance in the examinations in this section because it formed such a large part of the case and informs resolution of part of the contractual issues dealt with below. 218 First, although the written submissions for Dr Sklavos refer to the written examinations in 2010 and 2011, there is no pleading which specifically relates to his performance in the 2011 written examinations. Nor is there any pleading relating to the 2010 clinical examination which Dr Sklavos took and failed. Given that the hearing dates initially fixed were vacated to enable Dr Sklavos to amend his statement of claim, including in relation to his performance in the examinations, he should have been held to his pleading. The College, however, dealt with the case on the basis that the 2010 and 2011 written examinations were in issue, but not the 2010 clinical examinations, so I will also proceed on that basis. 219 Second, given that it was no part of Dr Sklavos's case that, but for any error in the marking of the 2010 or 2011 written examinations he would have been assessed by the College as having passed either or both, nor that it is any part of his case that the College was wrong in deciding that he failed the 2010 clinical examinations, it is difficult to understand the focus on this issue. Whatever the discrepancies in marking that Dr Sklavos was able to identify, nothing suggests the outcome would have been different in any case. 220 Irrespective of these concerns, the case put for Dr Sklavos consisted of eight propositions. I deal with each in turn. 3.2 Dr Sklavos's propositions 221 Proposition one is that, "[f]or every practical purpose, in 2010 and 2011 an invitation to sit the clinical examinations constituted success in the written examinations. It did not matter whether success in that context was described by words such as 'pass', or 'not fail', or 'invited' or 'admitted' to the clinical examination. The College used and uses all of those words at different times. In this context they are all synonymous, in that they all describe a definitive success in the written examination". 222 I disagree. The evidence in the present case is incontrovertible. As Dr Fischer explained: 9. In relation to the College's decision to invite Dr Sklavos to sit the 2010 Viva Voce examinations, I recall participating in a phone conference meeting of the Board of Censors held in late June 2010 during which the main topic of discussion related to which candidates who had sat the 2010 Written Fellowship Examinations, were to be invited to sit the 2010 Viva Voce Examinations. The decision as to that was at that time made collectively by the Board of Censors (now called the Board of Examiners). Though I do not have specific recollection of the words used in that phone conference, I remember that as at the time of that meeting, it was then understood by me and the Board of Censors that Dr Sklavos had passed the 2010 Written Fellowship Examinations. In that context, I recall that during that phone conference the Board of Censors decided that as a pass candidate in the 2010 Written Examinations (as it was then understood), Dr Sklavos should be invited to sit the 2010 Viva Voce Examinations. 10. I recall that a short time after Dr Sklavos was invited to sit the 2010 Viva Voce Examinations (which to my recollection occurred at or around the end of June 2010), it was brought to my attention as Chief Censor in relation to the 2010 Fellowship Examinations (I do not now recall exactly when or by who, but I believe one of the other examiners at the time) that an anomaly had occurred in relation to the aggregating of Dr Sklavos' marks in the 2010 Written Fellowship Examinations. This was an issue that the Board of Censors was not aware of at the time that the decision was made to invite Dr Sklavos to sit the 2010 Viva Voce Examinations. My collection as I understood it, was that the effect of that anomaly in how Dr Sklavos' marks had been aggregated was that his actual marks were in fact lower than those the Board of Censors had considered in the meeting referred to in [9] above. 11. My recollection is that once the marking anomaly referred to in [10] above (with respect to the 2010 Written Examinations in relation to Dr Sklavos' overall final mark in the 2010 Written Examinations) was corrected, it was revealed that Dr Sklavos' actual marks in fact amounted to a clear fail in the 2010 Written Examinations, as opposed to a pass. He had in fact narrowly passed the Essay component (DM I) but failed all other components (DM II and PD). The effect of this discovery was that as at around early July 2010, though Dr Sklavos had already been invited to sit the 2010 Viva Voce Examinations (on the grounds that he had achieved a pass), the College had become aware that Dr Sklavos was a clear fail in the 2010 Written Examinations. From my perspective, this meant that he would not have been invited to sit the vivas had that been known. 12. I recall that because as soon as I became aware of that situation, I conferred with Associate Professor Christopher Baker (then the Dean of Education at the College) about whether Dr Sklavos' invitation to sit the 2010 Viva Voce Examinations should stand. My view, which I expressed to Professor Baker, was that I was personally aware of some difficulties that he had experienced the previous year as a trainee, including in connection with arranging his placement as a fourth year trainee for 2010. As to that, I was aware that he had gone through a form of interview process at the Royal North Shore Hospital but ultimately was placed at Liverpool Hospital in 2010 after there was some resistance by the Royal North Shore Hospital to employing him as a trainee in 2010. My understanding was that reasons for the resistance included the Royal North Shore Hospital's awareness of a complaint about Dr Sklavos' professional conduct that had been made in around 2009. I was also personally aware that Dr Sklavos had not been able to complete his publication requirements prior to the 2010 Written Examinations taking place. I felt that the difficulties Dr Sklavos had experienced during 2009 may have negatively affected his performance in the 2010 Written Fellowship Examinations. Further, I recommended that Dr Sklavos not be advised that he had failed the Written Examination until after the Viva Voce examinations as I was concerned that this would be prejudicial to his performance at the Viva Voce. 13. Thus I felt that it would be too tough a position on the candidate for the College to, at that point, tell Dr Sklavos that he was no longer invited to sit the Viva Voce Examinations, in the context of the College having on around 30 June 2010, invited him to do so. On that basis the invitation for Dr Sklavos to sit the 2010 Viva Voce Examinations stood and if he passed the Viva Voce he would be deemed to pass the Fellowship Examination. 223 Dr Corderoy, who is responsible for statistical analysis of the examination results, explained that the error occurred because marks for the DM (dermatological medicine) II and PD (procedural dermatology) component of the examination were incorrectly attributed to candidates. One of the examiners, Dr Elliott, picked up the error. As a result of the error, the calculations showed that Dr Sklavos achieved an overall result of 76% compared to the calculated pass mark (of one standard deviation below the mean) of 72%. When the marks were correctly attributed, it became apparent that Dr Sklavos's overall result was 69.3%, as he had failed both the PD and DM II components. 224 Whatever he might now think of it, the reality is that Dr Sklavos obtained a huge benefit by reason of the College's mistake in 2010. The mistake was in his favour. He was allowed to take the clinical examinations when, if the College had known his actual performance in the 2010 written examinations, it would not have allowed him to do so. Moreover, had he been able to pass the 2010 clinical examinations, the College would have been satisfied that he had demonstrated competence with the result that he would then have been elected a Fellow. This is not as odd as it sounds because the College had a policy for many years (which changed by 2011) that a trainee who achieved a "borderline" result in the written examination could be invited to take the clinical examinations with the consequence that, if they passed the clinical examinations, they would be elected as a Fellow. In circumstances where Dr Sklavos's invitation to sit the clinical examinations in 2010 was based on a mistake, it cannot be said that his invitation to take those clinical examinations means that he passed the 2010 written examination. As far as the College was concerned, his results meant that he should not have been invited to take the clinical examinations. 225 Given the mistake, the evidence of Dr Sklavos having been told that he had passed the 2010 written examinations is immaterial. So too are documents which show him as having passed (on the incorrect basis that he achieved 76% overall when he did not). The College believed he had passed until the mistake was discovered. Once the mistake was discovered, the College took a fair approach by allowing Dr Sklavos to sit the clinical examinations without being told about the mistake. Had he passed the clinical examinations, he might never have needed to be told of the mistake, but he failed the clinical examinations so then had to be advised that he had also failed the written examination. 226 As such, I reject proposition one. 227 Proposition Two is that "[t]he words 'pass' and 'fail' were also used by the College in connection with the mark for each component in the written and clinical examinations. In that context they meant, respectively, achieving or exceeding, or falling short of, the 'notional pass mark'". 228 This is an oversimplification of the position. The evidence demonstrates that up to and including 2010 the College, and Fellows involved in the examination process, used the words "pass", "fail", "borderline pass" and even "borderline fail" in different ways with different meanings in different contexts. The evidence is confusing, but what is clear is this. The College did not use an absolute pass mark at any material time. As Dr Corderoy explained, because the number of people taking the examinations is low (usually 20 or a few more each year), the setting of an absolute pass mark (such as 75%, which the AMC has recommended in other contexts) was not considered a reliable indicator of competence. Instead, it was determined by the College that a more reliable indicator of competence was to set a notional pass mark calculated as one standard deviation below the mean. Dr Fischer said this: A fail is below one standard deviation down. That's a long way down when you have experience of these exams. And experience has shown us that people below one standard deviation below the mean have not garnered the competencies that we would expect. 229 The consequence is that for each question, and for the examinations overall, all marks are added, the mean is determined, and then marks more than one standard deviation below the mean are deemed to have failed. However, before and in 2010, marks just below or just above the notional pass mark might have been viewed as "borderline" passes or fails. The College reserved the right to invite such a "borderline" candidate in its written examinations to sit for the clinical examinations. In advance of the 2010 examinations, the College went through an internal debate and decision-making process, trying to work out the best way to deal with "borderline" candidates, the result of which was a memorandum to trainees on 18 December 2009 (discussed below). That memorandum retained the discretion of the College in relation to candidates it considered to be "borderline". Unsurprisingly, given the memorandum seems to raise more questions than it answers, by 2011 (and as reflected in the 2011 Training Program Handbook) the College had decided that only candidates who had "successfully completed" (explained to mean had achieved a pass, as "borderline" marks appear to have been phased out following 2010) in the written examinations would be invited to sit for the clinical examinations; whereas those who had clearly failed the written examination would not be invited to the clinical examinations and would have to re-sit the written examination. 230 As noted, after the mistake was discovered, Dr Sklavos's actual result in 2010 was not seen by the College at the time to be "borderline" so as to enliven the discretion the College then considered it had. Apart from Dr Sklavos's unfounded conspiracy beliefs, that is the reason why, when the College wrote to Dr Sklavos on 13 August 2010 after he had failed the clinical examinations in 2010, it said that he would have to re-sit the written examination in 2011. There is no evidence to found the contention that his results should have been treated by the College as a "borderline" result. The evidence is to the contrary – as soon as the true position was known, Dr Sklavos was seen by the College to have narrowly passed DM I but to have otherwise failed both other components and the written examination overall. But for the mistake in his favour, it is apparent from Dr Fischer's evidence that he would have been seen as a candidate whose overall results and quality of responses did not warrant consideration for an invitation to the clinical examinations, let alone an invitation. As she put it "[h]e achieved a borderline pass in the DM I element, but not the entire written examination", the result for the DM I component "was considered a borderline pass because of where it sat in the ranking", and being 3% below the nominal pass mark for the overall result (that is, 3% below the one standard deviation below the mean) was a "convincing" fail, meaning a fail about which there was no doubt (in contrast, I infer, to a "borderline" fail overall). Dr Fischer's evidence is consistent with the letters sent to Dr Sklavos by the College on 13 and 24 August 2010. 231 It is also clear that the clinical examinations necessarily involved a different process. The examiners of each candidate would mark the candidate's performance for each question in the clinical examinations, both as a raw score and as a pass, fail or borderline pass. The examiners would then all meet and discuss the results of the clinical examinations. The ultimate marks would then be assigned, added up, a mean derived and candidates would again be assessed by reference to the one standard deviation below the mean criterion. As a consequence, focusing on raw marks or assignations of a pass, fail or otherwise on marking sheets is apt to be misleading. 232 Proposition Three is that the "words 'pass' or 'fail' were also used by the College in connection with the overall mark for every component of the written examinations. In that context they meant, respectively, achieving or exceeding, or falling short of, the overall 'notional pass mark' for the written examinations. In these proceedings the College has sought to portray the overall mark as being definitive of whether a candidate succeeded in the written examinations. Propositions Four and Five demonstrate that this was not so in 2010 and 2011". 233 Insofar as this repeats proposition two, see above. Insofar as it relies on propositions four and five, see below. 234 Proposition Four is that in "2010 and 2011, if a candidate passed DMI, in the sense given in Proposition Two, that candidate was invited to sit the clinical examinations and was therefore, for the reason given in Proposition One, successful in the written examinations. In practice, this was so regardless of whether that candidate passed or failed the other components of the written examinations". 235 I consider this proposition is also an oversimplification. 236 I accept that the evidence indicates that, for the written examinations, DM I was seen by the College to be the most important indicator for a "borderline" candidate to be invited to sit the clinical examinations. The evidence also discloses in 2010 that the approach of the College to "borderline" candidates was more nuanced than merely inviting all candidates who scored marginally less than one standard deviation below the mean to sit the clinical examinations, and rejecting all others. The members of the relevant Board (the Board of Censors) instead would discuss the results, particularly those candidates within the range perceived to be "borderline" for DM I, and decide whether those candidates ought to be invited to sit for the clinical examinations, having regard to their results in DM I, DM II and PD and the overall quality of their responses. Achieving a narrow pass in DM I alone did not make Dr Sklavos a candidate who necessarily would have been considered for invitation to sit the clinical examinations given his failure in both other components of and overall failure in the written examinations. Further, if he had been considered based on his results in DM I and his real results in DM II and PD, it is apparent from the contemporaneous views of Dr Fischer and the advice to Dr Sklavos on 13 August 2010 that he would not have been invited to sit the clinical examinations in 2010. 237 Dr Corderoy explained why the process with respect to "borderline" candidates was abandoned from 2011 onwards. It appeared that candidates who were "borderline" overall and in respect of DM I who were invited to sit the clinical examinations were "frequently ill-prepared for" and in most cases failed the clinical examinations. 238 If it is necessary to say so, I accept Dr Fischer's characterisation of Dr Sklavos having achieved a "narrow" pass in DM I. It is apparent that while his mark was above the notional pass mark (161 compared to 154.92), the next mark above Dr Sklavos's result was far higher – 175.75. The "clear" pass marks ranged from this 175.75 to 197.75. There appear to have been three "clear" failures at 124.75, 140.75 and 142.75 and three "borderline" DM I results, 154, 156.25 and Dr Sklavos's own 161. 239 It is not correct that the Board of Censors did not have available to it all results when it decided who would be invited to take the clinical examinations. The fact that all results do not form part of the minutes of the 2009 meeting at which decisions such as these were made is immaterial. The minutes disclose that all results were available at the time. The minutes are merely a summary of the decisions made. Nor do the 2009 minutes support the notion that any candidate who passed DM I in 2009 was automatically invited to take the clinical examinations, irrespective of their overall result. The minutes embody the notion of "definite" (I infer meaning "clear", as opposed to "borderline") passes. They also consistently refer to results in DM II and PD as part of the reasoning process for "borderline" cases, including whether the passes achieved in those examinations were "definite" or not. The minutes also contain typographical errors which make it impossible to know the exact position with respect to some candidates in 2009. 240 Nor do I accept the fact that the College produced minutes of the 2009 meeting, and did not produce minutes of the 2010 meeting, supports any different inference. The Chief Censor had changed from Dr Baker to Dr Fischer. Dr Fischer does not recall minutes being generally taken, nor taken of the 2010 meeting. Even if this circumstance can be characterised as an unexplained failure to produce a document, there is no sound basis for inferring that Dr Fischer's evidence that, had the true position been known, Dr Sklavos would not have been invited to take the 2010 clinical examinations, is untrue or incorrect or that "those minutes would not have assisted the College's case that Dr Sklavos failed the 2010 written examinations on the basis of his overall marks". Dr Sklavos failed the 2010 written examinations. The idea that he did not fail because he was mistakenly invited to take the 2010 clinical examinations is untenable. 241 I do not accept that the College's explanation of the mistake made in Dr Sklavos's favour is a "red herring" as Dr Sklavos submitted. Given the above, I reject the submission that: while [the first, incorrect] spreadsheet showed Dr Sklavos as having obtained an overall pass mark for the 2010 written examinations, it included Dr Sklavos's correct marks for the DMI paper; in other words, there was no error in Dr Sklavos's DMI marks that were before the Board of Censors at the time that it met to consider who would be invited to the clinical examinations in 2010. Consistent with Proposition Four, Dr Sklavos would have been invited to the clinical examinations based on either the correct spreadsheet or the incorrect spreadsheet. 242 It is true that when it invited Dr Sklavos to take the clinical examinations, the College had his correct marks in DM I. However, there is no rational basis to doubt Dr Fischer's evidence that Dr Sklavos would not have been invited to the clinical examinations based on the correct overall results. If there be any inconsistency, Dr Fischer's evidence is preferable to that of Dr Corderoy given her role as Chief Censor at the time. It may be accepted that all of their evidence is a reconstruction in some sense. But it is not a reconstruction for the purpose of the proceeding (whatever Dr Fischer accepted under the pressure of giving evidence). It is the position she took immediately upon becoming aware of the mistake in 2010. It is consistent with the College's letter to Dr Sklavos on 13 August 2010 requiring that he re-sit the written examination. The idea that Dr Fischer was motivated by animosity against Dr Sklavos, so her evidence should not be accepted, is fanciful. It is Dr Fischer who recommended that the invitation to Dr Sklavos to sit the clinical examinations not be revoked, having regard to the difficulties he had experienced and the mistake that had been made in his favour. Moreover, Dr Fischer was prepared to accept that Dr Sklavos would be deemed to have passed the Fellowship examinations in 2010, had he passed the clinical examinations. The fact that he did not do so required the mistake to be disclosed (or else Dr Sklavos would have misapprehended his true performance to his potential detriment) and for the College to proceed on the true basis – that Dr Sklavos had not passed the 2010 written examinations. 243 I do not accept the submissions put that Dr Sklavos must be taken to have passed the 2010 written examination because of the various discussions and documents created within the College from 2010 onwards about how it would deal with "borderline" candidates in future. The fact that the College was moving (with some confusion and changes in position along the way) to a position whereby only candidates who achieved definite or clear passes in the written examination would be invited to take the clinical examinations does not mean that Dr Sklavos was such a candidate. He was not. Nor does it mean that the change was targeted at Dr Sklavos. That too is a fanciful notion founded only on the unreliable perceptions of Dr Sklavos. 244 In short, the relevant point is that Dr Sklavos never passed the written examination in 2010 and was able to sit the clinical examination only because of an error. An invitation made in error does not mean that he "passed" or "successfully completed" the written examination. He failed, but got the benefit of a mistake by the College. As such, the welter of evidence about what the College did in respect of "borderline" candidates is neither here nor there. 245 Proposition Five is that "in 2010 and 2011, even for candidates who did not pass DMI, there remained a discretion as to whether they were invited to the clinical examinations. If they were invited, they were successful in the written examinations". 246 Again, the focus on various discrepancies in the evidence is not particularly helpful. The witnesses called by the College were trying to remember policy changes from up to five years ago, when it is apparent that the policies were being developed over time, with various ideas being proposed, discussed and then modified. In this context, it does not matter that Dr Fischer thought the change abandoning the discretion for "borderline" candidates applied earlier or later than Dr Corderoy or Dr Baker. The relevant point remains that receiving an invitation to sit the clinical examinations by reason of a mistake does not transform a fail in the written examinations into a pass or "success". 247 The College's 2010 training program handbook advised (in terms consistent with an the earlier letter to trainees of 18 December 2009): 1. From 2010, there are four possible outcomes for a candidate who has attempted part or all of the Fellowship exam. 2. (i) the candidate who has completed the written Fellowship exam and has subsequently obtained a pass in the clinical viva will have passed the Fellowship Exam. (ii) the candidate who has attempted and passed the written Fellowship exam and has then progressed to the viva may be assessed as having failed the clinical viva, but due to their performance in the written papers, will be entitled to present to the viva exam only in the FOLLOWING year. (iii) the candidate who has attempted and passed the written Fellowship exam and has then progressed to the clinical viva who is then assessed as having failed the clinical viva may be advised that they are required to sit both the written and viva exams in the following or subsequent years. (iv) the candidate who is assessed as having clearly failed the Fellowship written paper will be advised of this and will not be admitted to the clinical viva. They will be eligible to represent for the Fellowship exam in subsequent years. 248 Although not a model of clarity, it is apparent that Dr Sklavos was within category (iv) and should not have been admitted to the clinical viva. It is also apparent that the real change the College was making in 2010 was to give to itself the capacity to make a candidate who had failed the clinical examinations re-sit the written examination even if they had passed the written examination (category (iii)). Previously, the pass in the written examination was able to be carried over. In other words, an invitation to sit the clinical examinations was not an indicator of success or a pass of the written examinations for all purposes. It was only taken to be such if the candidate managed to pass the clinical examinations. Dr Sklavos was not in category (iii) and thus, in truth, was unaffected by the change. The attempt to suggest he was affected by the change is based on the notion that the College's mistake transformed his fail in the written examination into a pass, merely because he was wrongly invited to take the clinical examinations. Given the confusion that the four categories was liable to create, it is little wonder that the College changed its position again in 2011, as set out above. 249 Accordingly, the proposition that "[i]f they were invited [to sit the clinical examinations], they were successful in the written examinations" is inaccurate. If a candidate was invited to sit the clinical examinations and passed the clinical examinations then, and only then, would that candidate be taken to have been successful in the written examination. Had he passed the clinical examinations in 2010, Dr Sklavos would have been treated as such a candidate despite failing the written examination. 250 Proposition Six is that "[i]n 2010, Dr Sklavos was successful in the written examinations in the sense given in Proposition One, in that (a) he comfortably passed DMI, in the sense described in Proposition Two, and (b) he was invited to sit the clinical examinations". 251 For the reasons already given, I do not accept any part of this proposition. 252 Proposition Seven is that, if proposition three is not accepted (which it is not), then in any event it should be found that "the marks put forward by the College in these proceedings do not establish, or should not be accepted as establishing, proving or evincing that Dr Sklavos failed or did not succeed in the 2010 and 2011 written examinations" and "Dr Sklavos came close to being successful in the written examinations in 2010, and even closer in 2011". 253 I do not consider that these findings can be made. While Dr Sklavos has established various errors in the transcription and calculation of the marks for individual questions, which would necessarily impact on everyone's result to some extent (because of the nominal pass mark approach), no inference can be drawn that any of the errors had a material effect on the results. 254 Nor do I consider that the concept of Dr Sklavos coming "close" to passing the written examinations in 2010 and 2011 is one that should be entertained. As noted, the College's approach, at least in 2010, was highly nuanced for "borderline" candidates. There is no evidentiary basis upon which I could purport to stand in the shoes of the College and assess the significance of Dr Sklavos's results in respect of some questions compared to others. Nor can I assess the quality of his answers (even if they were available). All I can say is that in 2010, he failed the written examination having achieved an overall 69.3% compared to a notional pass mark of 72%. Otherwise, he was the third lowest candidate for that year. Further, even a candidate who scored 74.1% was assessed as having failed, I infer because of a poor result in DM I. The candidate who scored 68.4% was also assessed as having failed. Four candidates failed and 16 clearly passed, their marks ranging from a low of 76.0% to a high of 84.4%. One candidate achieved 73.0%, which is shown in a different colour on the results, and may have been treated as a pass or a borderline pass. In 2011, Dr Sklavos failed the written examination having achieved an overall 65.7% compared to a notional pass mark of 67%. Otherwise, he was the fourth lowest candidate for that year. A candidate who achieved 66.9% is shown in a different colour which (again) might or might not indicate a continuation of the concept of borderline results. If that candidate was taken to have passed, then the results in the pass category ranged from 66.9% to 81.4%. Dr Sklavos also failed DM I (50.6% compared to 52.6%) which, as noted, is seen as the most important examination. He passed DM II (70.8% as compared with the notional pass mark of 68.8%). He passed PD (75.6% compared to 74.2%). Given this there is no doubt that, but for the mistake to his benefit, Dr Sklavos was treated consistently with all other candidates in 2010 and 2011. 255 Having regard to his performance in the 2011 examinations, the proposition that it cannot be concluded that "Dr Sklavos failed or did not pass the 2011 written examinations and, further, that Dr Sklavos came very close to passing the 2011 written examinations" is incorrect. The College's documents show that Dr Sklavos failed the 2011 written examination, just as he failed the 2010 examinations. The errors in marking pointed out for Dr Sklavos have not been shown to reach any threshold of materiality. It was for Dr Sklavos to prove, if he so wished, that the results would have been different if no errors had been made. He has not attempted that task. Furthermore, as noted, his failure in the 2010 clinical examinations is not in issue. 256 Proposition Eight is that for "the purpose of considering Proposition Seven, the Court should not take the overall marks proffered by the College in these proceedings as being definitive. Instead, (a) to the extent that the overall marks proffered by the College can be verified against the College's incomplete production of the underlying records for 2010 and 2011, they are shown to be infected by errors and inconsistencies, (b) the overall marks proffered by the College for 2010 and 2011 are therefore unreliable, and (c) in evaluating the effect of that unreliability, it should be inferred from the College's incomplete production of the underlying records that, if the College had produced all of the underlying records, they would not assist to establish that Dr Sklavos failed or did not succeed in the 2010 and 2011 written examinations". 257 For the reasons given, I do not accept any part of this proposition. To the extent more might need to be said, it may be accepted that Dr Sklavos's solicitor asked for all records relating to Dr Sklavos's performance in the examinations to be retained. It is true that not every marking document has been able to be located by the College. Given the extent of document production sought by Dr Sklavos on numerous occasions and the efforts of the College to locate documents apparent from Mr Wills' evidence, I reject the submission that the College has negligently failed to retain documents. This case is so far from one in which the destruction of documents would support any adverse inference against the College in Dr Sklavos's favour that the issue should not have arisen at all. First, there is no evidence of destruction. It is simply that some documents which would have existed can no longer be found. Second, the documents that have been produced are extensive. Third, the documents that have been produced support the College's view of the facts. Given this, fairness does not require that the Court infer that "the documents relevant to Dr Sklavos's (and other candidates') performance in the 2010 and 2011 DM I papers would not have assisted the College to demonstrate that Dr Sklavos failed the 2010 and 2011 written examinations". Such an inference is simply not open in the circumstances and is inconsistent with the extensive evidence that does exist. 4. THE CONTRACT CLAIMS 4.1 Dr Sklavos's case 258 Dr Sklavos contends that, upon entry into the College's training program, he also entered into a contract with the College by which he became a trainee of the College and agreed to submit to the program of training and assessment provided by the College as the path to admission as a Fellow and to practise in Australia as a specialist dermatologist (referred to as the traineeship contract). It is said that all the requirements of a valid contract are present as: (1) There were identifiable parties capable of entering into a contract. (2) There was offer and acceptance, in the sense that Dr Sklavos was offered a position on the training program in writing and the applicant accepted this offer in writing. (3) There was mutual consideration, in the sense that: (a) Dr Sklavos paid a fee upon entry into the training program, as well as each year he was enrolled as a trainee, up until 2011; (b) Dr Sklavos agreed to work as a dermatology registrar and submit to the College's program of training and assessment; and (c) The College agreed to provide the program of training and assessment. (4) On an objective assessment of the state of affairs between the parties, it is clear that the parties intended to enter into contractual relations as: (a) Dr Sklavos and the College were entering into a serious and long-term arrangement; (b) Both parties were making a substantial commitment; and (c) The language of the document which Dr Sklavos signed, the "Code of Conduct – trainees of the College" (referred to as the acceptance document) was strongly indicative of contractual intention. In particular, that document set out requirements that trainees were "required to comply with" and conditions that he agreed to, and also set out the "rights and entitlements" of trainees. 259 Dr Sklavos's case is that the traineeship contract contained certain express and implied terms. 260 The express terms are said to derive from four documents incorporated into the traineeship contract and particularised as: (i) the acceptance document signed by Dr Sklavos on 27 February 2007, (ii) the College's Code of Conduct, (iii) the College's Training Program Handbook, as varied from time to time, and (iv) the College's Regulations, as varied from time to time. 261 The College denied the existence of any contract between it and Dr Sklavos as alleged. 4.2 Existence of a contract 262 In Shahid v Australasian College of Dermatologists [2008] FCAFC 72; (2008) 168 FCR 46 (Shahid), Jessup J (with whom Branson and Stone JJ agreed at [1]) dealt with a claim by a trainee against the College in which the trainee sought "declarations, injunctions and other remedies in relation to the process by which the College selected a practitioner other than herself to be recommended for employment at the hospital as trainee registrar in dermatology". The hospital in question was one in which only a single accredited training position organised by the College was available. The position was made available on the College's recommendation. As Jessup J explained at [35], "it was the College, not the hospital, that conducted the selection process and selected the applicant who would be successful". The trainee lodged three "appeals" within the College against her lack of success in obtaining the position for which she had applied. This appeal process was provided for in the training handbooks of the College. At [37], Jessup J recorded that "[t]he appellant also alleged that the legal framework under which she lodged appeals in three of the relevant years was contractual, and that the College had breached its contract by not providing rights of appeal as it had promised". The College contended that there was no intention to create legal relations and thus no contract. Justice Jessup rejected that contention, noting the following: [213] The general context within which the College's promise was made was provided by the training program as a whole. For the College, that program was clearly a subject of the greatest importance. It was the means by which the College established and maintained standards within the profession. The annual handbooks were both detailed and comprehensive, and left the reader in no doubt as to the importance of the matters covered thereby or as to the significance of the obligations undertaken by, and of the standards expected of, practitioners. From the viewpoint of an individual practitioner participating (or seeking to participate) in the program, undoubtedly the subject matter of the transactions covered was weighty. For him or her, to undertake the training program involved a major commitment in time and energy. The purpose was to embark upon a new and more demanding career. The opportunity costs involved in undertaking a program of this kind are obvious. For the parties in the present case, therefore, the context was a businesslike one. For the College, training was a significant function and clearly one of the reasons for which it existed. For the appellant, training was the means by which she would, eventually, change the way she worked. It is, in my view, quite improbable that the parties to an agreement made in such a setting would not intend their agreement to be binding in law. [214] The agreement between the appellant and the College which the trial Judge held was not accompanied by an intention to create legal relations involved an appeal from the decision of the selection committee. In each case the appellant paid a fee of not insubstantial proportions, in return for which the College promised that there would be an appeal with the characteristics alleged by the appellant. Where one party makes, and the other party accepts, a money payment as consideration for a promise by the other to provide some service or to bestow some benefit, the proposition that each intended the promise to be taken seriously and to carry the conventional legal consequences does seem rather obvious. This is not a case with unusual or idiosyncratic features. Here the parties were at arm's length. Their only relationship was that constituted by the training program as a whole and by the appellant's status as a provisional trainee. That the disinterested bystander would think that the appellant would pay, and that the College would accept, a fee in the sum of $1,500 or $5,000 (plus GST in each case) without any intention that the College would, as a matter of law and not only in honour, be obliged to perform its promise seems quite improbable. [216] For the reasons set out above, I take the view that the transaction by which the appellant lodged her appeal in each of the relevant years was accompanied by a mutual intention to create legal relations. Any objective assessment of the terms of the agreements alleged, and of the circumstances surrounding their making, could, in my view, lead to no other conclusion. 263 The reasoning of Jessup J reflects the requirement that the intention to create legal relations be determined objectively, having regard to the "the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding considerations" (Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 2; (2002) 209 CLR 95 at [24]–[25]). While applying to one specific aspect of the relationship between a trainee of the College and the College (the appeals process in respect of allocation of accredited training positions), his Honour's reasons also disclose the serious, business-like context of the overall relationship between the College and its trainees. 264 In this case, the letters dated 7 September 2006 and 19 January 2007 confirm the context of the overall relationship between the College and Dr Sklavos as being of the type Jessup J described. The 2006 letter states that Dr Sklavos had been "appoint[ed] to the Training Scheme" and would be "required to fulfil the requirements of the Training Program as set out in the College Training Program Handbook". As a NSW trainee, Dr Sklavos would be required to rotate on a yearly basis through training institutions "as directed by the NSW Director of Training" and to "attend educational sessions". The letter, authored by then Chair of the College's NSW Faculty, Dr Fischer, asked Dr Sklavos to "write to me formally to accept the position and terms of training". By email dated 1 September 2006, Dr Sklavos responded to an earlier letter foreshadowing his invitation to the training scheme, confirming that he accepted. The 2007 letter describes the program as a challenging one which will require "considerable effort and dedication". This is accurate given that, in 2007, the program consisted of five years' training. The letter identified certain documents as providing important information for trainees: a document titled "Information for First Year Trainees", the Training Program Handbook 2007, and the Training Program Record Book. The letter directed trainees that it was "essential" to "read these documents carefully". The Training Program Handbook identified important dates including the date for payment of the annual training levy. For 2007, the training levy was $1,100.00 plus GST. 265 The acceptance document states as follows: CODE OF CONDUCT – TRAINEES OF COLLEGE CLASSIFICATION AND RESPONSIBILITIES 1. Trainees occupying accredited training programs of the Australasian College of Dermatologists or who have been selected by a State Selection Committee for an accredited registrar training program in the following year are classified as 'Trainees of College'. 2. 'Trainees of College' are required to comply with the following requirements: (a) Not to practise in the capacity of a specialist dermatologist, skin specialist, skin cancer specialist, cutaneous surgeon, or any other such classification. (b) Not to accept any titled position, e.g. consultant dermatologist, locum consultant dermatologist, acting consultant dermatologist, etc. (c) Not to conduct themselves in a manner which brings the specialty of dermatology or the Australasian College of Dermatologists into disrepute. (d) To seek permission from College before participation in the teaching of dermatology either by way of lectures or talks to groups of general practitioners or the writing of articles for publication in educational journals and brochures aimed at general practitioners. (e) To take up whatever training positions they are directed to by the Director of Training of their State Faculty, including overseas positions. (f) To conduct themselves in an appropriate manner when attending official functions and meetings of the Australasian College of Dermatologists. (g) To pay the trainee levy by 31 December. (h) To accept these requirements by signing an agreement at the time of payment of the trainee levy. (i) To acquaint themselves with the expectations and rights outlined in the Training Program Handbook. On acceptance of these requirements the individual will have his/her name placed on the register of trainees of College. Failure to agree to these conditions or to comply will lead to removal of the individual's name from the register and the loss of entitlement to continue in the College's training program. RIGHTS AND ENTITLEMENTS OF TRAINEES OF COLLEGE The rights and entitlements of trainees of College include: 1. Notification in writing by the Honorary Secretary of all training matters relevant to trainees of College including: scientific meeting dates, examination dates and venue, etc. 2. Attending the Annual Scientific Meeting of College. 3. Receiving The Australasian Journal of Dermatology. 4. All those outlined in the Training Program Handbook. CODE OF CONDUCT AND TRAINING PROGRAM HANDBOOK I have read the Code of Conduct for Trainees of the Australasian College of Dermatologists and agree to abide by it. I agree to the conditions that are set out in the Training Program Handbook of the Australasian College of Dermatologists concerning the training program as well as the Regulations and requirements concerning the examinations. My acceptance of the conditions is deemed by payment of the fees. 266 This document was signed by Dr Sklavos on 27 February 2007. 267 As was submitted for Dr Sklavos, viewed objectively, he and the College were entering into a serious and long-term arrangement involving substantial commitments. Given these circumstances, I consider that the elements required for the formation of a contract between the College and Dr Sklavos were present. At the most general level, Dr Sklavos and the College agreed that the College would provide to Dr Sklavos a place in its training program and Dr Sklavos agreed that he would take up that place, for which he would pay the training levy as the College required. Contrary to the College's submission, I consider that a contract came into existence between the College and Dr Sklavos. The real issue, in my view, is the terms of that contract. 4.3 Express contractual terms 268 As noted, the case for Dr Sklavos is that the traineeship contract incorporated certain provisions of the acceptance document signed by Dr Sklavos on 27 February 2007, the Code of Conduct, the Training Program Handbook, and the College's Regulations (the latter two, as varied from time to time). 269 In Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; (2014) 231 FCR 403 (Romero), the Full Court said: [34] One point that is clear is that whether or not a policy will be incorporated into a contract of employment will depend upon the parties' intentions as objectively ascertained: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]-[41]. [35] In approaching the task of ascertaining the parties' intention, the starting point will be the language of the contract. The language adopted is to be viewed in context, not in abstract isolation. Further, regard must be had to the purpose and object of the transaction. [36] In Toll (at [40]), the High Court said: This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. (footnotes omitted) [37] The observations in Toll were directed both to the question of whether there is a binding contract and also to what it contains. The focus in the present analysis is on the latter question. As Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 (at [10]): In Codelfa, Mason J (with whose judgment Stephen J and Wilson J agreed) referred to authorities which indicated that, even in respect of agreements under seal, it is appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question were used and, from those circumstances, to discern the objective which the parties had in view. In particular, an appreciation of the commercial purpose of a contract: "presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating." Such statements exemplify the point made by Brennan J in his judgment in Codelfa: The meaning of a written contract may be illuminated by evidence of facts to which the writing refers, for the symbols of language convey meaning according to the circumstances in which they are used. (footnotes omitted) [38] In McCormick v Riverwood International (Australia) Pty Ltd (1999) 167 ALR 689 (McCormick) at first instance, Weinberg J (whose approach was upheld on appeal in Riverwood (2000) 177 ALR 193), set out the following principles (at [74]-[77]): [74] In ascertaining the meaning of an expression contained in a contract such as the requirement that the applicant "abide" by all "Company Policies and Practices currently in place, any alterations made to them, and any new ones introduced", the approach to be adopted differs from that taken in statutory interpretation. It must rest on the premise that the contract was made in good faith with the object of at least potential mutual benefit by due performance. [75] The court approaches the task of ascertaining the meaning of the parties' expressions from an objective point of view. In the case of a disputed clause in a commercial agreement "the essential question is what would reasonable business people in the position of the parties have taken the clause to mean": Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834 at 840 per McGarvie J. In Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201 Lord Diplock said: … if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense. [76] The parties may be bound by the meaning reasonably to be inferred in the circumstances, even if it does not conform to the interpretation advanced by either. It is not necessary that a statement should be subjectively intended to be a term of a contract in order to be one; it is enough if it can reasonably be so understood. [77] In Cheshire & Fifoot's Law of Contract (7th Aust ed, 1997) it is stated (p 345) that: In interpreting the expressions of the parties, the court will consider them in their context. Except to the extent to which evidence is inadmissible, the court will as a matter of course take into account the objective background of the transaction, that is, its factual matrix, genesis and aim, and the common assumptions of the parties. 270 From the terms of the acceptance document which Dr Sklavos signed on 27 February 2007, I am satisfied that he agreed to be bound by the requirements set out in para 2 of that document (see above), as well as such provisions of the Code of Conduct and the conditions concerning the training program and the examinations as set out in the Training Program Handbook and the Regulations which, viewed objectively, would reasonably be seen as constituting contractual promises. Nor do I have any difficulty with the proposition that the obligations of Dr Sklavos were to comply with the relevant Training Program Handbook and the Regulations as varied from time to time. It must have been in the common contemplation of the College and trainees that these documents might vary and that the trainee would be subject to the current version as the trainee progressed through the training program over five (subsequently reduced to four) years (see, for example, Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193 (Riverwood) and Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 (Goldman Sachs)). 271 For its part, the College expressly agreed that Dr Sklavos had the "rights and entitlements of trainees" of the College, identified as four in number, including "[A]ll those outlined in the Training Program Handbook". As the submissions for Dr Sklavos also pointed out, however, where one party agrees to the conditions of a document which might deal with the obligations of both parties, it is not difficult to conclude that, when viewed objectively, the parties intended that each might be bound by the conditions of the document as relevant (as, for example, in James v Royal Bank of Scotland [2015] NSWSC 243 at [38]-[40] and Riverwood at [106]-[107] and [146]-[150]). 272 The conclusion that the four documents on which Dr Sklavos relied, the acceptance document of 27 February 2007, the Code of Conduct, the Training Program Handbook and the Regulations (insofar as the Regulations dealt with matters relevant to training) might contain provisions which might form part of the traineeship contract is not the end of the matter. A further question is which, if any, statements in those documents constitute a contractual term as between the College and a trainee capable of enforcement. This question must also be answered objectively having regard to the "surrounding circumstances known to the parties, and the purpose and object of the transaction" (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40] and Goldman Sachs at [23]). 273 Before dealing with the alleged terms, it should be noted that the College's Constitution provides for certain matters including membership of the College and election as a Fellow (cl 11), cessation or suspension of membership (cl 14), office holders (cl 20), the Board of Directors (cll 21-23), the Board of Education and the Board of Censors (cl 27), committees and advisory boards (cl 28), and the making of Regulations (cl 29). Clause 29.1 provides that: The Board shall have power from time to time to make, vary and rescind regulations in relation to the College. Any regulations so made and for the time being in force and which are not inconsistent with the Constitution shall be binding on Members and shall have full effect accordingly. 274 No term on which Dr Sklavos relies in his contractual claims is said to be founded on the College's Constitution. Insofar as the Regulations are concerned, Dr Sklavos is not a Member of the College (as defined in cl 2.1.12 of the Constitution). Accordingly, his claims are based on the incorporation into the alleged traineeship contract of the four documents identified (of which the Regulations is one), not the Constitution. Various versions of the Regulations at different dates are in evidence. While there are some differences between the versions, most differences are not material. Unless otherwise indicated, I have used the version as at 15 May 2009. 4.3.1 The support and communicate term 275 The alleged term is that: The College will actively support and communicate with Dr Sklavos. 276 The source of the term is the Code of Conduct, page 6 of which states, under the heading "Relationship with the Profession": The College will actively support and communicate with Fellows and Trainees 277 I am unable to characterise this statement as a contractual promise by the College. The statement embodies a general aspiration (see, by analogy, Goldman Sachs at [161]). The goals of support and communication will mean different things to different people depending on their personality and life experience. There is no objective standard by which "active support" and "communication" can be judged. Moreover, the statement appears in a section dealing with the issue of the College's "relationship" with the profession, a relationship which will be different depending on each practitioner and trainee. The statement is surrounded by other aspirational goals for practitioners, such as that dermatologists "should build a professional reputation based on integrity and ability" and that the College "shall maintain, advance, and convey its specialised body of knowledge to future generations". The aspirational nature of these statements is consistent with the statement at the beginning of the Code that it sets out "general principles in relation to the practice of Dermatology". It would be startling if, for example, the College could sue a dermatologist in contract (who, by being a Fellow of the College has agreed to abide by the Code of Conduct) for not being prepared to discuss with a patient alternative treatments which are not scientifically proven (p 2) or for not being willing to pass on his or her knowledge to colleagues (p 7) or for not maintaining the "comfort" at all times of a patient involved in a teaching exercise (p 7). In my view, it would be equally startling if a trainee or practitioner could sue the College in contract for not actively supporting and communicating with the trainee based on the statement in the Code of Conduct. 278 Accordingly, while I do not exclude the possibility that there might be some statements in the Code of Conduct which are capable of constituting a contractual promise as between the College and a dermatologist or trainee, I do not accept that the statement that the College will actively support and communicate with Fellows and trainees is such a statement. 4.3.2 The bullying and harassment term 279 The alleged term is that: Dr Sklavos will be provided with education and supervision in an environment that is free from bullying and harassment. 280 The source is the statement in the Code of Conduct at p 7 that: Trainees should be provided with education and supervision in an environment that is free from bullying and harassment. 281 Again, the context (being the Code of Conduct) speaks against any contractual promise by the College. The statement appears in a section dealing with teaching in which dermatologists are required, as noted, to pass on their professional knowledge and to ensure the "comfort" at all times of a patient involved in a teaching exercise. Viewed objectively, this part of the Code of Conduct cannot be characterised as creating contractual promises as between the College and dermatologists or trainees. The language used in the statement is hortatory not absolute – it is expressing a goal that trainees "should" be trained in such an environment. Yet the reality is the trainees agreed to rotate through different training institutions, staffed by different dermatologists and others, none of which the College owned or controlled. Every trainee must be taken to have known that during training at the various training institutions they would be employed by, and subject to, the circumstances prevailing at the particular training institution, the College's relationship with the institution being limited to accreditation of it for training purposes and no more. As such, every trainee would be taken to know that, while the College might hope that trainees would not be subjected to bullying and harassment at any institution through which the trainee was rotated, it had no day-to-day or practical control over the circumstances at any institution or the behaviour of any individual within that institution (similar to the circumstances described in Goldman Sachs at [298]). As such, viewed objectively, no-one would think that the College had contractually bound itself to such an alleged term. 4.3.3 The harassment and discrimination free term 282 The alleged term is that: Dr Sklavos is entitled to a process of selection and a work environment which is safe from harassment and discrimination. 283 The source is the Training Program Handbook and the Regulations (as varied from time to time). 284 Each version of the Training Program Handbook contains a statement to the same effect as the 2007 Handbook which, under the heading "Rights and Responsibilities of Trainees", says: Trainees have a right to a process of selection and a work environment which is safe from harassment and discrimination and that operates under the broad ethical principles previously enunciated. 285 The "broad ethical principles previously enunciated" are said to be as follows: In practice dermatological trainees should follow broad principles of medical ethical behaviour that include: • Respect for the dignity, safety, privacy and confidentiality of every patient and the achievement of the objectives relating to attitudes outlined in the previous section. • Provision of the best possible dermatological care when dealing with patients and efforts to improve the quality of the dermatological services available to the community. • Ensuring that patients are given accurate information about their condition and the treatment options so that they are able to make an informed decision about their healthcare. • Balancing the likely benefit to the patient against the risks of the procedure or treatment. • Ensuring clinical research follows appropriate ethical guidelines set down by responsible bodies. • Sharing dermatological knowledge and not misusing knowledge or skills. • Ensuring that relationships with the pharmaceutical industry follow the principles enunciated in the College guidelines. 286 I do not accept that the statement involves a contractual promise. Although the language of "rights" and "responsibilities" is used, the statement appears in a section of the Training Program Handbook dealing with [O]ther Training Considerations". This includes such things as ethical principles. The ethical principles expressed are ones dermatologists "should" follow. The rights and responsibilities of trainees are said to include the responsibility of accepting rotations to the training institutions which, as noted, trainees would know are accredited but not controlled by the College. Other "rights and responsibilities" disclose that no-one could have viewed these matters as involving contractual promises. For example, trainees are said to have an obligation to be "hard working, honest, punctual and diligent and to achieve the objectives of the curriculum". Yet no-one would sensibly think a trainee could be sued for breach of contract for being habitually lazy or late. Nor could it be a contractual requirement in fact to achieve the objectives of the curriculum (although failure to do so would permit termination for unacceptable performance). Trainees are also "expected to have a willingness to accept criticism", another "responsibility" which could not be contractual in nature. 287 Insofar as the Regulations are concerned, the case for Dr Sklavos used the 2009 Regulations as an example. They contain the following provisions: Anti-Discrimination and Harassment Policy for Fellows on the College Board or College Committees Purpose The College considers discrimination and harassment unacceptable behaviour that will not be tolerated under any circumstances. Fellows acting as College representatives (on the Board or College Committees) are responsible for their behaviour and should ensure an environment free of discrimination and harassment in the workplace or while providing goods and services in the public arena. Obligations of Fellows in these circumstances are generally set out in the College's Code of Conduct. This policy applies where Fellows act on behalf of the College or undertake College functions, such as Fellows on the Board or on College Committees. Board members, particularly, are expected to set an example for College staff, contractors and representatives. Board members often act as the representative or agent of the College and, accordingly, liability for the conduct of Board members may be borne by the College as well. It is important that the College meets its legal obligations as well as establish an appropriate Code of Conduct. This policy amplifies the College Code of Conduct in relation to professional conduct and discrimination and harassment. This policy also details the rights of all Fellows, staff and contractors to object to harassment or discrimination. Individual who use this right responsibly will not be subjected to subsequent unfair treatment or victimisation. Legislative Obligations Discrimination and harassment (including sexual harassment) is prohibited at law. … Conduct 4 A Fellow shall not, in the course of their duties for the College, unlawfully discriminate or harass:- • an employee of the College; • a contractor of the College; • a member of the public; • another Fellow, Board member or vocational registrar. 5 A Fellow must not discriminate against another Fellow, a Board member or a member of a Committee of the College (who may not be a Board member) in the performance of his or her functions for the College. 6 A Fellow must not sexually harass another Fellow, or a member of the Board or a member of a Committee of the College (who may not be a Board member) in the performance of his or her functions for the College. 7 A Fellow shall not victimise another person, or subject a person to any detriment because that person:- • has made a complaint under College Policies; • has brought proceedings under College Policies; • has, or proposes to, give evidence or information in connection with proceedings, under College Policies. It will not be unlawful discrimination if the conduct is exempt under anti-discrimination law. Responsibility The College has a duty to prevent discrimination and harassment and may be held responsible if it occurs, unless reasonable steps have been taken to eliminate the discrimination or harassment. … Anti-Discrimination and Harassment Policy for Trainees Purpose The College considers discrimination and harassment unacceptable behaviour that will not be tolerated under any circumstances. Trainees are responsible for their behaviour and should ensure an environment free of discrimination and harassment in the workplace, in the course of College activities, in training, or while providing goods and services in the public arena. Obligations of Trainees in these circumstances are generally set out in the College's Code of Conduct. Trainees should observe the Code of Conduct and Code of Practice as equally applicable to them, as to Fellows. This policy amplifies the College Code of Conduct in relation to professional conduct and discrimination and harassment. This policy also details the rights of all Trainees to object to harassment or discrimination. Individuals who use this right responsibly will not be subjected to subsequent unfair treatment or victimisation. … Conduct 8 A Trainee shall not, in the workplace, in the course of College activities, or in training, unlawfully discriminate or harass:- • an employee of the College; • a contractor of the College; • a member of the public; • another Fellow; • another Trainee. 9 A Trainee shall not victimise another person, or subject a person to any detriment because that person:- • has made a complaint under College Policies; • has brought proceedings under College Policies; • has, or proposes to, give evidence or information in connection with proceedings, under College Policies. It will not be unlawful discrimination if the conduct is exempt under anti-discrimination law. Responsibility The College has a duty to prevent discrimination and harassment and may be held responsible if it occurs, unless reasonable steps have been taken to eliminate the discrimination or harassment. If Discrimination/Harassment Occurs A complaint against a Trainee, in relation to discrimination or harassment under this Policy will be dealt with through the office of the Secretary. A complaint against a Fellow under this Policy will be dealt with under the College Policy "Procedures for Resolving Discrimination, Harassment and Bullying Complaints Against Fellows and Trainees". All grievances relating to discrimination and harassment will be dealt with promptly, sensitively and confidentially. Any investigation will be carried out in an impartial and fair manner. It is recognised that, if the aggrieved person is dissatisfied with the way their complaint has been dealt with, or the recommended resolution, the person is entitled to lodge a complaint with the relevant statutory bodies under anti-discrimination law. … Bullying Policy for Trainees Purpose The College considers bullying unacceptable behaviour that will not be tolerated under any circumstances. Trainees are responsible for their behaviour and should ensure an environment free of bullying. Obligations of Trainees in these circumstances are generally set out in the College's Code of Conduct. Trainees should observe the Code of Conduct and Code of Practice as equally applicable to them, as to Fellows. This policy amplifies the College Code of Conduct in relation to professional conduct and bullying. This policy also details the rights of all Trainees to object to bullying. Individuals who use this right responsibly will not be subjected to subsequent unfair treatment or victimisation. Legislative Obligations The College has a statutory obligation to provide a safe workplace for it [sic] staff and representatives - free from the stress and harassment that bullying can cause. Some bullying will also constitute discrimination and harassment, in contravention of equal opportunity and anti-discrimination laws. … Conduct 10 A Trainee shall not, in the workplace, in the course of College Activities, or in training, bully:- • an employee of the College; • a contract worker of the College; • a member of the public; • another Fellow; • another Trainee. 11 A Trainee shall not victimise another person, or subject a person to any detriment because that person:- • has made a complaint under College Policies; • has brought proceedings under College Policies; • has, or proposes to, give evidence or information in connection with proceedings, under College Policies. Responsibility The College has a duty to prevent bullying. If Bullying Occurs A complaint against a Trainee, in relation to bullying will be dealt with through the office of the Secretary. A complaint against a Fellow under this Policy will be dealt with under the College's Policy "Procedures for Resolving Discrimination, Harassment and Bullying Complaints Against Fellows and Trainees". All grievances relating to bullying will be dealt with promptly, sensitively and confidentially. Any investigation will be carried out in an impartial and fair manner. 288 While the provisions of the Regulations seem to focus more on trainees not harassing or bullying others, and trainees are a curious omission from the list of persons Fellows must not discriminate against or harass, I am prepared to accept that as trainees are members of the public, Fellows must not discriminate against or harass trainees. 289 As to the College, it is clear from these provisions that it did no more than recognise that it has legal duties which might make it responsible for failing to prevent discrimination, harassment or bullying. Moreover, the Regulations provide their own remedy for discrimination, harassment or bullying which, in my view, speaks against any contractual obligation on the part of the College to any Fellow or trainee to ensure safety from harassment and discrimination by reason of these provisions. The remedy is to make a complaint which will then be dealt with in accordance with the College's "Procedures for Resolving Discrimination, Harassment and Bullying Complaints Against Fellows and Trainees". I consider that, if anything amounts to a contractual promise as between the College and a trainee, it is that a trainee's complaint against a Fellow will be dealt with in accordance with the procedures in this policy. However, I am unable to accept that the College entered into a contract with each trainee, binding itself to provide them with a workplace free from discrimination, harassment or bullying. The College could not do so for reasons already explained. 290 The statement that the College "is committed to providing a workplace free of all forms of discrimination, harassment and bullying as required by law" on p 45 of the Regulations does not lead to a different conclusion. The statement appears in the procedures for resolving complaints. It is apparent that the statement is one of the intention of the College, an intention to be achieved in part through the policies identified in the section and the complaints procedure for which those policies provide, including the dispute resolution procedures which are also set out in this section. The statement does not embody a contractual promise by the College to any Fellow or trainee to provide a workplace free from all forms of discrimination, harassment and bullying as required by law. 4.3.4 The diligence, honesty and respect term 291 The alleged term is that: The College's committees responsible for developing and running the training and assessment system will discharge their duties with diligence, honesty and respect for trainees. 292 The source is the Training Program Handbook. Dr Sklavos noted that the 2007 Handbook said that the responsibilities of the College included that the Board of Censors discharges its duty with diligence, honesty and respect for trainees. From 2009 this obligation was broadened to refer to the "College committees responsible for developing and running the training and assessment system". 293 The statements appear in the same section of the Training Program Handbook as the rights and responsibilities of trainees, which I consider to be non-contractual statements. This is confirmed by the context in which the so-called responsibilities appear, located under the sentence: "[I]n the relationship that exists between College and its trainees the following principles will apply regarding the College". The College's first responsibility is said to be that "there is an ongoing commitment by College to refine and develop the training and examination process so that trainees develop clinical skills to provide the best possible dermatological care". This is an aspirational, not a contractual, statement. It is consistent with the statements being principles which characterise the intended relationship, not contractual promises. While there is also a reference to ensuring "that an appeal mechanism exists" under this sentence as the College's third responsibility, it will be noted that there is no identification of this appeal mechanism. It appears that this is a reference to Appendix 3 to the Training Program Handbook. Appendix 3, which details the requirements for an Appeals Standing Committee and the procedures under which it operates, might well have contractual force (see Shahid). The aspirational statement that the Board of Censors discharge its duty with diligence, honesty and respect for trainees is of a different character. The College does not have control over the conduct of individual Fellows. As noted, fellows are not employees of the College. They are volunteers. Further, the concepts of diligence and respect (perhaps even honesty) mean different things to different people. In the context of statements about the principles of the relationship between the College and trainees, I am unable to conclude that the College contractually promised trainees that members of the Board of Censors would discharge their duties with diligence, honesty and respect for trainees. The College no doubt hoped that all Fellows dealt with each other, trainees, and employees of the College with honesty, diligence and respect but that is not the same as concluding that the College made a contractual promise to trainees in this regard. Given that the College was not practically able to make this promise it is objectively unlikely that the College and any trainee could have viewed this statement as having contractual force. 4.3.5 The fairness term 294 The alleged term is that: The College will ensure that Dr Sklavos is treated fairly in an environment which is free from embarrassment, discomfort, humiliation or intimidation. 295 The source is the Regulations which in a section headed "[S]exual Harrassment" state: The College adopts in principle the sexual harassment policy as drafted by the Human Rights and Equal Opportunity Committee. The College is committed to ensuring all registered trainees of College are treated fairly in an environment which is free from embarrassment, discomfort, humiliation or intimidation. 296 Leaving aside the fact that the context indicates that the issue is sexual harassment (about which Dr Sklavos has made no complaint at any time), I do not accept that the statements give rise to a contractual promise. Again, they are an expression of the College's commitment, in the sense of intention, desire and hope of providing this kind of environment through its various policies and procedures (see, for example, Goldman Sachs at [311]). They are not a promise that such an environment in fact will be provided. All the reasons already given (the rotation through separate institutions, the lack of the College's control over those institutions and its Fellows, the practical impossibility of such a promise being fulfilled in contrast to having a goal of creating such an environment etc) work against the characterisation of any such statement as one having contractual force. 4.3.6 The fair assessments term 297 The alleged term is: The College's Board of Censors will ensure that the College's assessment strategies, methods and instruments are fair, transparent, valid and reliable. 298 The source of the term was said to be the Regulations from 12 August 2009 onwards. The statement appears in a section of the Regulations (from 12 August 2009) as follows: Objectives of the Board of Censors 1 To oversee the development of assessment blueprints based on the competencies set out in the curricula that ensure: • all of the skills, knowledge and behaviours documented in the curricula are assessed using appropriate assessment methodologies that can be demonstrated to be both valid and reliable. 2 To ensure that assessment strategies, methods and instruments are: • Fair • Transparent • Valid • Reliable • Encourage deep learning • Require learners to demonstrate that they have attained the levels of understanding and performance required for safe practice within their scope of practice 3 To administer and/or oversee the administration of examinations and assessments as appropriate. 4 To systematically review and evaluate the assessment blueprint, strategies, methodologies and instruments to ensure they continue to be valid, reliable and remain aligned with the curricula. 5 To use information derived from review and evaluation of the examinations and assessment processes to inform the preparation and conduct of future examinations and assessments. 6 To monitor international trends in assessment practice and methodology with a view to informing the ongoing evolution of College assessment programs. 7 Use information derived from assessments and examinations to oversee and advise on a trainee's progression of Fellowship. 8 To oversee the accreditation of training positions and administer the process of accreditation review. To ensure accreditation of training positions is conducted in accordance with the College's accreditation process. To ensure training positions are accredited against criteria set out in the College curriculum and will enable trainees and trainers to meet the objectives of the College curriculum. 299 I do not consider that these statements involve any kind of promise by the College to trainees. They are statements of the College's objectives which it intends that the Board of Censors should fulfil. That this is so is apparent from the provisions appearing under the heading "Objectives of the Board of Censors". It is confirmed by the generality of the language, which involves contestable concepts such as fairness, transparency, validity, and reliability, let alone "deep learning". The statements are plainly exhortations by the College to members of its Board of Censors. They are not contractual promises by the College to trainees. 4.3.7 The no need to repeat written examination term 300 The alleged term is: If Dr Sklavos passes, or, in the alternative, is successful in or successfully completes, the written examination component of the College's Fellowship examinations but fails the viva voce component of the Fellowship examinations in the same year, he will be allowed to attend the viva voce examinations in the following year without having to repeat the written examinations in that year. 301 The source of the term, said to exist from 2009 until 2012 (when it was varied), is the Regulations. Regulation G.5 contains a number of provisions relating to eligibility to sit examinations. Regulation G.5(g) states: Candidates who pass the written component of the Fellowship Examination from 1994 (inclusive) onwards and who fail the viva voce component of these examinations will be allowed to attend the viva voce examinations the following year without repeating the written examinations, subject to satisfying Regulation 25 (d)… 302 I consider that the reference to Regulation 25(d) is a typographical error. It makes sense if it is construed as a reference to Regulation G.5(d), which provides a time constraint on eligibility. 303 From 16 December 2011, the Regulations (cl 7.14(f)) provided that: Candidates who pass the written component of the Fellowship Examination from 1994 (inclusive) onwards and who fail the viva voce component of these examinations will be allowed to attend the viva voce examinations in the following two years (a total of 3 attempts) without repeating the written examination … 304 It will be recalled that the acceptance document that Dr Sklavos signed on 27 February 2007 said that he agreed to the conditions set out in Regulations concerning the training program and examinations. 305 I consider that this provision of the Regulation is a contractual promise by the College to trainees. The statement is clear and specific. Eligibility to sit for an examination is of fundamental importance to a trainee and is wholly within the control of the College. While the College was free to change the Regulations, for so long as the relevant provisions were in force, I consider that the College was contractually bound to determine eligibility to sit for examinations as identified. While I do not consider there to be a material difference between the alleged term and the provision of the Regulation, the contractual term is that for which the Regulations provide. Viewed objectively it would be apparent that the full eligibility details for the examinations were as set out in the Regulations. Dr Sklavos was a "candidate" within the meaning of the Regulations in 2010, 2011 and 2012. If he had passed the 2010 written examination he would have been entitled to sit for the viva voce examinations in 2011 and 2012 without having to re-sit the written examination. As I have said, however, Dr Sklavos did not pass the 2010 written examination. Accordingly, the fact that he was required to re-sit the written examination in 2011 and would have been required to do so in 2012 could not constitute a breach of this contractual term. 306 In case it is thought that the Regulations are inconsistent with the various deliberations of the College about "borderline" candidates discussed above, I should not that all of those deliberations concern the concept of a "pass". It was for the College alone to determine what constituted a "pass" for its purposes. 4.3.8 The fair dealing in relation to disciplinary matters term 307 The alleged term is: Disciplinary matters will be dealt with fairly, promptly and in a manner consistent with the rules of natural justice, and the principles of natural justice will apply to all allegations and investigations concerning misconduct. 308 The source of the term is said to be the Regulations and the Training Program Handbook(s). In section G.12 of the Regulations headed "[D]ismissal from Training" this is said: This policy outlines the dismissal of a trainee from a College education and training program BACKGROUND It is College policy that all disciplinary and dismissal matters be dealt with fairly, promptly, and in such a manner as is consistent with the rules of natural justice. This policy relates to the principles for dismissal from training. … In instances of serious misconduct the trainee may be dismissed by the Board of Education without warning. In instances of misconduct which does not constitute serious misconduct, the Board of Education may determine that the trainee be counselled and given a probationary period in which to improve their behaviour. The principles of natural justice will apply to all allegations and investigations concerning misconduct and serious misconduct. This includes the right of the trainee to understand, consider and respond to the alleged misconduct. The trainee may be placed on interruption from the training program pending an investigation. The final dismissal letter must be issued to the trainee under the signature of the Chair of the Board of Education. The employing authority must be kept informed throughout the process and be provided with the opportunity to contribute where necessary. 309 The Training Program Handbook(s) from 2009 confirmed that it was the policy of the College that "all disciplinary and dismissal matters be dealt with fairly, promptly, and in a manner consistent with the rules of natural justice". 310 Although there is scope for debate about the meaning of fairness and promptness, the Regulations give content to the "principles of natural justice" in accordance with which investigations of disciplinary matters were to be conducted. The content was that trainees have a right to understand, consider and respond to the alleged misconduct. As with the eligibility requirement, this requirement is wholly within the College's control. It is practically capable of satisfaction. There is not a large area for debate about whether a trainee has or has not been given an opportunity to understand, consider and respond to alleged misconduct which might result in disciplinary action either by way of dismissal from the training program, counselling, imposition of a probationary period or interruption (which I understand to mean suspension) of training while an investigation is carried out. Disciplinary procedures are important to persons in the position of the College's trainees. The potential consequences of disciplinary action are serious. 311 As such, I am prepared to conclude that the College was contractually bound to investigate disciplinary matters consistently with the principles of natural justice by ensuring that in the course of any investigation of a trainee for disciplinary purposes the trainee would be given the opportunity to understand, consider and respond to the alleged misconduct before any final decision was made about the allegation. 4.3.9 The prevent bullying term 312 The alleged term is: The College will prevent bullying by College Fellows acting on behalf of the College or undertaking College functions. 313 The source is said to be the Regulations, which contain various statements including the following: Bullying Policy for Fellows on the College Board or College Committees Purpose The College considers bullying unacceptable behaviour that will not be tolerated under any circumstances. Fellows acting as College representatives (on the Board or College Committees) are responsible for their behaviour and should ensure an environment free of bullying. … Obligations of Fellows in these circumstances are generally set out in the College's Code of Conduct. This policy applies where Fellows act on behalf of the College or undertake College functions, such as Fellows on the Board or on College Committees. … This policy amplifies the College Code of Conduct in relation to professional conduct and bullying. … Conduct 1 A Fellow shall not, in the course of their duties for the College, bully:- • an employee of the College; • a contract worker of the College; • a vocational registrar of College; • a member of the public; or • another Fellow or Board member. 2 A Fellow must not bully another Fellow, or a member of the Board or a member of a Committee of the College (who may not be a Board member) in the performance of his or her functions for the College. 3 A Fellow shall not victimise another person, or subject a person to any detriment because that person:- • has made a complaint under College Policies; • has brought proceedings under College Policies; • has, or proposes to, give evidence or information in connection with proceedings, under College Policies. Responsibility The College has a duty to prevent bullying. If Bullying Occurs A complaint against a Fellow, in relation to bullying will be dealt with through the office of the Secretary. A complaint against a Fellow under this Policy will be dealt with under the College's Policy "Procedures for Resolving Discrimination, Harassment and Bullying Complaints Against Fellows and Trainees". All grievances relating to bullying will be dealt with promptly, sensitively and confidentially. Any investigation will be carried out in an impartial and fair manner. 314 Reference was also made to the statement in the various versions of the Training Program Handbook that the College "is committed to providing a workplace free from all forms of discrimination, harassment and bullying, as required by law", as well as the related policies. 315 Consistently with my conclusions above, I do not accept that these statements represent a contractual obligation on the part of the College to ensure that it will prevent bullying by College Fellows acting on behalf of the College or undertaking College functions. My reasons are also set out above, being the same as those for the alleged bullying and harassment, and harassment and discrimination free, terms. 4.3.10 The commitment to training term 316 The alleged term is: The College is committed to educating and training Dr Sklavos. 317 The source is the Training Program Handbook which in each relevant version said that the College is committed to "educating and training trainees". 318 I do not accept this to constitute a contractual promise. It is a general statement of the objective of the College. It reflects the College's state of mind – that it has by accepting Dr Sklavos into the program as a trainee decided that it will train him. It is not a promise by the College to continue to train Dr Sklavos irrespective of circumstances or in perpetuity. 4.3.11 The no reasonable barriers to assessment term 319 The alleged term is: The College will ensure that there are no unnecessary or unreasonable barriers to assessment that prevent Dr Sklavos from effectively demonstrating his competence. 320 The source of the term is the Training Program Handbook from 2011 onwards. In that version of the Handbook (and in the 2012 version) an annexure includes the "[P]olicy for Special Consideration in Trainee examinations and assessments". The policy includes the following provisions: Purpose It is the College's policy to ensure that there are no unnecessary or unreasonable barriers to assessment that prevent trainees from effectively demonstrating their competence. Scope This policy relates to trainees requesting special consideration due to adverse circumstances beyond their control occurring on or being known or becoming apparent prior to the day of an exam or assessment and also to trainees with established disabilities requesting reasonable assessment adjustments for circumstances which substantially affect performance and/or attendance. In accordance with this policy, there is a process whereby reasonable adjustments can be made for trainees with learning and/or physical disabilities, visual and/or hearing impairments. 321 The policy sets out procedures for trainees to request special consideration and the way in which a request will be dealt with by the College. 322 I do not accept that the annexure of this policy to the Handbook in 2011 and 2012 means that the College was contractually bound to ensure that there were no unnecessary or unreasonable barriers to assessment that might prevent Dr Sklavos from effectively demonstrating his competence. The objective of the policy is to ensure the lack of such barriers. The policy sets out procedures by which the objective may be achieved. If anything, it is the procedures themselves which have potential contractual effect, not the stated objective which the procedures are intended to facilitate. Thus, a trainee has a right to request special consideration. The College has an obligation to consider such a request. The consideration is carried out by the Board of Censors or Board of Education. There is a right of appeal. The Board of Directors is responsible for the further consideration on the appeal. These are matters which might be capable of founding a contractual promise by the College. They are the machinery provisions, within the control of the College, by which a stated aim may be achieved. The aim itself is a worthy one, but the aim is an aspiration not ultimately under the College's control and not practically capable of contractual enforcement. 4.4 Implied contractual terms 323 Certain terms were said to be implied as follows: • Each party agrees to do all such things as were necessary on its part to enable the other party to have the benefit of the contract. • The College agrees to act reasonably in exercising its powers under the traineeship contract. • The College agrees to act in good faith in the exercise of its contractual powers under the traineeship contract. • The College agrees to comply with the College's Regulations, including the Dismissal from Training Policy and the Bullying Policy for Fellows on the College Board or College Committees which form a part of the Regulations. 324 All of these terms were said to be implied by operation of law, and the latter two terms were also said to be implied because they were necessary for the reasonable or effective operation of the traineeship contract. 325 The submissions for Dr Sklavos referred to a number of decisions to support the implication of these terms. 326 In Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 at 607-8 Mason J noted that: It is easy to imply a duty to co-operate in the doing of acts which are necessary to the performance by the parties or by one of the parties of fundamental obligations under the contract. It is not quite so easy to make the implication when the acts in question are necessary to entitle the other contacting party to a benefit under the contract but are not essential to the performance of that party's obligations and are not fundamental to the contract. Then the question arises whether the contract imposes a duty to co-operate on the first party or whether it leaves him at liberty to decide for himself whether the acts shall be done, even if the consequence of his decision is to disentitle the other party to a benefit. In such a case, the correct interpretation of the contract depends, as it seems to me, not so much on the application of the general rule of construction as on the intention of the parties as manifested by the contract itself. 327 In CGU Workers Compensation (NSW) Ltd v Garcia [2007] NSWCA 193; (2007) 69 NSWLR 680 this was said: [131] The worker points to decisions of this Court recognising that some commercial contracts contain terms implied as a matter of law imposing an obligation of good faith and reasonableness in the performance of contractual obligations (Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 at 369; Burger King Corporation v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558 at 568 [159], 569 [164]; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 at [125]). [132] These cases do not establish that such an implied term is to be inserted into every contract or even into every aspect of a particular contract. [133] The putative implied term goes beyond the duty of cooperation recognised in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607–8. It presents as an affirmative obligation. As Gummow J pointed out in 1993, "[t]he implication of a term by operation of law, applicable across the whole spectrum of the law of contract, is a major step" (Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 at 97). He held that Australian law had not yet taken this step as regards an implied term of good faith and fair dealing in performance. This remains the situation (see Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228; JW Carter, Carter on Contract (2002) LexisNexis Butterworths Vol 1, Ch 11, [11–170]). [134] Such a duty may, however, be implied as a matter of law in specific classes of contracts or as a matter of fact to give business efficacy to a particular contract. The rules explaining how the respective implications are made differ and there has been criticism of earlier decisions of this Court for eliding them (see Elisabeth Peden, "When Common Law Trumps Equity: The Rise of Good Faith and Reasonableness and the Demise of Unconscionability" (2005) 21 Journal of Contract Law 266 at pp 231–33). This is not the case to address or resolve these matters. [135] Cases such as Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Insurance Cases ¶61–112 (McLelland J) and Distillers (discussed below) [Distillers Co Bio-Chemicals (Australia) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1] illustrate such implication in relation to the exercise of specific discretions in an insurance context. In Burger King, this Court perceived (at [163]) that obligations of good faith and reasonableness were more readily implied in standard form contracts, particularly if such contracts contain a general power of termination. Professor Carter and Dr Peden suggest that one area where there is a clear trend towards an implied requirement of good faith is "at least in connection with termination pursuant to an express term of the contract but perhaps more generally" (JW Carter and Elisabeth Peden "Good Faith in Australian Contract Law" (2003) 19 Journal Contract Law 155). [136] In determining whether the implication is to be drawn from a particular class of contract, courts ask a range of questions that include whether the contract would be effective without it, and whether the enjoyment of the rights expressly conferred would or could be rendered nugatory, worthless or perhaps be seriously undermined. The central criterion is one of "necessity", a matter to be tested against any applicable statutory policy (see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450; Breen v Williams (1995) 186 CLR 71 at 80, 102–3 and 124; Hughes Aircraft Systems International v Airservices Australia [1997] FCR 558; (1997) 76 FCR 151 at 193–5). 328 Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127 includes the following observations: [121] The implication of a contractual duty to cooperate and "to do all such things as are necessary … to enable the other party to have the benefit of the contract" is well established: Secured Income Real Estate (Aust) Ltd v St Martins Investment Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 ("Secured Income"); Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 ("Barker") at [26] and [37] (French CJ, Bell and Keane JJ) and [61] (Kiefel J). [122] Whether an implied duty of good faith is implied by law into contracts generally has not been resolved: Barker at [42]; cf Specialist Diagnostic v Healthscope [2012] VSCA 175; (2012) 305 ALR 569 at [86]. Even so, we accept that the authorities relied upon by the primary judge would support the implication of such a term in this case. [123] In Barker, discussing the implication of contractual terms in law, French CJ, Bell and Keane JJ said at [28] and [29]: [28] An implication in law may have evolved from repeated implications in fact. As Gaudron and McHugh JJ observed in Breen v Williams (1996) 186 CLR 71, some implications in law derive from the implication of terms in specific contracts of particular descriptions, which become "so much a part of the common understanding as to be imported into all transactions of the particular description.": (1996) 186 CLR 71 at 103, quoting Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 449 per McHugh and Gummow JJ. The two kinds of implied terms tend in practice to "merge imperceptibly into each other": (1996) 186 CLR 71 at 103, quoting Glanville Williams, "Language and the Law — IV", Law Quarterly Review, vol 61 (1945) 384, at p 401. That connection suggests, as is the case, that the "more general considerations" informing implications in law are not so remote from those considerations which support implications in fact as to be at large. They fall within the limiting criterion of "necessity", which was acknowledged by both parties to this appeal. The requirement that a term implied in fact be necessary "to give business efficacy "to the contract in which it is implied can be regarded as a specific application of the criterion of necessity. The present case concerns an implied term in law where broad considerations are in play, which are not at large but are not constrained by a search for what "the contract actually means." [29] In Byrne v Australian Airlines Ltd, McHugh and Gummow JJ emphasised that the "necessity" which will support an implied term in law is demonstrated where, absent the implication, "the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined" ((1995) 185 CLR 410 at 450) or the contract would be "deprived of its substance, seriously undermined or drastically devalued": (1995) 185 CLR 410 at 453. See also Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at 68 [78] per McHugh, Gummow and Hayne JJ. The criterion of "necessity "in this context has been described as "elusive": (Crossley v Faithful and Gould Holdings Ltd [2004] EWCA Civ 293; [2004] ICR 1615 at 1627 [36]) and the suggestion made that "there is much to be said for abandoning "(Pell, Treitel: The Law of Contract, 13th ed (2011), p 231 [6–043]) the concept. Necessity does, however, remind courts that implications in law must be kept within the limits of the judicial function. They are a species of judicial law-making and are not to be made lightly. It is a necessary condition that they are justified functionally by reference to the effective performance of the class of contract to which they apply, or of contracts generally in cases of universal implications, such as the duty to cooperate. Implications which might be thought reasonable are not, on that account only, necessary: University of Western Australia v Gray [2009] FCAFC 116; (2009) 179 FCR 346 at 376–377 [139]–[142]. The same constraints apply whether or not such implications are characterised as rules of construction. [124] At [36], the plurality said that the broad concept of "necessity" in this context could be defined "by reference to 'what the nature of the contract itself implicitly requires' [referring to Liverpool City Council v Irwin [1977] AC 239 at 254 per Lord Wilberforce]. It may be demonstrated by the futility of the transaction absent the implication. It is not satisfied by demonstrating the reasonableness of the implied term." 329 Having regard to these principles I am prepared to assume in favour of Dr Sklavos that there was implied into the traineeship contract terms to the effect that: each party agrees to do all such things as necessary on its part to enable the other party to have the benefit of the contract; the College will act reasonably in exercising its powers under the traineeship contract; and the College will act in good faith in the exercise of its contractual powers under the traineeship contract. 330 Insofar as the other alleged implied term is required – that the College agreed to comply with the College's Regulations, including the Dismissal from Training Policy and the Bullying Policy for Fellows on the College Board or College Committees which form a part of the Regulations – I doubt that the implication of any such term is possible, consistent with principle. In any event, I have already concluded that certain provisions of the Regulations constitute express terms of the traineeship contract (those relating to eligibility for examinations and investigation of disciplinary issues consistently with the principles of natural justice so that the trainee the opportunity to understand, consider and respond to the alleged misconduct before any final decision was made about the allegation). 331 Insofar as the case for Dr Sklavos might rely on other requirements of the Regulations or policies of the College, I am not prepared to accept that there should be implied into the contract a term as broad as proposed, which cannot meet the test of necessity. Given the wide scope of the Regulations, it is convenient to deal with any remaining issues in this regard in the context of the alleged breaches of contract. 4.5 Breach of contract? 4.5.1 Clinic list conduct 332 The clinic list conduct is defined in paras 8 to 23 of the Further Amended Statement of Claim and includes numerous allegations. It will be apparent from the discussion below that I do not accept Dr Sklavos's characterisation of the clinic list conduct. 333 Dr Sklavos claimed that the clinic list conduct breached various terms as set out above by reason of eight matters: (a) The College's failure to accord him procedural fairness; (b) The College officers' premature conclusion that Dr Sklavos had engaged in misconduct; (c) The College's disregard of the consequences for Dr Slavos in making a report to the Medical Board; (d) The College's threats of disciplinary action and decision to take disciplinary action without power; (e) The College's failure to maintain the confidentiality of its report to the Medical Board; (f) The College's failure to correct or clarify perceptions about Dr Sklavos; (g) The College's failure or refusal to acknowledge that he had not engaged in the alleged misconduct. 334 I do not accept that any of the alleged breaches are made out on the facts, even assuming (for this purpose) that the contract contains all of the terms alleged for Dr Sklavos. It is convenient to deal with the issues which arise in this regard by reference to the propositions put for Dr Sklavos in his written submissions. 335 In respect of the claimed failure to accord Dr Sklavos procedural fairness, it is not a breach of any obligation of natural justice for the College to have relied on "the hearsay report by Dr Relic to the College of CM's mother's statement that CM had not previously attended the dermatology outpatient clinic and on the Hospital's records in concluding that CM did not attend on 9 May 2008". CM was a minor. When she attended the clinic with her mother, a registrar gave Dr Relic a letter which Dr Sklavos had written about CM to CM's referring general practitioner. CM's mother, who would be expected by Dr Relic to know the true position, informed him that although prior appointments had been made this was CM's first visit. Whether this is true or not is beside the point. The point is that it was reasonable for Dr Relic to believe CM's mother. Further, the source of the College's alleged obligation not to rely on hearsay is unclear. Even in court hearings, hearsay is potentially admissible evidence. Moreover, all patient complaints are a form of hearsay. 336 The hospital's records later located by Dr Relic supported the position of CM's mother. The final list of patients who attended the clinic on the relevant day did not include CM. The document subsequently found by Dr Sklavos, the appointments list, included CM. However, Dr Sklavos accepted that he knew that this was merely a schedule of appointments. It did not prove who had attended on the day, whereas the document on which Dr Relic placed weight was a business record of actual attendance. Moreover, the letter from Dr Sklavos to CM's general practitioner also supported the conclusion that he had not seen CM on the day in question because it was in pro-forma terms whereas CM had particular skin issues which ought to have been noted and referred to in the letter to her general practitioner. 337 This material provided a strong basis for Dr Relic to reach the view that Dr Sklavos had written and sent a letter to a general practitioner about a patient that he had not in fact seen. All of the dermatologists who were asked about this agreed that this involved a serious breach of professional duty, in effect, irrespective of the reason why it had occurred. 338 The fact that Dr Sklavos was interviewed about the conduct at a meeting with Dr Relic (his supervisor at the hospital for his 2008 rotation) and Dr Artemi (by then the College's NSW Director of Training) on 14 March 2009 without being given advance notice of the subject-matter of the meeting is not a denial of procedural fairness. The meeting was used to give Dr Sklavos the opportunity to understand, consider and respond to the issue. This was consistent with the College's obligation to afford Dr Sklavos natural justice in respect of what was a potential disciplinary issue. 339 The fact that Dr Relic was conducting the interview was not a breach of any requirement of procedural fairness. It is not correct to characterise Dr Relic as Dr Sklavos's "accuser". Dr Relic was responsible for supervising Dr Sklavos during his rotation to the Newcastle Hospital. He had had the conversation with CM and her mother. He had then found the list of patients who attended on the relevant day. He had read the letter written by Dr Sklavos and concluded that it supported the conclusion that CM had not been examined. Dr Sklavos knew that when he was appointed to a trainee position at Newcastle Hospital, he was employed by the relevant area health service, not the College. He knew that he was subject not only to the College's requirements and supervision, but also to the requirements of the hospital and supervision by those responsible for his training. Dr Relic was the person ultimately responsible for Dr Sklavos at the hospital. The notion that it was a breach of contract for the College to arrange for Dr Relic to interview Dr Sklavos both on behalf of the College (of which Dr Relic was a Fellow) and the hospital (by whom Dr Relic was employed) is untenable. Dr Brown's view (as the College's Fellow with overall responsibility for registrar training) that it was appropriate for Dr Relic to conduct the interview, attended by Dr Artemi in his capacity as the College's NSW Director of Training, because Dr Relic was the supervisor and held the relevant information, was sound. 340 The fact that the interview on 14 March 2009 was the only interview of Dr Sklavos is immaterial. Dr Sklavos had further opportunities to submit information and did so. He also could have requested another interview at any time. He did not do so. Dr Sklavos agreed the letter was his, did not believe he would have written a letter to a patient he had not seen (including because he would have no reason to do so), and could not remember one way or another whether he had or had not seen CM. Beyond this, Dr Sklavos could say nothing about the incident, except to raise the possibility that there was a temporary file somewhere that might show that he had seen CM. I do not accept the characterisation of this as a "credible explanation" for the existence of the letter. I do not consider that the College was bound to accept or give any weight to this explanation. It was inconsistent with what Dr Relic was told by CM's mother and the attendance list (as opposed to the appointments list subsequently found by Dr Sklavos). This remains the position. Given that this was Dr Sklavos's position in the interview and remains so today, it is not apparent why a complaint is made that there was no further interview, no request for such having been made by Dr Sklavos. 341 The submission that it is "not clear whether or to what extent the College had regard to two letters subsequently written by Dr Sklavos to Dr Relic for the purpose of reaching the conclusions and determining the consequences set out in its first letter to Dr Sklavos, dated 22 April 2009 or later correspondence" does not advance the case. In terms of substance, the letters simply confirmed Dr Sklavos's position in the interview. They added nothing. 342 A complaint is made that Dr Sklavos was not given the relevant documents but was only shown parts of CM's file during the interview. Given his responses during the interview, and his subsequent letters about the incident, there is no doubt that Dr Sklavos understood what the issue was and had an opportunity to respond to the issue. It was also open to him to request copies of any documents he wished at any time but he did not do so. 343 The submissions for Dr Sklavos examined, in detail, the events which took place before the College decided to disaccredit 12 months of his training. I do not consider it necessary to examine this evidence in the same level of detail. My conclusions are as follows: (1) Contrary to the submissions for Dr Sklavos, the better evidence is that of Dr Relic who confirmed that he doubted that he had received any information about Dr Sklavos's performance being poor before the interview which occurred on 14 March 2009. Dr Artemi's view to the contrary is inconsistent with Dr Relic's evidence. There is no reference to performance in the minutes of the interview. The fact that these issues were not raised is consistent with Dr Relic not yet having such information. (2) In any event, even if Dr Relic had this information, the only issue then of concern to him, as the minutes show, was the issue about the patient CM. This is also consistent with Dr Relic's discussion with Dr Brown, in which Dr Brown asked Dr Relic to interview Dr Sklavos about the CM issue. As noted, Dr Brown's view that Dr Relic should do so because he was Dr Sklavos's supervisor at the hospital makes sense. The fact that Dr Relic was conducting the interview to obtain information for both the College (of which he was a Fellow and which had accredited the hospital to provide the training position) and the hospital does not give rise to any impropriety. Consistent with my general view about the likelihood that Dr Sklavos would perceive hostile and threatening behaviour in his dealings with the College when none was present, I do not accept his evidence about the tone of the meeting. I prefer the evidence of Dr Relic and Dr Artemi to the effect that the meeting was cordial and appropriately conducted to raise a serious issue about Dr Sklavos's conduct. (3) Dr Artemi's email of 22 March 2009 to Dr Brown and Dr Relic refers to Dr Relic having mentioned to Dr Artemi general performance issues about Dr Sklavos. Dr Artemi said he was concerned that there was a general pattern of poor behaviour emerging and asked Dr Relic to prepare a brief report. Given that Dr Artemi was the Director of Training for NSW, this was appropriate. It was important that Dr Artemi know if there were general performance issues in respect of Dr Sklavos so that action could be taken to address those issues. Given that Dr Artemi was doing nothing more than seeking information, it was not improper for him not to have raised these issues with Dr Sklavos at this time. The fact that Dr Artemi informed Dr Brown about these matters did not breach any natural justice obligation to Dr Sklavos such as might exist. Fellows of the College responsible for the training of Dr Sklavos were entitled to obtain information about his performance as they saw fit. (4) Subsequent communications involving Dr Brown, which it is unnecessary to detail, disclose that her focus was the issue about the patient CM. Dr Brown, rightly in my view, saw the issue as a serious one which should be raised with the NSW Medical Board. Her views in this regard had nothing to do with the more general issue, which remained unexplored at this time within the College, of Dr Sklavos's overall performance. By April 2009, Dr Brown had reached the view that Dr Sklavos should be placed on probation and warned that further misconduct would result in dismissal from the training program. The fact that Dr Brown had not seen Dr Sklavos's amendments to the minutes of the interview at this time is immaterial. Dr Sklavos's amendments do not change the fundamental matters. (5) The letter sent by the College to Dr Sklavos of 22 April 2009 states the College's view that Dr Sklavos had sent a letter to a general practitioner about a patient he had not seen. Given the information available to the College and that Dr Sklavos had provided no further information and effectively had indicated he was not able to do so, I see no problem with the College having reached the view it did by this time. Dr Sklavos himself accepted that he probably had not seen CM in his letter to the NSW Medical Board of 11 June 2009. The date of this letter, whether the College had seen it or not, and whether it reflects Dr Sklavos's true belief or not, is immaterial. The fact is that all of the material the College had, including such information as Dr Sklavos could provide, supported the view that he had not seen CM. The letter told Dr Sklavos that he was on probation and that any further serious breaches of professional behaviour would result in dismissal from the program. Again, I do not see any problem with the College having done so. It did so solely by reference to the issue about the patient CM. Contrary to Dr Brown's recollection, the College's governance instruments did provide for probation, even though they did not explain what probation might mean. Until incorporation into the Regulations of 15 May 2009 (as above), probation was specifically outlined in clause 3.1.3 of the College's policy regarding dismissal from training, annexed as Appendix 11 to the 2009 Training Handbook. Even if they did not, there is no reason to conclude that the College was not free to decide on sanctions as it saw fit. (6) Dr Artemi sent Dr Brown the final signed minutes of the interview on 30 April 2009. In his letter, he said that a major concern was comments from a clinical nurse at the hospital regarding unacceptable performance by Dr Sklavos during his rotation in 2008. Dr Artemi recommended that consideration be given to dismissing Dr Sklavos from the training program. In his evidence, and with hindsight, Dr Artemi said that this recommendation was inappropriate. Dr Artemi was relying on information passed on to him by Dr Relic who, consistent with Dr Artemi's request, had made inquiries about Dr Sklavos's overall performance. If the College had acted on Dr Artemi's recommendation, then a real issue about breach of natural justice obligations would arise. However, it is apparent that Dr Artemi's recommendation was not acted upon. (7) Dr Brown contacted the NSW Medical Board in May 2009 and was advised to send in all the information the College had. On 5 May 2009, the College formally referred the matter to the NSW Medical Board. The referral letter from the College raised the issue about CM. It made no reference to issues of overall performance as a trainee. This makes sense, as the College was responsible for Dr Sklavos's training. The issue about CM arose in training, but was an issue of professional medical standards; a reason why the College's referral of the matter to the NSW Medical Board was appropriate. The College's statement that Dr Sklavos had written a letter about a patient he had not seen was consistent with the view the College reached. It was not improper for the College to have made this statement. I do not accept that the College was bound to give Dr Sklavos advance notice of the referral to the NSW Medical Board. (8) Dr Sklavos having been placed on probation (which, as noted, the College's procedures expressly permitted), the College then went through a process of internal deliberations about what probation actually meant, other than the possibility of dismissal from training if any further serious misconduct occurred. The fact that it did so because Dr Sklavos had been placed on probation does not mean it was targeting Dr Sklavos. All it means is that the issue having arisen, the College must have thought it necessary to define for itself what was involved in probationary status. It may be accepted that, in an ideal world, this should have been settled before Dr Sklavos was told he was on probation. However, failure to reach ideal administrative standards is not a breach of any obligation owed by the College. (9) As noted, while this was occurring within the College, Dr Relic had done what Dr Artemi had asked and sought the views of hospital staff who had worked with Dr Sklavos about his performance. Two nurses raised issues of concern with him. As will be apparent from above, Dr Relic communicated these concerns to Dr Artemi in or before April 2009. It is immaterial that Dr Sklavos was not informed about Dr Relic obtaining this information or discussing it with hospital administration. Dr Sklavos was no longer employed at the hospital (having finished his rotation there). In his role at the hospital, and as Dr Sklavos's former supervisor, Dr Relic was entitled to obtain information as requested by the College. The fact that Dr Sklavos was not informed at the time that information was being obtained about his performance is also immaterial. In the context of the College's training program, the College must be entitled to obtain information as it sees fit about all trainees. If the information is to be used to found disciplinary action then natural justice considerations arise, but I do not see how the College was subject to any obligation not to try to obtain information about any trainee's performance or to any obligation not to do without giving the trainee advance notice that it was going to do so. (10) By a letter dated 12 June 2009, the College informed Dr Sklavos as follows: On 22 April 2009, you were advised by the then Honorary Secretary, Dr S. Shumack, that your continued position in the dermatology training program will be regarded as probationary, pending evidence of satisfactory behaviour. The decision was taken as a consequence of an alleged action by you, in writing to a general practitioner who had referred a patient to the outpatients department at the John Hunter Hospital. You indicated in your letter to the referring doctor that you had seen and evaluated the patient when, in fact, you had not (as previously acknowledged by you and supported by the materials provided to the College, which you have previously commented on). In the College's opinion, this represents a serious breach of professional behaviour and, therefore, misconduct. As a consequence: 1. Your position in the College's training program and your accreditation for your existing training periods, are under further review; 2. This issue and your performance on the training program to date, will be subject to further investigation by the College's Board of Censors; 3. Accreditation of the training you have undertaken and your continuation in the training program, will be subject to a positive recommendation from your clinical supervisors and the Board of Training, given observed and assessable conduct, and ultimately the Board of Censors (subject to the requirements of the Training Program Handbook and the College Regulations); 4. Your continuing performance in all areas of the training program will be the subject of close but appropriate monitoring, consistent with the previous notice to you that you are currently participating in the training program on a probationary basis; and 5. The Board of Censors will consider all the above information carefully in addition to the materials already held (as previously outlined to you) and will assess any possible action. You will continue to be given the opportunity to respond to matters arising before any further decision is made by the Board of Censors. The action which the Board of Censors could take against you includes, but is not limited to, the following: • Dismissal from the Training Program; • Loss of accreditation of one or more years of your participation in the training program; • A requirement that you undertake a fifth year of training in the training program; • A requirement that you complete additional assessment tasks, as determined by the Board of Censors, to the Board's satisfaction; and • An uninterrupted continuation of your training with the training program. I would be grateful if you would formally acknowledge your understanding of the matters raised in this letter, responding appropriately in writing. The submissions for Dr Sklavos criticised this letter on numerous grounds. In short, if it is the case that Dr Sklavos had not acknowledged that he had not seen CM, the error is immaterial. It does not found any breach of an obligation of natural justice. The letter discloses to Dr Sklavos that his overall performance was under investigation. It also told him he would be given a further opportunity to respond to matters arising before any further decision was made. There is nothing improper in any of this. Nor was it improper for the College to have decided and informed Dr Sklavos that the sanctions against him might include the matters identified (a result of the College's internal deliberations about the substantive effect of probationary status). (11) Dr Relic wrote two letters to the College on 15 July 2009. In one letter, Dr Relic changed his assessment of Dr Sklavos as previously lodged, due to the issue about CM and what he saw as Dr Sklavos's unsatisfactory response to the issue. Dr Relic was entitled to amend his assessment of Dr Sklavos's performance. All trainees knew they were subject to ongoing assessment throughout the training program and that their supervisors lodged assessments (known as SITAs) with the College. If, as had occurred, new information came to light, it was proper for Dr Relic to change his assessment about Dr Sklavos. The letter also referred to the issues raised about Dr Sklavos's overall poor performance and enclosed a statutory declaration from a nurse in this regard. In his second letter, Dr Relic said he had reviewed 12 randomly-selected long surgical cases upon which Dr Sklavos had worked in 2008 and had found no issue with them. (12) Leaving aside all of the confusion and inconsistencies in the evidence of the Fellows about who thought what and when (which, as I have said, I find unsurprising), the one arguable allegation of a material mistake the College might be thought to have made is this – at a meeting of the Board of Education on 31 July 2009 the Board decided to impose sanctions upon Dr Sklavos. At that time Dr Sklavos had not been informed him about or given him an opportunity to respond to the concerns about his poor performance raised by the nursing staff, as otherwise no new matter had arisen for consideration relating to CM. 344 There is no doubt that those involved in the decision knew about the poor performance issues at the time the decision was made. This is apparent from an email from Dr Tait of 26 July 2009 referring to the performance issues, the evidence of Dr Brown about the meeting, and the minutes of the meeting which refer to the reports from nursing staff. The better course for the College to have taken in these circumstances would have been to inform Dr Sklavos about the performance issues and give him an opportunity to respond before any decision was taken. The difficulty I have is in concluding that, in acting as it did, the College breached a contractual obligation to Dr Sklavos. 345 I have said above that I am prepared to accept that there was a contract between the College and Dr Sklavos in respect of his training, one term of which was that the College would investigate disciplinary matters consistently with the principles of natural justice by ensuring that, in the course of any investigation of a trainee for disciplinary purposes, the trainee would be given the opportunity to understand, consider and respond to the alleged misconduct before any final decision was made about the allegation. The "allegation" against Dr Sklavos was that he had written a letter about the patient CM without having seen her. In the course of investigating that allegation, other information was obtained about Dr Sklavos's overall performance. When it came to the imposition of a sanction on Dr Sklavos, the letter from the College reflecting the decision taken on 31 July 2009, being a letter of 12 August 2009, said this: On 22 April 2009 you were advised that your continued position in the dermatology training was to be considered as probationary. On 12 June 2009 you were sent a letter that expanded and clarified what was meant by probationary. You were invited to comment on the allegations. … Your behaviour as outlined in the letter of 12 June 2009 was regarded as serious [sic] breach of professional behaviour and therefore misconduct. This was discussed at the Board of Education meeting on 31 July 2009; the Board, having given you an opportunity to respond and make submissions in relation to the conduct raised with you. It was decided that as a consequence of this misconduct, a period of twelve months of your training would be disaccredited. The practical consequence of this is that you will not be eligible to sit your Fellowship exam until 2011. You will remain on probationary status and any further breach of professional behaviour or a failure to achieve satisfactory progress in your clinical training, ie. a SITA that results in a PIF as defined in the current Training Program Handbook, will result in instant dismissal from the training program. Your Director of Training and Supervisor of Training will be informed of this decision. Please acknowledge your understanding of the matters raised in this letter by responding appropriately in writing. 346 It will be apparent that the letter states that the sanction was being imposed not for reasons of poor performance but because of the issue with the patient CM. While this might appear to be inconsistent with the evidence referred to above showing that the decision-makers were aware of and concerned about the performance issues, I have concluded that the letter of 12 August 2009 must be taken at face value. The primary reason for this is that the College was well aware that before it could impose any sanction on Dr Sklavos for misconduct it had to give him an opportunity to respond to the relevant misconduct. The College said this to Dr Sklavos in its letter of 12 June 2009 (see above). It repeated in its letter of 12 August 2009 that Dr Sklavos had been given an opportunity to respond to the issue with the patient CM. It must be inferred to have done so because it knew that it was required to give Dr Sklavos an opportunity to respond to any disciplinary issue before imposing any sanction in respect of the issue. It is difficult to accept that, having made the statements it did in the letters of 12 June 2009 and 12 August 2009, the College in truth was imposing a sanction on Dr Sklavos for poor performance without giving him an opportunity to respond, contrary to an obligation of which it was clearly cognisant. 347 These matters indicate that care is taken in respect of the submission put for Dr Sklavos that: When sending the letters to Dr Sklavos on 22 April 2009, 12 June 2009 and 12 August 2009, as well as when making its complaint to the Medical Board on 5 May 2009, the College had regard to allegations about asserted poor performance and behaviour on the part of Dr Sklavos that went beyond the 9 May 2008 letter, without informing him of, or giving him a chance to respond to, that asserted poor performance or behaviour. 348 There is ambiguity involved in the concept of the College "having regard to" the poor performance issues. As I have said, the College knew about those matters. However, the sanction was not imposed to deal with those matters. Nor was it imposed because of those matters. As the letter of 12 August 2009 disclosed, the alleged misconduct was the incident concerning the patient CM. That was the cause of the imposition of the sanction. While I accept that it would have been better administration for the College to have informed Dr Sklavos about the concerns in respect of his overall performance and given him an opportunity to respond to those concerns before the decision was taken on 31 July 2009, I am not satisfied that what occurred involved the College in breaching the obligation to investigate disciplinary matters consistently with the principles of natural justice by ensuring that in the course of any investigation of a trainee for disciplinary purposes, the trainee would be given the opportunity to understand, consider and respond to the alleged misconduct before any final decision was made about the allegation. 349 Other specific submissions were made which are dealt with below. 350 In respect of the allegedly premature conclusion that Dr Sklavos had engaged in misconduct, I accept that the evidence about the state of mind of the College office holders was unclear and inconsistent. I do not find this surprising given that they were attempting, largely unsuccessfully I suspect, to reconstruct what their states of mind were in 2009 and thereafter. Moreover, they were attempting to do so when it is apparent that their states of mind may have changed over time. I consider it unlikely that any person would have been able to give an accurate representation about their reasoning process from so many years ago in circumstances where subsequent events (such as Dr Sklavos failing the examinations and suing the College) are likely to have impacted on recollections. I do not consider that any of the witnesses called by the College did other than try to give truthful evidence in circumstances some of them found trying and confusing. What I do not accept is the suggestion of a premature conclusion having been reached. 351 As noted, there was significant confusion in the minds of various College office bearers about the interaction between its investigation for its own purposes and that of the NSW Medical Board. There was also confusion about when various office holders concluded that Dr Sklavos had engaged in misconduct and what "concluded" means. I am not persuaded any of that evidence was particularly helpful to resolution of the case. For one thing, it is not difficult to accept that a person might hold a "concluded" view that Dr Sklavos had engaged in misconduct but that if other material came to light the view might alter. Whatever the confusion, this was ultimately the position of Dr Brown and it makes sense. The mere fact that a person's view is subject to change if circumstances change does not mean the view reached was premature or otherwise inappropriate. Further, the College had ample material available to it to support the conclusion that Dr Sklavos had written a letter to CM's general practitioner when he had not in fact seen CM. The College was entitled to rely on the statements by CM's mother to Dr Relic. It was entitled to rely on the attendance list which disclosed that CM had not attended the clinic. It was entitled to rely on the fact that the letter Dr Sklavos had written, in Dr Relic's view, supported the conclusion Dr Sklavos had not seen the patient. Dr Relic had explained to Dr Sklavos during the interview why he had reached this view and given Dr Sklavos an opportunity to respond. The College was entitled to rely on the fact that Dr Sklavos agreed the letter was his and could give no cogent explanation for the existence of the letter other than that, as he would not have written a "bogus" letter (as he put it), he must have seen CM. The interview was not the end of the matter. Dr Sklavos had the opportunity to consider the issue and provide further information, which he did but, as he said in those further communications, he had little to add because he could not recall specific details and could not confirm if he had seen CM or not (another unsurprising fact). Given that no further substantive information had come forward, the College was entitled to reach a conclusion on the information it had available and to decide to impose a sanction Dr Sklavos on that basis. 352 By its Regulations and policies, the College had not bound itself to resolve complaints as if it were a court. The material it had available provided a reasonable, indeed a strong, basis for it to conclude that Dr Sklavos had written a letter about a patient he had not seen. 353 The submission that Dr Sklavos had no reason to do so and thus it was unlikely he did so (a point which Dr Sklavos made in the interview and thereafter) misses a point that Dr Relic raised at the interview – that it is not impossible to imagine that a busy doctor who was not up to date with his record keeping might have written such a letter either wrongly believing he had seen the patient because she had been booked in for an appointment or not having checked carefully enough that he had seen the patient. The minutes of the meeting record this: Dr JR suggests that perhaps Dr AS could not recall the patient on the day and being unaware that Ms CM failed to attend felt responsible for generating a consultation letter. This would explain Dr AS letter's inadequacies and similarities to the referring GP's letter. Dr AS again pauses repeatedly before stating he would not do this. He claims repeatedly "I can't explain" The above discussion went back and forth for a few minutes with Dr AS repeating comments such as "I would never make up the letter. I must have seen them. I would not make up the letter. I can't explain the lack of notes. I agree my letter was inadequate" PA seeks clarification from AS. "Your earlier comment was that you were happy with your consultation letter. Now you say the letter is inadequate. Which one is it"? Dr AS replies his letter could have been more thorough… 354 The relevant point is that, even on the most innocent explanation, the College was entitled to reach the view that there was misconduct for which some sanction was required, irrespective of the outcome of the referral to the NSW Medical Board. As noted, I do not accept that, given the material it had available, the College was bound to try to find a temporary file which might prove that Dr Sklavos had seen CM. Nor do I consider that the College had to follow up CM's mother to confirm what she had said to Dr Relic. There was no reason for the College to doubt what Dr Relic had been told by a person who would be in the best position to know, given that what she said was consistent with the attendance list. Even the existence of the appointments list which Dr Sklavos's wife later found (which showed that CM was scheduled to attend the clinic on the day in question) does not point to the contrary. As Dr Sklavos said he knew, this was a list of scheduled appointments. Only the attendance list showed actual attendance at the clinic. 355 Given the available material, the College was not bound to accept Dr Sklavos's claim that he would not have written a letter about a patient he did not see. There was evidence he had done so and even if his failing was mere inadvertence, it was inadvertence of a serious kind which warranted the College taking the view that the misconduct called for a sanction. While I accept that the evidence of Dr Brown about her states of mind in respect of the conduct was unclear, I do not accept that it was impossible for her to be of the view that there had been a serious breach of professional requirements even if the conduct was not deliberate. While, under the pressure of giving evidence, Dr Brown was frequently unable to give clear evidence about what was in her mind back in 2009 (which, as I have said, I do not find surprising and do not accept suggests any lack of willingness to give the best evidence she could), it is possible to characterise the inadvertent writing of a letter to a general practitioner about a patient who had not been seen as serious misconduct. The fact that Dr Sklavos might have believed he had seen the patient when he wrote the letter (which, as discussed, he never suggested he did not write) is itself indicative of a serious problem in his work arrangements. 356 Care also needs to be taken with the submission that "Dr Brown also did not refute the suggestion that she had not considered the possibility that Dr Sklavos' conduct was inadvertent". As noted, Dr Brown's evidence was unclear about her states of mind. Further, the writing of the letter itself could not have been other than a deliberate act, in the sense that Dr Sklavos must have intended to write the letter. The concept of "inadvertence" could apply only to the question whether, when writing the letter, Dr Sklavos believed, did not know or did not believe or simply did not think about, whether he had seen the patient. While writing a letter knowing a patient had not been seen would have been dishonest and doing so not knowing one way or another would have been reckless, both amounting to serious misconduct, doing so wrongly believing that the patient had been seen, as I have said, indicates a kind of inadvertence itself capable of constituting misconduct that might be described as serious. The same types of difficulties attend the notion of Dr Sklavos having "fabricated" a letter. Whether or not a letter is "fabricated" might or might not depend on the state of mind of the author depending on the meaning given to "fabricated". 357 The submissions for Dr Sklavos made much of the fact that it was not an issue in this case whether Dr Sklavos had or had not seen CM. This is correct. What is relevant, however, is whether the actions of the College were reasonable at the time. As I have said, given the material it had available, it is difficult to see how the College could have rationally reached any view other than that, for a reason unknown, Dr Sklavos had written a letter about a patient he had not seen and that, whatever the reason, this was serious misconduct. 358 It was said that the College wrongly claimed that Dr Sklavos had acknowledged the possibility of his not seeing the patient when he had not done so until his letter to the NSW Medical Board of 11 June 2009. I do not see this as material but, in any event, Dr Brown's view that the College had credible evidence that Dr Sklavos had written and sent a letter about a patient he had not seen was sound. As such, it was not inappropriate nor a breach of any alleged contractual duty for the College to communicate internally and with others externally on the basis that its positon was that this is what had occurred. 359 In respect of the College's alleged disregard of the consequences for Dr Sklavos in making a report to the Medical Board, a number of points can be made. 360 First, the potential consequences for Dr Sklavos of the College's referral of him to the NSW Medical Board were obvious. It is impossible to accept that Fellows of the College were oblivious to the fact that the NSW Medical Board might decide to take action against Dr Sklavos. The fact that the potential consequences are not referred to in internal communications of the College does not prove lack of awareness. 361 Second, it would have been wrong for the College to do other than it did. The College was in possession of information that had led it to the view (reasonably, in my opinion) that one of its trainees had written and sent a letter to a general practitioner about a patient when he had not seen the patient. As the evidence disclosed, this was not so much an issue relating to dermatological training; it was an issue relating to professional medical standards. Dr Sklavos was already a registered general practitioner. The College was not dealing with undergraduates. The College's role was about specialist dermatological training. When confronted with an apparently serious issue about the compliance of a trainee with basic medical standards, it might reasonably be concluded that the College would have been derelict in its duty if it had not reported the issue to the NSW Medical Board. If the College had not done so because of concern about the potential impact on Dr Sklavos, that would raise a serious issue about the College's own ethical standards. The College rightly took the view that it was appropriate to refer the issue to the NSW Medical Board so it could decide what, if any, action should be taken, given Dr Sklavos was a registered general practitioner. 362 In respect of the allegation that the College's threats of disciplinary action and decision to take disciplinary action were without power, a further two points can be made. First, and again, the evidence of the College office bearers was unclear and in some respects inaccurate. Second, and as to the inaccuracy, the Regulations expressly provided for the possibility of a trainee being placed on a "probationary period" for misconduct (Regulation G.12). As such, the confusing evidence about the attempts made to define probation is immaterial. The Regulations (which Dr Sklavos contends had contractual force) provided for placement on a "probationary period" for misconduct or unsatisfactory performance. There was a source of power for the College to do so. Even if this had not been made express in the Regulations, there is nothing to suggest that the College had somehow bound itself not to frame a sanction for misconduct. The College's attempts to define when a trainee might be placed on probation were apparently prompted by the circumstances involving Dr Sklavos. But this does not indicate a conspiracy against him or that its attempts were tainted by malice. It is reasonable to attempt to clarify matters when an issue arises and this is what the College tried to do, albeit perhaps overlooking that its own Regulations already expressly provided for the sanction of probation. 363 As a result, the notion that the College was not empowered to do what it did on 12 August 2009 (inform Dr Sklavos that 12 months of his participation on the training program would be disaccredited and place him on probation under threat of dismissal for any further breach of professional behaviour or unsatisfactory performance) is misconceived. It is true that there is no reference to dis-accreditation of training periods as a potential sanction in any document. As I have said, however, it is not apparent why a restriction on the College's powers of sanction would be read into the contract. The documents on which Dr Sklavos relies make clear that the College had power to investigate and sanction for disciplinary issues. The documents did not purport to give an exhaustive list of all possible sanctions. Dis-accreditation of training periods is a logical possible sanction. Moreover, one thing the documents did do was give a right of appeal to the Appeals Committee. While the Board of Directors was aware of the issue (it having been raised at meetings on 15 May 2009 and 12 August 2009), the letter states that the decision was taken by the Board of Education. Dr Sklavos did not exercise any appeal right at the time although this was provided for in the documents he contends have contractual force (noting that his solicitors did so subsequently on 12 November 2009 but by then the sanctions had been reversed by the Board of Directors in any event). 364 Thus, the criticisms of the College for attempting to give itself additional powers, it follows, are also misconceived. As noted, even if the documents all do have contractual force, nothing in them limited the kind of sanctions the College could determine to impose for misconduct. While Dr Sklavos perceives that the College's actions to introduce new provisions into its Regulations and policies were tainted by the conspiracy against him, there is nothing untoward in a body such as the College being confronted by a set of circumstances, deciding that its documents were unclear, and trying to clarify those documents. 365 In respect of Dr Sklavos's allegation regarding the College's failure to maintain the confidentiality of its report to the NSW Medical Board and the allegations against Dr Sklavos, little needs to be said. The facts are these. There is no evidence the College "publicised" the referral. It was necessary and unavoidable that a number of the Fellows and employees of the College be informed of the referral. It was unavoidable that Dr Sklavos be identified as a third year and not a fourth year trainee within the College given the dis-accreditation of 12 months of his training. Dr Sklavos's feelings of humiliation at this do not create a breach of contract. They do not support his belief that this was done to embarrass him. There is no proof that the College was responsible for any leak to the Royal North Shore Hospital. It is obvious that the field of dermatology is small and it is unsurprising that in such a small closely-knit field, the word would spread. There is no evidence that the College was responsible for this, embarrassing as it no doubt was for Dr Sklavos. 366 In respect of the allegation of the College's failure to correct or clarify perceptions about Dr Sklavos, nothing has been said to explain why the College was bound to take steps to ensure that people knew that it decided to reverse the sanction against Dr Sklavos in October 2009 (as a result of which he became a fourth year trainee in 2010) and that the NSW Medical Board had decided not to take any action in respect of the College's referral to it. 367 In respect of the allegation of the College's failure or refusal to acknowledge that he had not engaged in the alleged misconduct, the only response necessary is that the fact the College decided to reverse the sanctions does not mean that the misconduct did not occur or, indeed, that the College accepted this. As I have said, and as Dr Sklavos knew, the appointments list showed intended appointments on which CM's name appeared. This meant only that she had been scheduled for an appointment. The attendance list did not show CM's name. The attendance list showed who had in fact attended the clinic. The appointments list found by Dr Sklavos and sent to the College did not vindicate or absolve him. The matter was referred to the Board of Directors which reversed the sanctions, but it cannot be inferred that it did so because it believed that the misconduct had not occurred. In fact, in the letter of 16 October 2009, it is apparent that the Board of Directors did not think that the misconduct had not occurred. The letter described the matter as "unresolved" but made clear that in any event the sanction of dis-accreditation of 12 months' training was reversed. 368 Given this, there was no basis for the College to acknowledge that Dr Sklavos had not engaged in misconduct. Whether he did so or not remains unresolved, as the College said. Nor do the submissions for Dr Sklavos explain why, even if it did believe that there had been no misconduct, the College was under a duty of acknowledgment. 369 Otherwise, as to specific allegations, the following comments are made: (1) "The College has never provided any explanation as to why the allegation was made": the allegations were made for the obvious reason that CM's mother informed Dr Relic that she had never visited the clinic when there was a letter on file from Dr Sklavos to CM's referring general practitioner stating she had attended the clinic and this was confirmed by the attendance list and the content of the letter. It would have been a grave dereliction of the College's ethical duties, including its duties to Dr Sklavos, not to have raised this issue with him. (2) "The College has never acknowledged that its conclusion that [Dr Sklavos] had committed a serious breach of professional behaviour and had misconducted himself was or may have been unfounded or incorrect, or withdrawn that conclusion": the College had reasonable grounds to conclude that Dr Sklavos had engaged in misconduct and, indeed, those reasonable grounds remain irrespective of the reversal of the sanction against him. As such, there was no reason for the College to make this acknowledgment or withdraw. Even if it were otherwise, the source of any such duty remains unexplained. (3) "The College has never apologised to Dr Sklavos in relation to any matters falling within the Clinic List Conduct": given the above there was no reason justifying Dr Sklavos's call on the College to apologise. Again, even if the College were wrong, the source of any duty to apologise remains unexplained. 370 It follows, accordingly, that I do not accept that the College was in breach of contract because it did not "actively support" Dr Sklavos. The characterisation of the College's conduct as actively undermining Dr Sklavos is a misconceived view based on the unfounded conspiracy beliefs held by Dr Sklavos. Confronted with the material it had, it was proper of the College to do what it did and it was under no obligation to do otherwise. There was no breach of the alleged support and communicate term. 371 There was no breach of the alleged bullying and harassment free term, the harassment and discrimination free term, or the prevent bullying term. There was no "sustained attack" on Dr Sklavos, other than in his own mind. The issue about CM was properly raised and, other than in the one respect which I consider unfortunate but not a contractual breach, dealt with reasonably and appropriately by the College. There was no bullying or harassment of Dr Sklavos. The College was not responsible for the conduct of Royal North Shore Hospital or its employees during the interview with Dr Sklavos. Nor can Dr Sklavos's perceptions of hostility against him be accepted for reasons already explained. 372 There was no breach of the alleged diligence, honesty, and respect term, the fairness term or the fair dealing in relation to disciplinary matters term. Nor was there any breach of the alleged duty to act reasonably, the duty of good faith or the compliance with regulations term. 373 If any of these conclusions are incorrect, further questions would arise about the consequences of any breach by the College of any of the alleged contractual obligations. The sanction imposed by the Board of Education was communicated to Dr Sklavos on 12 August 2009. Dr Sklavos's wife found the appointments list on which CM's name appeared and this was sent to the College by Dr Sklavos's solicitor on 21 September 2009. The letter sought re-consideration of the sanction based on, amongst other things, the appointments list. While the letter suggests that the appointments list had been altered to delete CM's name, it is clear from the evidence that there are two documents – one the appointments list and one the attendance list. The former documents those scheduled to attend and the latter those who in fact attended. Given this, the request for the College to investigate the possible deletion of CM's name was misconceived. It thus does not matter that the College did not undertake such an investigation. In any event, the relevant point for present purposes is that the Board of Directors decided to reverse the sanction and Dr Sklavos was informed about this on 16 October 2009. The 12 months training was re-accredited and the probationary status lifted. Accordingly, Dr Sklavos was subject to the sanction for a period of about nine weeks. He thereafter continued his training as a fourth and final year trainee in 2010. Dr Sklavos was thus in the position he would always have been in by 16 October 2009. 374 The suggested consequences of the alleged breach of contract are stress and anxiety and the development of a specific phobia about the College's examinations. 375 Disciplinary investigations are inherently stressful and highly likely to induce anxiety in the person being investigated. It cannot be accepted that the College was contractually bound not to cause Dr Sklavos stress and anxiety in any disciplinary investigation. In entering the College's training, Dr Sklavos must be taken to have known that he would be subject to the College's disciplinary procedures. No reasonable person would consider that the College was bound not to cause a trainee anxiety and stress when carrying out a disciplinary investigation. Such anxiety and stress was a result of the investigation, not any possible breach by the College of natural justice (or other) requirements. Dr Sklavos was not officially informed until this proceeding about the concerns with his overall performance in 2008. The anxiety and stress which Dr Sklavos suffered throughout 2009 was thus not a result of any alleged contractual breach by the College. It was a result of the very fact of being subjected to a disciplinary investigation. Nor could it be considered that the College was contractually bound not to cause stress and anxiety by the imposition of any sanction for misconduct on a trainee. 376 As discussed in more detail in the context of the negligence claim below, it is also difficult to accept that Dr Sklavos developed a specific phobia about the College's examinations towards the end of 2011 (after he failed the written and clinical examinations in 2010 and the written examinations in 2011) because of the events in 2009 alleged to constitute contractual breaches by the College. In this regard, it is important to recall that the central contention regarding the clinic list conduct does not relate to the fact that Dr Sklavos was subjected to a disciplinary investigation. Nor is that contention concerned with the fact that the College imposed, then rescinded, a disciplinary measure on Dr Sklavos. The contention relating to the clinic list conduct concerns certain aspects of the way in which the College conducted the investigation and decided to impose the sanction. There is no basis to infer that the disciplinary investigation would not have occurred, or that the sanction would not have been imposed, if any of the alleged breaches, let alone those concerning an alleged denial of natural justice, had not taken place. 377 Given this, the evidence relating to causation on which reliance is placed does not provide a foundation for any inference that the clinic list conduct (as opposed to the mere fact of Dr Sklavos having been subjected to a disciplinary investigation) was a material cause or contributor to Dr Sklavos having developed a specific phobia if, by material cause, the "but for" test is to be applied (a question left at large in the submissions of the parties, amongst many others in respect of causation, as explained below in the context of the negligence claim). For present purposes it is sufficient to note that leaving aside the fact that the specific phobia developed in late 2011 after Dr Sklavos had failed the 2010 written and clinical examinations and after he had also failed the 2011 written examinations (in my view, given his personality traits a sufficient cause of his specific phobia about the examinations), nothing in the evidence links the specific phobia to the alleged contractual breaches as opposed to the very fact of having been subjected to a disciplinary investigation. The evidence from Professors Glozier and Samuels, on which Dr Sklavos relies in this regard, supports this conclusion against his case. 378 Professor Glozier considered that the cause of Dr Sklavos's phobia was "his perception of repeated poor experiences, including examination discrepancies, at the hands of the College and numerous consultants and associated people whom he views as somewhat representing the College". Dr Sklavos's perceptions of his treatment by the College meant that he was vulnerable to developing an anxiety disorder of which a specific phobia is one kind. Professor Samuels agreed that Dr Sklavos's perceptions of his supervisors and the attitudes within the College as having caused him to become "sensitised" to the College. Dr Sklavos himself perceived the disciplinary investigation as an event which caused his anxiety about the College to be transformed into a firm belief that there was a conspiracy against him. Contrary to the submissions for Dr Sklavos, his own evidence does not state that the "clinic list conduct", as defined, constituted such a turning point in the development of Dr Sklavos's illness. The relevant evidence was this: The conduct of the College and its officers that I have described at paragraphs 202 to 248 above was a turning point in terms of my belief regarding the way I was being treated by the College. Prior to that conduct, it had occurred to me as a possibility that I might be the subject of a campaign by the College to treat me adversely, but was not certain whether that was the case, and in any event did not consider that the campaign was necessarily aimed at preventing me from obtaining Fellowship. However, by the time that the conduct that I have described at paragraphs 202 to 248 above had run its protracted course, and I had received and considered the letter from Dr Reid dated 16 October 2009, I had become convinced, and still believe that I really was the subject of a campaign to prevent me from obtaining Fellowship and thus practising as a specialist dermatologist. 379 The identified conduct is the whole course of the disciplinary investigation (more specifically, Dr Sklavos's perceptions of those events), not any of the alleged contractual breaches. Moreover, Dr Sklavos was already "sensitised" to the College before he became a trainee because of the difficulty he had in gaining admission to the program. For example, it will be recalled that he felt under "constant threat" throughout 2008 in his position at the Royal Newcastle Centre which the College had accredited but no more. In these circumstances the idea that the matters said to constitute the contractual breaches were a material cause or contributor to the development of Dr Sklavos's specific phobia, at least in a "but for" sense, is untenable. The College was not responsible for Dr Sklavos's personality characteristics that made him peculiarly vulnerable to perceiving events in a manner likely to cause him stress and anxiety beyond which a person of normal fortitude might have suffered (albeit that, as discussed below in the context of negligence, I accept that a disciplinary investigation is inherently stressful and that it is reasonably foreseeable that a person of normal fortitude might suffer psychiatric harm as a result). Nor was the College responsible for how Dr Sklavos perceived every step in the disciplinary investigation as hostile to him and ultimately part of a conspiracy to prevent him from becoming a dermatologist. 380 This conclusion applies also to the one aspect of the College's conduct that I have said does give rise to disquiet, being the fact that it was aware of issues about Dr Sklavos's overall performance when it decided to impose the sanction on Dr Sklavos, yet Dr Sklavos had not been informed about or given an opportunity to respond to these issues. If this constitutes a breach of contract (contrary to my conclusion) then I cannot accept that had the College informed Dr Sklavos about and given him an opportunity to respond to these issues before deciding what to do about the incident involving the patient CM, Dr Sklavos would have been any less likely to develop his specific phobia. To the contrary, if anything, knowing about yet further issues with his performance as a trainee with which he would have to deal would have been likely to increase Dr Sklavos's stress, anxiety and conviction of a conspiracy against him. So much appears from his reaction to the performance improvement form he was given in 2010. As such, the alleged contractual breach, accordingly, cannot be said to be a material cause of or contributor to the development of the specific phobia. 4.5.2 The requirement to re-sit the written examinations 381 The answer to this issue has already been given. While I accept that the College was bound to allow Dr Sklavos to sit for the clinical (viva voce) examinations in 2011 and 2012 if he had passed the written examination in 2010 as a result of the Regulations, I do not accept that Dr Sklavos passed the written examination in 2010. As such, the College's requirement that he re-sit the written examinations in 2011 (and 2012) was consistent with the terms of the traineeship contract. 382 To the extent it is necessary to say more than has already been said, I make the following responses to the submissions put for Dr Sklavos: (1) It is not relevant to consider the treatment of any other trainee. Dr Sklavos did not pass the 2010 written examination. The invitation to him to sit the 2010 clinical examinations was a mistake, but (as noted) it was one the College would accept if he passed the clinical examinations. This does not mean that, when he failed the 2010 clinical examinations, the College exercised a discretion when it required Dr Sklavos to re-sit the written examinations. The College acted in accordance with its requirements as they applied to the circumstances at the time. (2) The change that Dr Sklavos was informed about on 18 December 2009, contrary to Dr Sklavos's perception, was not directed against him. On 18 December 2009 trainees, including Dr Sklavos, received a memorandum from the College advising them that: 5 Outcome of summated Fellowship Written and VIVA Examination: The final change relates to outcome of the fellowship exams. From 2010, there are four possible outcomes for a candidate who has attempted a part or all of the fellowship exam. (i) the candidate who has completed the written fellowship exam and has subsequently obtained a pass in the VIVA will constitute a pass in the Fellowship Examination. (ii) the candidate who has attempted the written fellowship exam and has progressed to the VIVA may be assessed as having failed the clinical viva exam, but due to their performance in the written papers, will be entitled to present to the viva exam only in the FOLLOWING year. (iii) the candidate who has attempted the written fellowship exams and has progressed to the VIVA who is then assessed as having failed the fellowship VIVA may be advised that they are required to sit both the written and viva exams in the following or subsequent years. (iv) the candidate who is assessed as having clearly failed the fellowship written paper will be advised of this and will not be admitted to the VIVA. They will be eligible to re-present for the fellowship written paper in subsequent year. The change has introduced the third alternative which may require a candidate admitted to the viva exam and who fails, to undertake both the written and viva exam in a subsequent year. The reason for introducing this change is to allow a borderline candidate the opportunity of presenting to the viva exam for further assessment and the possibility that they may be judged to have satisfactorily passed the examination assessment. Candidates will be advised in writing if they have been admitted to the VIVA exam, but will not be provided with information regarding their performance in the written paper until after the VIVA exam. These changes have been implemented by the Board of Censors after extensive consultation with relevant parties including the Trainee Representative group. They have been implemented in the interest of allowing trainees the best possible opportunity to successfully complete the assessment process. This change and the reasons for it has been discussed above. (3) If it is relevant to consider the performance of Dr L, who also failed the 2010 clinical examinations, the fact is that Dr L passed the 2010 written examination overall whereas Dr Sklavos did not. The exercise of breaking marks down into component parts to show that Dr Sklavos did better than Dr L on the DM I examination when this is considered the most reliable indicator of competence for the written examinations is misconceived. Dr L passed overall. Dr Sklavos did not. It was thus consistent with the Regulations for Dr L to proceed to the clinical examinations in 2011 without having to sit the written examination. It would have been inconsistent with the Regulations (which Dr Sklavos says have contractual force) for Dr Sklavos not to have been required to re-sit the written examination in 2011 (and 2012). (4) That Dr Sklavos was the only trainee who had to re-sit the written examination when he failed the clinical examination is not the result of any conspiracy against him. Nor was it unfair. Dr Sklavos only got to sit the clinical examinations by reason of an error. He was the only person who failed the written examination who was mistakenly invited to sit the clinical examination. As I have said, this was an error in Dr Sklavos's favour. Had he passed the clinical examination in 2010 the College would have treated him as having passed its examination requirements. Having had one error in his favour, Dr Sklavos's case is tantamount to saying the error should be repeated by allowing him to avoid passing the written examination despite his failure in the clinical examination. (5) Insofar at least as Dr Sklavos's position is concerned there was no lack of clear guidance by the College. (6) Dr Sklavos's entire case in this regard seems to be built on the false premise that because he was mistakenly invited to sit the clinical examinations in 2010 he necessarily passed or was successful in the 2010 written examination. As explained, this is incorrect. 383 For these reasons the College's requirement that Dr Sklavos re-sit the written examination in 2011 and 2012 was not in breach of any of the alleged contractual obligations of the College. Moreover, given his failure in the 2010 clinical examinations and that he always would have been required to re-sit those examinations in 2011 the same problems with causation arise as discussed above. 4.5.3 The assessment of Dr Sklavos's performance in the 2010 written examination 384 I have already rejected above the case that the College's assessment of 2010 written examination was not accurate, valid, reliable, consistent, fair, transparent, objective, or reasonable and that the College's requirement that Dr Sklavos re-sit the written examination in 2011 and 2012 was not valid, reliable, consistent, fair, transparent, objective, or reasonable. I make the following points (albeit briefly as much of it has been said before) in response to the specific submissions put: (1) The alleged failure to produce all relevant documents (e.g. marking sheets and Board of Censors' meeting minutes) is overstated and, in any event, does not support any inference that the assessment of the 2010 written examination was not accurate, valid, reliable, consistent, fair, transparent, objective, or reasonable. (2) The submissions based on individual components of the written examination are misconceived. (3) The transcription and calculation errors shown to have been made have not been shown to have been material in any way to the fact that Dr Sklavos failed the 2010 written examination. (4) The requirement for Dr Sklavos to re-sit the written examination was not the result of a discretionary decision but accorded with the Regulations in force at the time. (5) Nothing about the assessment process supports Dr Sklavos's case in this regard. It has not been proved that if anything different had occurred as contended for by Dr Sklavos the result would have been different and that, in consequence, he would not have been required to re-sit the written examination in 2011 and 2012. (6) Given the need to re-sit the clinical examinations, the same causation problems as outlined in the previous sections again arise. 4.5.4 The alleged failure to make reasonable adjustments 385 This aspect of the case, although brought in contract, cannot rise any higher than the discrimination claims which have been rejected above (assuming, for this purpose, that there were contractual obligations as alleged). Even if any of the alleged contractual terms relevant to this aspect of the case actually existed, the College's response to Dr Sklavos's requests for adjustments did not breach any requirement in that: (1) The College did not discriminate against Dr Sklavos (see above). (2) The College did not show a lack of respect for Dr Sklavos as a trainee by refusing to elect him as a Fellow based on his training and experience. To do so would have been inconsistent with all of the College's practices and procedures and contrary to its obligations to the public. (3) The College was diligent in dealing with Dr Sklavos's requests for reasonable adjustments. The fact that it did not accept the existence of his disability does not mean it lacked diligence. (4) The College did not treat Dr Sklavos unfairly. (5) The College did not prevent Dr Sklavos from having a proper opportunity to obtain what was to be the primary benefit to him of the traineeship contract, namely, eligibility for Fellowship at the conclusion of the period of training. That benefit was available to those who satisfied all training requirements which, at all times, Dr Sklavos knew included the examinations. Dr Sklavos did not satisfy the requirements to be elected a Fellow. He was not entitled to the benefit. 4.5.5 The alleged failure to assist Dr Sklavos 386 These claims are founded on the fact that the College has not arranged a training position for Dr Sklavos since December 2012 or otherwise assisted him to obtain a further dermatology position and thus maintain his skills. The source of any such obligation remains unexplained. Dr Sklavos has completed the training the College offers. Nothing in the documents suggests any ongoing obligation on the part of the College to allocate a training position to a person who has completed the training yet not passed the examinations. The alleged terms do not themselves give support to the existence of any such obligation. The so-called requirement to "actively support" Dr Sklavos cannot be construed as imposing an obligation on the College in perpetuity when Dr Sklavos commenced training in 2007 for a program that was then five years (subsequently reduced to four years). 4.6 Conclusions 387 For the reasons set out above Dr Sklavos has not established any breach of contract nor that any of his allegations would have put him in any position different from that which he was and is in. As such, the claim for damages cannot be sustained. To the extent it is necessary or appropriate to say anything about damages, I deal with that issue separately below. 5. NEGLIGENCE 5.1 The claim 388 Dr Sklavos contends that, by reason of his status as a trainee of the College, the College owed him a duty to exercise reasonable care and skill to avoid recognised psychiatric injury when considering, formulating, invoking, making, or publicising allegations of breaches of professional behaviour, when reporting such alleged behaviour to external regulatory bodies or hospitals, or when imposing sanctions in respect of such alleged behaviour (the alleged duty of care). He contends that, in breach of this alleged duty of care, the College engaged in the clinic list conduct. As noted, the clinic list conduct is defined in paras 8 to 23 of the Further Amended Statement of Claim. The particulars of the alleged breaches of the duty of care are numerous. They are set out in sub paras (a) to (l) of para 49 of the Further Amended Statement of Claim. Dr Sklavos contends that by reason of the breaches of the duty of care he has suffered and will continue to suffer loss and damage. 5.2 Statutory provisions and principles 389 It was common ground that relevant provisions of the Civil Liability Act 2002 (NSW) (the Civil Liability Act) apply. 390 Section 5 of the Civil Liability Act sets out the following definitions: "harm" means harm of any kind, including the following: (a) personal injury or death, (b) damage to property, (c) economic loss. "negligence" means failure to exercise reasonable care and skill. "personal injury" includes: (a) pre-natal injury, and (b) impairment of a person's physical or mental condition, and (c) disease. 391 By s 5A, Part 1A of the Civil Liability Act (of which the below sections form part) applies to "any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise". 392 Sections 5B and 5C relate to duties of care. They provide: 5B General Principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other Principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 393 Sections 5D and 5E relate to causation. They provide: 5D General Principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of Proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. 394 Part 3 of the Civil Liability Act concerns mental harm. For the purposes of Pt 3 "negligence" and "personal injury" are defined consistently with the definitions of those terms in s 5. Further definitions in s 27 include: consequential mental harm means mental harm that is a consequence of a personal injury of any other kind. mental harm means impairment of a person's mental condition. pure mental harm means mental harm other than consequential mental harm. 395 By s 28, Pt 3 (other than s 29) applies to any claim for damages for mental harm resulting from negligence, "regardless of whether the claim is brought in tort, in contract, under statute or otherwise". 396 Section 29 provides that: In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock. 397 Section 31 provides that: There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. 398 By s 32: (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. 399 In Wicks v State Rail Authority of New South Wales [2010] HCA 22; (2010) 241 CLR 60 the High Court observed that: [22] Because s 32 defines or controls what otherwise would be a duty of care arising at common law, it falls for consideration before the limitation upon entitlement to damages imposed by s 30(2). Consideration of the operation of s 32 (in particular subss (1) and (2)) must begin from the observation that neither s 32 itself, nor any other provision of the Civil Liability Act (whether in Pt 3 or elsewhere), identifies positively when a duty of care to another person to take care not to cause mental harm to that other should be found to exist. Rather, like ss 30(2), 32(1) is cast negatively. It provides that a duty is not to be found unless a condition is satisfied. The necessary condition for establishment of a duty of care, identified by s 32(1), is that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. [23] The determination of whether the defendant ought to have foreseen mental injury to a person of normal fortitude must be made with regard to "the circumstances of the case". Section 32(2) identifies four kinds of circumstance to which regard should be had: whether the mental harm was caused by sudden shock, whether there was "witness[ing], at the scene," of certain types of event, what was the relationship between plaintiff and victim, and whether there was a relationship between plaintiff and defendant. But s 32 does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances. [24] Section 32, taking the form it does, must be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by this court in Tame v New South Wales [[2002] HCA 35; (2002) 211 CLR 317]. Judgment in Tame was delivered on 5 September 2002; the provisions of Pt 3 of the Civil Liability Act were inserted in December 2002 by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW). … [26] In part, s 32 of the Civil Liability Act reflects the state of the common law identified in Tame. Consistent with what was decided in Tame, s 32 assumes that foreseeability is the central determinant of duty of care. Consistent with Tame, "shocking event", and the existence and nature of any connection between plaintiff and victim and between plaintiff and defendant, are considerations relevant to foreseeability, but none is to be treated as a condition necessary to finding a duty of care. But contrary to what was decided in Tame, s 32 provides that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness. 400 In New South Wales v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583 at [22] reference was made to Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 which is authority for the proposition that it is not necessary for the particular form of psychiatric injury to be foreseeable, it being sufficient that some kind of psychiatric injury is foreseeable. 401 If the relationship between the parties is not one that falls within a recognised duty of care (such as school and pupil, employer and employee, doctor and patient etc) it is necessary to focus on the "salient features" of the relationship to identify if the relationship attracts a duty of care. In New South Wales v Spearpoint [2009] NSWCA 233 at [21]–[23] Allsop ACJ said: [21] It is clear that in ascertaining whether, in any particular circumstances, a duty of care is to be imputed and in identifying its scope and content, where the circumstances are not covered by an accepted category of liability, the task is to analyse closely the facts bearing on the relationship between the plaintiff and the putative tortfeasor. See for example Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 at [22]; (2004) 216 CLR 515. [22] This close examination will involve an assessment of salient features such as foreseeability, degree of harm, vulnerability, reliance, assumption of responsibility and numerous other possible factors. These other factors will include legal policy such as coherence and conformity with other duties or legal obligations. [23] Whilst the ultimate question as to the existence of a duty of care is one of law (Vairy v Wyong Shire Council (2005) 223 CLR 422 ; [2005] HCA 62 at [62]) the task is one which is fact rich and fact intensive. To put it as Windeyer J did in Mount Isa Mines v Pusey (1970) 125 CLR 383; [1970] HCA 60 (at CLR 398 and 399) it is "a value judgment upon ascertained facts. 402 In Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 Allsop P observed that: [102] This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. [103] These salient features include: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law. [104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content. 5.3 Duty of care 403 The parties did not provide any specific assistance with respect to the question whether the alleged duty of care in the present case was novel or not. The College denied the existence of a duty of care but focused its defence on the factual issues of breach and causation rather than the question of law involved in the recognition of a duty of care. As such, I did not have the assistance from the College which might have been expected given the importance of the question whether it is subject to a duty of care to avoid psychiatric harm to trainees in connection with the exercise of its disciplinary functions. 404 While the salient features of the relationship between the College and a trainee might support the existence of a duty of care as alleged, issues of compatibility and coherence with the important public functions which the College performs in the Australian medical training system also arise. These kind of issues were considered in State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 (Paige), a decision which was not addressed by the parties. 405 Leaving aside questions of compatibility and coherence, the relationship was between the College as trainer and the individual as trainee. The College assumed responsibility for the training of trainees. The relationship was intended to extend over a number of years. The relationship was formal and documented in the Training Program Handbook and other documents. The program gave the College power over the trainee's progress through the training program. The context was training in a medical specialty which would allow the trainee, if they satisfied the College's requirements, to become a Fellow of the College, which was the only pathway in Australia to enable a doctor to practice as a dermatologist. It was reasonably foreseeable that a trainee might suffer harm, economic and psychiatric, by subjecting themselves to the training program and, in particular, the College's disciplinary powers. The College controlled many of the circumstances by which a trainee progressed through the training program. A trainee such as Dr Sklavos vulnerable to exercises of power by the College and had some, but only a limited, capacity to protect himself from those exercises of power. The College must be taken to have known of the potential vulnerability of its trainees to its conduct. The number and nature of trainees was known to the College. Potential liability cannot be described as indeterminate. 406 All of these factors would tend to support the existence of a duty of care on the part of the College to avoid reasonably foreseeable risks of harm including psychiatric injury to its trainees in the context of a disciplinary investigation. 407 However, as Paige makes clear, the indicia of proximity, vulnerability and control are not necessarily determinative. Consideration must also be given to the question whether the proposed duty of care would be compatible with the important functions the College performs as the body accredited under statute to train dermatologists. It is true that in Paige, the appellant was employed and that the disciplinary investigation into his activities was itself regulated by a statutory scheme. In this case, Dr Sklavos was not an employee of the College, and the College's procedures were a matter of internal regulation. Nevertheless, as both bodies enjoy statutory authorisation for their pursuit of public functions, similar questions of compatibility arise. 408 In Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [62], the High Court refused to recognise a novel duty on the basis that doing so would have placed the respondents in that case under two "irreconcilable" duties, interfering with the "proper and effective discharge" of the statutory scheme in issue. In a strict sense, the alleged duty of care in this case is not "irreconcilable" with the College's duties under the HI Act, as it remains able to certify the competency of dermatologists admitted as Fellows of the College. However, as acknowledged in Paige (see [121]-[123], [129]-[131]), recognising a duty to prevent psychiatric injury in connection with a disciplinary procedure is likely to produce a significant "chilling effect", discouraging the College's investigation of allegations of misconduct and inhibiting the proper exercise of corrective measures, and potentially rendering the training process less "efficient and effective". As the College's functions under the HI Act have a broader protective purpose, ensuring that only appropriately qualified and medically responsible dermatologists are permitted to treat the general public, the "chilling effect" which the alleged duty of care may produce would divert the College's attention from this overwhelmingly important consideration. This tends to demonstrate an unacceptable degree of inconsistency between the alleged duty of care and the College's functions, a conclusion which undermines any recognition of the alleged duty of care. 409 Given the lack of assistance received from the parties about this issue, I propose to proceed assuming that the College was subject to the alleged duty of care, albeit recognising that there are persuasive arguments to the contrary which, unfortunately, the College did not make, its submissions amounting to little more than a bare denial that any duty of care existed. 410 Section 32 of the Civil Liability Act, as noted, provides that a person does not owe a duty of care to take care not to cause mental harm to another person "unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken". It seems to me that if the relevant conduct is characterised as the investigation of a potential disciplinary matter then the College ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken in the investigation. Disciplinary matters are inherently stressful for those involved. A person of normal fortitude under disciplinary investigation will inevitably feel highly anxious. This context, in my view, creates a real and foreseeable risk of psychiatric harm to a person of normal fortitude if reasonable care is not taken in the process. Section 32 thus does not preclude recognition of the alleged (and for this purpose, assumed) duty of care. 5.4 Alleged breaches of the duty of care 411 A further difficulty I have with Dr Sklavos's case (apart from doubt about the alleged duty of care) is that the evidence does not support any conclusion of a breach of the assumed duty of care. Nor does it support an inference that Dr Sklavos's recognised psychiatric injury (his specific phobia) was caused by the clinic list conduct. 412 Dealing first with causation, the relevant provisions are ss 5D and 5E of the Civil Liability Act – the negligence (if found) must be a necessary condition of the occurrence of the harm and it must be appropriate for the scope of the tortfeasor's liability to extend to the harm so caused. Dr Sklavos bears the onus of proving these matters. I am not satisfied that the onus has been discharged in this case. It is not appropriate to say too much in this regard because the case put for Dr Sklavos did not confront any of the difficulties of causation involved either at the level of fact or principle. 413 It is sufficient to observe that the "necessary condition" test is a statutory version of the traditional "but for" test of causation. In Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 these observations were made: [18] The determination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff's harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm. … [20] Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm. (footnotes removed) 414 In respect of the relationship between the requirement that the negligence be a "necessary condition" of the harm and that the negligence be a "material cause or contributor" to the harm, this was said: [24] The Ipp Report distinguished the concept of "material contribution to harm" applied in Bonnington Castings [[1956] AC 613] from the use of the same expression merely to convey "that a person whose negligent conduct was a necessary condition of harm may be held liable for that harm even though some other person's conduct was also a necessary condition of that harm". Allsop P made the same point in Zanner v Zanner [[2010] NSWCA 343 at [11]]: [T]he notion of cause at common law can incorporate "materially contributed to" in a way which would satisfy the "but for" test. Some factors which are only contributing factors can give a positive "but for" answer. His Honour illustrated the point by reference to two negligent drivers involved in a collision that is the result of the conduct of the first, who drives through the red light, and of the second, who is not paying attention. His Honour went on to observe: However, material contributions that have been taken to be causes in the past (notwithstanding failure to pass the "but for" test) such as in Bonnington Castings Ltd v Wardlaw [1956] AC 613 are taken up by s 5D(2) which, though referring to "an exceptional case", is to be assessed "in accordance with established principle". [25] This observation is consistent with the discussion in the Ipp Report of cases in which an "evidentiary gap" precludes a finding of factual causation on a "but for" analysis and for which it was proposed that special provision should be made. The Ipp Report instanced two categories of such cases. The first category involves the cumulative operation of factors in the occurrence of the total harm in circumstances in which the contribution of each factor to that harm is unascertainable. Bonnington Castings was said to exemplify cases in this category. The second category involves negligent conduct that materially increases the risk of harm in circumstances in which the state of scientific or medical knowledge makes it impossible to prove the cause of the plaintiff's harm. Fairchild v Glenhaven Funeral Services Ltd [[2003] 1 AC 32.] was said to exemplify cases in this category. [26] Section 5D(2) makes special provision for cases in which factual causation cannot be established on a "but for" analysis. The provision permits a finding of causation in exceptional cases, notwithstanding that the defendant's negligence cannot be established as a necessary condition of the occurrence of the harm. Whether negligent conduct resulting in a material increase in risk may be said to admit of proof of causation in accordance with established principles under the common law of Australia has not been considered by this court. Negligent conduct that materially contributes to the plaintiff's harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which s 5D(2) requires that attention be directed. (footnotes removed) 415 The potential issues which these observations create for Dr Sklavos's claim were not explored by the parties. What is clear is that the clinic list conduct occurred in 2009. Dr Sklavos only developed his specific phobia in the latter half of 2011 (at the earliest), after he had failed the 2011 written examination, having previously failed the 2010 written and clinical examinations. His specific phobia was initially about the examinations only. It has subsequently expanded to include any assessment by the College. This evidence weighs against any conclusion that the clinic list conduct as alleged was a necessary condition of the development of Dr Sklavos's specific phobia (as required by s 5D(1)(a)) of the Civil Liability Act). It is not reasonably possible to see the disciplinary investigation as a whole as a necessary condition in this regard. While the investigation reinforced Dr Sklavos's beliefs about a conspiracy against him, he held conspiracy-style beliefs about the College before he was admitted as a trainee, as a result of the long time it took him to get admitted and his perception that he had to complete his PhD to be admitted to the training program. He was also highly anxious about the College even before he started the training. Having then failed the examinations twice, Dr Sklavos's peculiar vulnerability to an anxiety disorder, of itself constituted a necessary and sufficient cause of his specific phobia. In other words, the weight of the evidence indicates that Dr Sklavos would have suffered from his specific phobia in late 2011 whether or not the clinic list conduct, or the disciplinary investigation as a whole, had or had not occurred. The many other events he perceived to be adverse to him in his dealings with the College, taken with his examination failure, are more than a sufficient explanation for the development of the specific phobia given the evidence from the psychiatrists about Dr Sklavos's personality traits. At best for Dr Sklavos there is an "evidentiary gap" which might suggest that this is a case where "the cumulative operation of factors in the occurrence of the total harm in circumstances in which the contribution of each factor to that harm is unascertainable". 416 These matters would indicate that the requirements of s 5D(1)(a) of the Civil Liability Act are not satisfied in this case. If this is so then, had I found the College in breach of the assumed duty of care owed to Dr Sklavos (which I do not), it would have been necessary to consider the operation of s 5D(2), another issue not dealt with by the parties. Given this, I will say only that I doubt that any conclusion that the College should be held responsible for Dr Sklavos having developed a specific phobia about the College assessing his competence to be a dermatologist would be reasonably open. 417 Similarly, s 5D(1)(b) of the Civil Liability Act, the scope of liability issue, also remained largely unexplored. There are real questions in this matter, if negligence had been found, as to why it might be appropriate for the scope of the College's liability to extend to Dr Sklavos having developed his specific phobia. Dr Sklavos knew he was highly anxious about the College before he took up the offer of a training position. He knew he would be subjected to ongoing assessment and that, if there was any suggestion of misconduct by him, the College inevitably would commence a disciplinary investigation. He had a peculiar vulnerability to the development of an anxiety disorder of which he and the College were unaware. His personality traits, over which the College had no control, made him likely to perceive any interaction with the College about his performance as hostile and threatening. The College is performing a valuable public service. There is a public interest in the College being able to assess competency of trainees without fear of being held liable for psychiatric injury which might result from the ordinary application of assessment and investigation processes. All of these matters, and probably more, would have to be taken into account under s 5D(1)(b). 418 In respect of the alleged breach of the assumed duty of care, even if the clinic list conduct was a necessary condition of Dr Sklavos developing a specific phobia, there are other fundamental problems for the claim in negligence. The overriding problem is that the propositions put for Dr Sklavos fail to recognise that the relevant standard of care is to be assessed having regard to the context of the College investigating Dr Sklavos for serious misconduct for the purpose of determining whether he should be penalised (including by potential dismissal as a trainee). As such, the context is one involving a high likelihood of extreme stress and anxiety, none of which the College could avoid no matter what it did. 419 According to the submissions for Dr Sklavos, a reasonable person in the position of the College would have taken precautions against the risk of harm to Dr Sklavos in investigating allegations made regarding his professional conduct by: (i) not relying on untested hearsay allegations; (ii) taking sufficient steps to verify the material before it; (iii) according Dr Sklavos a sufficient opportunity to respond to the allegations; and (iv) not operating on false assumptions (for example, that Dr Sklavos had acknowledged that he had not seen patient CM); 420 It is not apparent what standard of care the submissions for Dr Sklavos are attempting to apply to the College in carrying out its disciplinary functions. It seems that the submissions treat the College as if it were a court bound by the rules of evidence and by particular requirements of natural justice which do not necessarily apply to a body such as the College. 421 It follows that the characterisation of the information given to Dr Relic as "untested hearsay" is beside the point. It was information on which the College was reasonably able to rely. It was supported by the other information already discussed (the attendance list and the content of the letter written by Dr Sklavos). Dr Relic compared the letter to CM's actual condition and took steps to verify the material by finding the attendance list. Dr Sklavos was provided with an opportunity to respond to the concerns in both the interview and thereafter, opportunities which he took. The College was not operating on a false assumption that Dr Sklavos had acknowledged he had not seen CM. The College was right to operate on the basis that all available material supported the conclusion that Dr Sklavos had not seen CM, and this remains the position today. Dr Sklavos's response remained the same at all times during and after the interview, that he did not know if he had seen CM, would not have written the letter if he had not seen her, and could not otherwise explain the letter other than perhaps a temporary file had been created or a mistaken attribution of patient notes had occurred. His denials and reference to possible explanations were not persuasive to the College, and rightly so. Dr Sklavos thus had a real opportunity to make his response known. 422 It was also put that the College should have taken greater care in investigating Dr Sklavos's conduct (including the steps referred to above) prior to reporting the relevant allegations to the NSW Medical Board or anyone else. Again, I disagree. Once it had given Dr Sklavos an opportunity to respond and received his response, it was appropriate for the College to reach its own view about the matter and refer it on to the NSW Medical Board. This is so whether or not some Fellows of the College had reached a conclusion regarding Dr Sklavos (albeit one subject to new material altering the position, such as Dr Brown) or whether they understood that the NSW Medical Board would carry put an investigation and the College's decision on sanctions would await the completion of that investigation. 423 The same conclusions apply to the allegation that greater care should have been taken before the College concluded that Dr Sklavos engaged in serious misconduct and decided to sanction him. As set out above, I consider that the College reasonably reached this view on the available material and was justified in deciding to sanction Dr Sklavos. The fact that the Board of Directors later reversed the sanction does not establish any breach of the duty of care in the Board of Education deciding to have imposed the sanction. Nor does it establish that the sanction as imposed was disproportionate. In any event, how any of these matters constitute the failure to take reasonable care to avoid psychiatric harm to Dr Sklavos remains unexplained. 424 The same conclusions also apply to each of the other things it is said the College should have done but did not do including taking into account the consequences to Dr Sklavos of a referral to the NSW Medical Board, taking greater care to prevent knowledge of the referral spreading, and correcting or clarifying "unjustified or false perceptions" about Dr Sklavos after the findings made and disciplinary action were overturned by the Board. My comments about all these matters are set out above but it is also relevant to say that I do not see how the College failed to fulfil the duty of care by reason of them. 425 In summary, nothing in the College's conduct in respect of the clinic list incident indicates any failure on the part of the College to take reasonable care to avoid the risk of psychiatric injury to Dr Sklavos. It follows that the negligence claim must also fail. No other conduct is relied upon. In particular, it is not suggested that anything the College did or did not do in respect of the examinations in 2010, 2011 or 2012 is relevant to the negligence claim. If it be relevant, I do not consider that a person of normal fortitude would have developed a specific phobia to the College's examinations by reason of failing the examinations in 2010 and 2011 (which I consider to be the cause of Dr Sklavos's phobia) in any event. 426 Consistent with my position about contractual damages, I will say something more about the damages issue separately. 6. DAMAGES AND COMPENSATION 427 As I have rejected Dr Sklavos's claims (other than in one respect which I consider immaterial) the claims for compensation and damages cannot be sustained. 428 Despite this, it is appropriate to make some observations about why, irrespective of my conclusions, I consider that no loss has been proved. I will do so briefly given that the issue is hypothetical having regard to my conclusions. 429 First, the claims for damages (and compensation) are based on the assumption that, without the alleged unlawful conduct (as variously identified), Dr Sklavos would have been made a Fellow of the College in 2012 or subsequently. That assumption is not sound. At best, Dr Sklavos had a chance of satisfying the College's requirements so as to enable election as a Fellow. At least three other trainees, apart from Dr Sklavos, have not managed to satisfy those requirements and have not been elected Fellows. Any assessment which treats as certain that Dr Sklavos would otherwise have been elected as a Fellow of the College is misconceived. At best, his case (accepting all of his claims for this purpose) involves the loss of a chance. Given his performance in the 2010 clinical examinations, which was before he had developed his specific phobia, his chance of satisfying the College of his competence to practice (by whatever method might have been theoretically possible) could not be rated highly. 430 Second, the claims are based on an assumption that – having been elected as a Fellow – Dr Sklavos's practice as a dermatologist would have developed along the same lines as dermatologists that Dr Sklavos selected as comparable to him, in that they have entrepreneurial instincts and are dedicated and hard working. Given the difficulties Dr Sklavos has had at every step in his attempts to become a trainee of the College and whilst a trainee, his self-assessment of comparable dermatologists is difficult to accept. Again, at its highest, Dr Sklavos had some, but not a great, chance of developing a practice as successful as those other dermatologists he had selected. 431 Third, the accounting evidence of Mr Slattery assumes that Dr Sklavos's hypothetical earnings should be compared to what he managed to earn over one period (July to September 2014) working full time as a locum general practitioner. It will be apparent that this comparison is between Dr Sklavos as a hard-working, dedicated and entrepreneurial dermatologist with Dr Sklavos as a general practitioner who, while working full-time, was doing so as a locum in a practice which was not his own. While Dr Sklavos gave evidence that his passion is dermatology not general practice, I do not accept that his asserted qualities of being hard-working, dedicated and entrepreneurial (assuming they exist) can be applied to one side of the ledger and yet ignored on the other. It is understandable that Dr Sklavos might work as a locum general practitioner while involved in this litigation in which, amongst other things, he seeks an order that the College elect him as a Fellow. It does not follow that if he is unable to practice as a dermatologist, Dr Sklavos will be content for the rest of his working life to take on short stints as a locum general practitioner in other practices. 432 The fact that Dr Sklavos is not a vocationally registered general practitioner (which allows higher Medicare rebates to be claimed for certain items) does not mean that he would not be able to establish a general practice about which he could be as hard-working, dedicated and entrepreneurial as he says he would have been in respect of the dermatological practice he said he would have established. Yet there is no evidence about what a hard-working, dedicated and entrepreneurial general practitioner (vocationally registered or not) might earn throughout a career. As such, the actual future earnings side of the ledger is not the subject of any reliable evidence, making it impossible to assess loss. This is not a case where an assessment can be made doing the best that can be done. One side of the ledger is simply unreliable and unrealistic, leaving the quantification of loss unknown. For all I know there may be no loss at all. A hard-working, dedicated and entrepreneurial general practitioner may have less, the same or even a greater earning potential than a dermatologist. These are matters for proof. What I can say is that I do not accept that evidence of what Dr Sklavos in fact earned in his best three month period as a locum general practitioner while he was involved in this litigation represents a reasonable view of his earning potential as a general practitioner. The duty to do the best I can in assessing damages does not extend to speculating about whether any loss has been suffered at all when it was within the power of Dr Sklavos to call such evidence. Some loss at least must be proved by evidence before the court may then try to do the best it can to assess the loss. Contrary to the submissions for Dr Sklavos, it was not up to the College to call such evidence. 433 It follows that the requirement in s 13(1) of the Civil Liability Act (a "court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury") is not met in this case. 434 Fourth, and as will be apparent, I do not give weight to Dr Sklavos's evidence that he "would find it difficult to work as a general practitioner on a long-term basis, as it is a career for which he has no passion". While not tested in cross-examination, such obviously self-serving evidence is not required to be taken at face value. It is evidence given while the proceedings are on foot and while Dr Sklavos hopes to be made a Fellow of the College. It is evidence of a state of mind that has nothing to do with any allegations against the College. It follows that I do not accept the submission that the calculations of Mr Slattery over-estimate Dr Sklavos's earnings potential as a general practitioner. This is so irrespective of whether Dr Sklavos wishes to become a vocationally registered general practitioner or not. General practitioners are not required to be vocationally registered. Nor are they required to bulk bill, therefore the Medicare rebate is not the limit of earning capacity. It would be open to Dr Sklavos to develop his own general practice (an option available to him since he practically ceased training at the College) if he chooses to do so, bringing to bear the dedication and entrepreneurial skills he says he would have applied to a dermatological practice if he chooses to do so. There would be no rational reason to assess damages on any other basis. 435 Fifth, Mr Slattery's calculations do not appear to make any allowance for the vicissitudes of life. While such an allowance can be made by the Court, there is no purpose in so doing when any loss remains in the realm of mere speculation. 436 Sixth, the notion of contractual damages for Dr Sklavos's anxiety related distress is not relevantly distinguishable from the rejection of that claim in Shahid at [233]. The College never promised Dr Sklavos an anxiety-free environment. It was obvious that the training program involved the potential for highly stressful experiences including, but not limited, to ongoing assessments, potential disciplinary issues and the need to pass the final examinations. Insofar as there was a contract it was not one the object of which was to ensure Dr Sklavos was not made anxious or stressed throughout the course of his training (Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344 at 365). To the contrary, it must have been clear to all trainees of the College that they were embarking on a program which would involve potentially high levels of stress and anxiety by reason of the requirement for ongoing assessment of performance and the risk that disciplinary issues might need to be investigated and acted upon during their training. 437 The submissions on behalf of Dr Sklavos to the contrary based on the alleged terms being intended to "provide Dr Sklavos with an environment in which he will not experience anxiety or psychiatric injury" lose sight of the true nature of the relationship between Dr Sklavos and the College. The environment of a trainee for a specialist medical qualification, where trainees know they will face a program of ongoing assessment and examination over years, focused solely on the quality of their performance, is one that inevitably involves substantial stress and anxiety. The College could not be found to have contracted with Dr Sklavos to provide him with an environment in which he will not experience anxiety or the risk of psychiatric injury as a result – the potential for both is inherent in the nature of the training program irrespective of any breach of any obligation to which the College might be subject. The circumstances are thus not analogous to those considered in Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 at [315]-[317]. 438 Seventh, Dr Sklavos accepted that his contractual and tortious claims were subject to the restrictions in the Civil Liability Act as, if successful, any award of damages would be "an award of personal injury damages" as provided for in s 11A of that Act. As such, s 12 would apply to limit damages for past and future economic loss to an amount equal to three times the amount of average weekly earnings at the date of the award. Further, s 14 would apply which involves a prescribed discount rate greater than that applied by Mr Slattery. Dr Sklavos's submissions did not explain why, insofar as he claimed for economic loss as part of his claim for compensation under the AHRC Act, the same approach would not be taken given the terms of ss 5A and 11A of the Civil Liability Act. For present purposes it is not necessary to resolve the question whether an order for compensation under s 46PO(4)(d) of the AHRC Act may also be, in whole or part, be an award of damages within the meaning of ss 5A and 11A of the Civil Liability Act. I received insufficient submissions from the parties to venture any view about this question. However, given that an order for compensation under s 46PO(4)(d) of the AHRC Act is discretionary, insofar as Dr Sklavos's claims for compensation were based on loss of past and future earning capacity by reason of personal injury, it is difficult to see why, as a matter of principle, a court would order damages greater than could otherwise be obtained against the same defendant. Similar considerations would apply to non-economic loss which is limited by s 16 of the Civil Liability Act, which Dr Sklavos accepted applied to his claims in contract and tort. 439 Otherwise, there is no basis on which to sustain any of the other aspects of Dr Sklavos's compensation claims. He is not entitled to any refund of the training levies he paid in each year up to 2011. Apparently, he paid $3,660 to sit the examinations in 2012 which he never sat. It is not clear to me (and was not a part of the case in any real way) if he was entitled to a refund of this fee, given that he withdrew from the examinations. I was not taken to any document explaining the College's refund policy, if there is one. If there is a policy on refunds, then no doubt the College should act in accordance with it. The costs of the proceedings before the AHRC are not refundable to Dr Sklavos by the College. Dr Sklavos has not succeeded in his discrimination claims in this proceeding so those costs must be to his own account. 440 The pain, distress and humiliation Dr Sklavos suffered were not a result of any breach of obligations owed to him by the College. The College was justified in the actions it took in respect of the clinic list incident irrespective of the fact that Dr Sklavos undoubtedly suffered pain, distress and humiliation as a result of the investigation of his conduct and the sanction imposed on him. The further pain, distress and humiliation Dr Sklavos suffered by reason of failing the 2010 examinations was caused only by the fact of failure, not by any conduct of the College. To the contrary, the error the College made gave Dr Sklavos an opportunity to become a Fellow in 2010 by passing the 2010 clinical examination despite not having passed the written examination. The College's requirement that Dr Sklavos re-sit the written examination in 2011 (and thereafter), which no doubt caused him further distress, was consistent with the College's published requirements. It was not discriminatory or in breach of any legal obligation which the College owed to Dr Sklavos. The College's refusal to elect Dr Sklavos as a Fellow in 2012 based on his qualifications and experience was appropriate based on the information available to it and in all of the circumstances. The College's refusal to waive its requirement that Dr Sklavos pass the examinations was not discriminatory or otherwise unlawful. Nor was its response to his request for adjustments to be made to the examinations given his specific phobia. I have no doubt that all of these matters caused Dr Sklavos significant distress, but the distress is not compensable by the College merely because it is his perceptions of the interactions with the College which have resulted in the distress. Given the lack of a legal foundation for any claims for damages, the additional claims for aggravated damages are immaterial. 7. CONCLUSIONS 441 I consider that Dr Sklavos's claims against the College cannot be accepted. The amended originating application should be dismissed with costs. I certify that the preceding four hundred and forty-one (441) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 1 March 2016