Ryan as Personal Representative of the Estate of the Late Peter John Ryan v Sunshine Coast Hospital and Health Service - [2021] FCCA 1537

FEDERAL CIRCUIT COURT OF AUSTRALIA
Ryan as Personal Representative of the Estate of the Late Peter John Ryan v Sunshine Coast Hospital and Health Service [2021] FCCA 1537

File number(s): BRG 456 of 2019

Judgment of: JUDGE JARRETT

Date of judgment: 6 July 2021

Catchwords:
HUMAN RIGHTS – discrimination legislation – grounds of discrimination – disability or impairment – access

HUMAN RIGHTS – discrimination legislation – grounds of discrimination – disability or impairment – provision of goods and services

Legislation:
Australian Human Rights Commission Act 1986 (Cth), ss 46PH(1B)(b), 46PH(2)

Disability Discrimination Act 1992 (Cth), ss 4, 6, 6(1), 6(2), 6(3), 23, 23(b), 23(c), 23(e), 24, 24(b), 24(c), 31, 31(1), 32

Disability (Access to Premises - Buildings) Standards 2010, cll. D3.4, D3.12

Cases cited:
Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915

Catholic Education Office v Clarke (2004) 138 FCR 121

Clarke v Catholic Education Office (2003) 202 ALR 340

Daghlian v Australian Postal Corporation [2003] FCA 759

Hurst v Queensland (2006) FCR 562

Price v Civil Service Commission [1978] l All ER; Styles v Department of Foreign Affairs & Trade (1988) EOC 92-239

Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251

Styles v Department of Foreign Affairs & Trade (1988) EOC 92-239

Travers v New South Wales [2000] FCA 1565

Travers v New South Wales [2001] FMCA 18

Waters v Public Transport Corporation (1991) 173 CLR

Number of paragraphs: 102

Date of last submission/s: 26 June 2020

Date of hearing: 26 June 2020

Place: Brisbane

Counsel for the Applicant: Mr O’Gorman SC

Solicitor for the Applicant: Robert Bax & Associates

Counsel for the Respondent: Mr Freeman

Solicitor for the Respondent: Crown Law
ORDERS

BRG 456 of 2019

BETWEEN:
DAVID ANDREW RYAN AS PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE PETER JOHN RYAN

Applicant

AND:
SUNSHINE COAST HOSPITAL AND HEALTH SERVICE

Respondent

ORDER MADE BY:

JUDGE JARRETT

DATE OF ORDER:

6 JULY 2021

THE COURT ORDERS THAT:
1.Within 21 days of the date of these orders the parties bring in agreed minutes of orders that reflect these reasons and failing agreement, the orders for which each contends.

REASONS FOR JUDGMENT
JUDGE JARRETT:

Hospitals are attended by members of our community who are unwell or infirm in various ways. Their illness or infirmity almost without exception, impacts upon their capacity in one way or another. Sometimes the incapacity concerns a person’s physical abilities, sometimes their mental faculties and sometimes both. Incapacity can sometimes be almost complete, sometimes slight or imperceptible or anywhere in between. This case concerns the ability of the applicant, a person with physical impairments, to access a Hospital, the challenges presented by those impairments to that ability and the impact of the design and construction of the Hospital upon his ability to access it and the services offered there.
The applicant in these proceedings, Mr Peter Ryan, was a retiree that lived in Caloundra. At the time of these proceedings he was about 75 years of age. He was unwell. Regrettably, Mr Ryan passed away before I was able to deliver these reasons. Mr Ryan’s legal personal representative has now been substituted as the applicant in these proceedings.
Mr Ryan suffered from a range of medical conditions that required him to attend hospital very regularly – usually at least twice per month, although leading up to the trial of the proceedings the frequency had reduced to bi-monthly visits. Mr Ryan used a wheelchair for mobility.
In about 1970 Mr Ryan had been diagnosed with diabetic retinopathy – a degenerative condition affecting his sight. At the time of the trial before me Mr Ryan was left with only 2% useable vision. He was only able to make out shadows of people and objects. He could become disoriented very easily and generally needed to use raised braille and tactile signage (referred to in the evidence as “RBT”), tactile ground surface indicators (referred to in the evidence as “TGSIs”) and wayfinding signage to reorient himself when out and about.
The closest public hospital facility to Mr Ryan’s residence was the Sunshine Coast University Hospital located at Birtinya. The respondent administers the Hospital and at the Hospital it provides a range of subacute, ambulatory and extended care, community health, mental health and oral health services to members of the public. The Hospital is relatively new and opened to patients in about March, 2017.
In these proceedings Mr Ryan claimed that by reason of certain design and construction elements of the Hospital building, the respondent required him to comply with a number of “requirements or conditions” in respect of his access to the Hospital premises and the goods, services and facilities provided at the Hospital. He claimed that his inability to meet the requirements or conditions meant that the respondent discriminated against him on the basis of his disabilities and in particular his diminished sight and poor mobility. He claimed that the discrimination was unlawful by reason of ss.6(1) and 6(2) of the Disability Discrimination Act 1992 (Cth). He claimed that the respondent also breached ss.23(b), 23(c), 23(e), 24(b), 24(c) and 31 of that Act. He claimed that there were many respects in which the design or construction of the Hospital did not meet the Disability (Access to Premises - Buildings) Standards 2010 authorised and made pursuant to s.31(1) of the Disability Discrimination Act or the relevant Australian Standards. By way of relief, Mr Ryan sought and his personal representative continues to seek orders for the rectification of various defective works identified at the Hospital.
The application deals with two main areas of concern, namely, access to the Hospital building and access to the services and facilities provided by the respondent once a patient is inside the Hospital.
The respondent accepts that some aspects of the Hospital’s design and construction discriminated against Mr Ryan in the way he alleged. Over the course of these proceedings the scope of the dispute between the parties has narrowed having regard to the evidence that has been obtained by each of the parties. That part of the case that concerned access to the Hospital from the outside world – carparks, set down areas, public transport areas and access from surrounding buildings and facilities has now been resolved having regard to the submissions made by the parties. As a result of appropriate concessions by each party and confirmed in their submissions, the respondent agrees to undertake and complete certain rectification and other works to address those issues identified and accepted as defective in some way or another. The concession extends to some work inside the Hospital that is needed to address the ability of a person with vision impairment to navigate the interior of the Hospital.
The respondent agrees to the making of orders reflecting the conceded matters. I have set out the work that the respondent concedes is required to remedy the admitted non-compliance in annexure A to these reasons. In summary, that work involves:
(a)rectification work to the installation and presence of TGSIs in the emergency set down area of the Hospital;
(b)rectification work to the luminance contrast of the TGSIs with the surrounding ground surface;
(c)the rectification and installation where necessary of directional TGSIs linking outlying areas to the main entrance of the Hospital;
(d)the rectification of visual indicators on glazing and glazed doors so as to bring them into compliance with the Access Standards; and
(e)the rectification of the luminance contrast of certain elements of the Hospital structure so as to bring that into compliance with the Access Standards.
THE ISSUES
It was put to Mr Ryan and accepted by the respondent that the issue for determination in these proceedings is not whether the respondent has breached the Disability Discrimination Act and the Standards but rather, the general issue is the identification of the extent to which the respondent has breached the Act and Standards.
There are twelve items of rectification that remain in dispute that concern the ability of a person with a vision impairment to navigate the interior of the Hospital so as to access the services offered there. Specifically, the matters that remain in dispute are whether the respondent should:
(a)paint the whole of all bollards in the Emergency Vehicle Only Set Down Area black;
(b)refinish seats and columns so that at the intersect with the ground surface they achieve 30% luminance contrast and treatment is to have a minimum depth or height of 200mm;
(c)replace all directional signs which are currently floor mounted or wall mounted with raised tactile and Braille signs ensuring that:
(i)all content within these signs is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading; and
(ii)the sign content is accessible regarding lettering height (min Cap Height = 15mm), design, luminance contrast, graphics and Braille;
(d)replace all lift totem signs with raised tactile and Braille signs ensuring that:
(i)all content within these signs is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading; and
(ii)the sign content, including maps, are accessible regarding lettering height, design, luminance contrast, graphics and Braille;
(e)replace all directory and directional signage within lift lobbies with raised tactile and Braille signage ensuring that:
(i)all content within these signs is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading;
(ii)the sign content, is accessible regarding lettering height, design, luminance contrast, graphics and Braille; and
(iii)the sign surface is matte in finish;
(f)install ward identification signage to all wards with raised tactile and Braille signage ensuring that:
(i)It is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading; and
(ii)sign content is accessible regarding lettering height, design, luminance contrast and Braille;
(g)install room identification signage with raised tactile and Braille signage ensuring that:
(i)signage is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading; and
(ii)sign content is accessible regarding lettering height, design, luminance contrast and Braille; and
(h)install external directional signs within the public forecourt with a raised tactile and Braille sign ensuring that:
(i)all content within this sign is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading;
(ii)sign content (including maps) are accessible regarding lettering height, design, luminance contrast, graphics and Braille; and
(iii)the map orientation is “heads up” to the required direction of travel (public forecourt directional signs);
(i)replace the stainless steel handrail on the Level 1 glass balustrade with a timber handrail;
(j)paint walls and columns in all corridors where the walls and the floors do not have a minimum 30% luminance contrast so that the walls and columns achieve a 30% luminance contrast with the floor finish;
(k)refinish all vinyl floor surface to remove polished surface finish and to return the surface back to its original matte finish; and
(l)remove reflective finish on Lift and Lobby Walls and Signs Surfaces.
Ultimately, the issue to be determined is whether requiring Mr Ryan to comply with the requirements imposed upon him to access the Hospital and its services in the way in which it does, is reasonable.
I have concluded that it is not.
JURISDICTION
The Court has jurisdiction to deal with these claims because on 11 January, 2019 Mr Ryan made a complaint to the Australian Human Rights Commission. That complaint was terminated by the President of the Commission under s.46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) when conciliation of the complaint was not successful. A notice of termination pursuant to s.46PH(2) of the Act was issued on or about 7 May, 2019 in respect of Mr Ryan’s complaint.
ABOUT THE HOSPITAL
The Hospital consists of a six level building, multi-storey carpark, on-site carpark, drop-off area, emergency set down area, forecourt and bus links. Building the Hospital cost $1.8 billion. It was built by way of Public Private Partnership. Exemplar Health (a special purpose consortium) was engaged to design, construct, finance and commission the Hospital and maintain it for 25 years after opening. Maintenance costs amount to about $72 million per annum.
The respondent operates the Hospital. It is a public tertiary teaching hospital that provides a range of healthcare services including oncology, paediatrics, maternity services, cardiology, radiography, radiation, mental health and psychiatry, respiratory and general medicine and surgery services. It has many visitors. The number of people attending the Hospital in the September, 2019 quarter exceeded 37,000. As might be expected the people attending the Hospital to access its services exhibit a wide range of physical and psychological attributes and conditions. It is self-evident that it is necessary for the respondent to accommodate the needs of a broad range of people who might attend the Hospital to access its services.
ABOUT MR RYAN
Since 2016, Mr Ryan used a wheelchair for mobility.
Mr Ryan gave evidence about his experiences attending the Hospital. His evidence was that he was able to find his way independently in areas of the Hospital where he was familiar, but he could become disoriented and he used RBT, TGSI or RBT wayfinding signage to reorient himself.
Mr Ryan’s involvement with the Hospital pre-dates him being a patient there. As part of the design process for the Hospital, Queensland Health hosted design forums for the community to provide feedback and input into the design of the Hospital. A group was established called the Sunshine Coast University Hospital - Community Advisory Group. In 2015, Mr Ryan was one of the original members of the Community Advisory Group. The CAG’s purpose was to engage with the Hospital construction authority to represent the community. The purpose was to attempt to ensure that the Hospital catered for all members of the community.
Mr Ryan had a keen interest in ensuring that the Hospital would be able to be accessed by people who were vision impaired because of his own experiences. At the time that the Hospital was being designed and constructed, he attended monthly meetings to consult on the design and construction of the Hospital. The meetings were usually attended by members of the CAG, senior members of the Hospital and the builders of the Hospital. When Mr Ryan was a member of the CAG, he spoke with the committee representing the Sunshine Coast Public University Hospital extensively about the inclusion of the following at the Hospital:
(a)RBT signage for vision impaired people being included in lobbies and on hospital directories;
(b)room numbers being RBT;
(c)TGSI being located where needed throughout the entire hospital and its surrounding area; and
(d)wayfinding signage at intersections indicating wards and other operational such as x-ray departments.
Mr Ryan gave evidence that after attending the Hospital as a patient, he saw that a number of these suggestions were not implemented and he found it very difficult to find his way around the Hospital. The Hospital does have volunteers who, according to the evidence, assisted people like Mr Ryan and others with many things including getting around the Hospital.
Usually when Mr Ryan attended the Hospital, he went to the renal clinic. The renal clinic is located on the first floor of the Hospital. When he first started to attend the Hospital Mr Ryan experienced difficulty in getting to the renal clinic because, he said, there is no usable signage to locate the clinic. At the time of the trial, Mr Ryan still found it difficult to attend the renal clinic because of the glare from floors and windows and his evidence was that he could become disoriented while on his way to the clinic. Once he was disoriented there was no usable RBT signage to reorient himself. Moreover, because room numbers were not displayed in RBT, Mr Ryan could not identify if he was in the right area or on the right path to the renal clinic if he had become disoriented.
On occasion Mr Ryan also needed to visit the cardiac clinic. The cardiac clinic is located on level 1 of the Hospital. On one of those occasions he was scheduled for an appointment with the doctor at 2:00pm. He attended the Hospital and while he had difficulty finding his way to the cardiac clinic, he made his way there with the assistance of a volunteer. He did not see the doctor until after 5:00pm. When he finished his appointment, all volunteers had left the Hospital and there was no-one to assist him to leave the Hospital. Mr Ryan had difficulty leaving the Hospital because there was no one to assist him and no RBT signage or wayfinding signage that he could use to orient himself. Mr Ryan was only able to leave the Hospital because a stranger directed him towards an exit.
Mr Ryan used to have a guide dog that would help him to get to where he needed to go. Sadly, his guide dog passed away about four years ago. Since then, Mr Ryan found it very difficult to navigate the Hospital. His evidence was that he had visited the Hospital quite regularly and not always at regular times and there were many occasions when volunteers were not there or were not available. In any event, because there were so many patients at the Hospital that need assistance, the volunteers were not always available to assist him. In addition, because Mr Ryan cannot see, he could not tell if the person offering assistance or from whom he was seeking assistance was, in fact, a volunteer or a stranger. As Mr Ryan described in his re-examination, not all strangers are friendly.
Mr Ryan’s evidence was that in his experience, the volunteers are usually so busy that they cannot stay with him while he waits for and completes his appointment. Without the assistance of a volunteer, it could be difficult for him to find his way out of the Hospital or find a bathroom. Mr Ryan’s evidence was that as a result of the poor signage and his inability to find his way around the Hospital, he had soiled himself.
Mr Ryan was a man who valued his independence and as it ebbed away in the later years of his life, he struggled to accept that. Thus, he found it difficult and distasteful to have to rely upon volunteers to assist him to get around the Hospital. He considered himself to be relatively independent despite his vision impairment and found it embarrassing and demoralising to be told that volunteers were available to help him when some of the time they were not. Mr Ryan gave evidence that he felt as though he lost his autonomy and independence because of the layout of the Hospital and because there were not enough signs he was able to read so as to assist him to find his own way.
The Hospital has several entrances. The entrance that Mr Ryan habitually used was located at the main entrance to the Hospital. The main reception for the Hospital is also located there. At the main entrance the TGSI’s end about 20 metres from the front door. There is a large forecourt that has no TGSIs that show a path to:
(a)any other buildings located at the Hospital;
(b)the short-term or long-term parking;
(c)the public transport hub; or
(d)the taxi ranks.

Leaving the Hospital was difficult for Mr Ryan as well and according to his evidence, was the “worst part of attending the Hospital”. Sometimes he could locate a volunteer and they would take him to the entrance of the Hospital but no further. Whilst he could access directional TGSIs from that point, they only went to the short-term pick-up/drop-off area. Mr Ryan was unable to use that area safely with his wheelchair. Instead, Mr Ryan would use the emergency pick-up/drop-off point for the Hospital. However, using that area was also problematical. According to the evidence there are some bollards in that area but no TGSIs. Mr Ryan was frightened that when using this area that he would roll past the bollards without realising that he had passed them and onto the roadway. Because there are no TGSIs in the area and because the roadway is at the same level as the footpath, Mr Ryan had no idea if he was on the footpath or the roadway unless he came into contact with a bollard.
Mr Ryan was habitually dropped in the emergency pickup/drop-off area by the drivers taking him to the hospital. Once he was dropped off and unless he was able to have the driver take him to the clinic he is attending (something which did not occur regularly), it was very difficult for him to orient himself. The taxi drivers and other drivers that were dropping off at the Hospital, however, would usually oblige him and take him to the entrance of the Hospital.
By contrast, at the designated passenger pick-up/drop-off area there are warning signs and directional TGSIs. These ensured that Mr Ryan could find the passenger pick-up/drop-off area and did not enter the roadway. However, the directional TGSIs in the area did not allow enough room for him to navigate his wheelchair without running into them. If he did that, he could become stuck in the TGSIs making it difficult to navigate the area. There are also poles in the area that Mr Ryan needed to navigate around, forcing him to cross over the TGSIs. Overall, it was very difficult for him to use this area.
Mr Ryan gave evidence that what he perceived as defects in the way in which the Hospital accommodated users with vision impairments like him, made him feel like he was likely to get lost or that, perhaps he would be unable to find a toilet for himself and soil himself again. Mr Ryan also felt like a burden on the volunteers at the Hospital. He generally felt less independent when using the Hospital.
OTHER WITNESSES
Mr Ryan called evidence from Dr Penelope Galbraith, a Project Manager and Access Consultant. Dr Galbraith prepared a report which in broad terms, deals with access to the Hospital by patients, visitors and other members of the public. Dr Galbraith was cross-examined.
Mr Ryan also called evidence from Mr Bryce Tolliday, an Access Consultant accredited by the recognised professional body known as the Association of Consultants in Access Australia. Mr Tolliday’s evidence was given in the form of two affidavits and dealt with questions of wayfinding and wayfinding signage. Mr Tolliday was cross-examined.
The expertise of the two expert witnesses called by Mr Ryan was not challenged.
The respondent relied upon evidence from:
(a)Mr Peter Sanderson, Manager, Public Private Partnership (PPP) Contract Administrator, employed by the respondent; and
(b)Ms Patricia Flores, a Senior Access Consultant and Occupational Health and Safety Consultant. Ms Flores prepared a report dealing with the matters in issue in this case.
Each of the respondent’s witnesses was cross-examined and the expertise of Ms Flores was not challenged.
THE LEGISLATIVE FRAMEWORK
According to ss.23 and 24 of the Disability Discrimination Act:
23 Access to premises
It is unlawful for a person to discriminate against another person on the ground of the other person’s disability:
(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b) in the terms or conditions on which the first‑mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
(c) in relation to the provision of means of access to such premises; or
(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e) in the terms or conditions on which the first‑mentioned person is prepared to allow the other person the use of any such facilities; or
(f) by requiring the other person to leave such premises or cease to use such facilities.
24 Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Section 6 of the Disability Discrimination Act deals with indirect discrimination. As it is central to the issues in these proceedings, I will set out in full:
6 Indirect disability discrimination
(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.
It is uncontroversial that the elements of indirect discrimination, in the context of the present case, are as follows:
(a)there is the imposition of a term, requirement or condition upon Mr Ryan by the respondent;
(b)Mr Ryan does not comply, or is not able to comply, with the term, requirement or condition;
(c)the requirement or condition is more easily satisfied by persons who do not have Mr Ryan’s disabilities; and
(d)the requirement or condition imposed on Mr Ryan is not reasonable having regard to the circumstances of the case.
There is no dispute that Mr Ryan is a person with a disability as that term is defined in s.4 of the Act. The respondent accepts that Mr Ryan is legally blind, uses a wheelchair and has a number of other conditions. The respondent accepts that Mr Ryan has a disability in accordance with s.4 of the Act.
There is also no dispute that the respondent operates the Hospital and provides services to members of the public within the definition of that term in s.4 of the Act.
CONSIDERATION
Requirements or Conditions
The applicant’s case is that the respondent required him to comply with a number of requirements or conditions in respect of him accessing the Hospital and its services. His case was limited to particular areas of the Hospital with which he had particular problems. In summary, those areas are:
(a)the area between the emergency vehicle set down and passenger pick up/drop off areas, on the one hand, and the area leading to the main entrance to the Hospital, on the other;
(b)the areas between the short term parking area and the public transport station, on the one hand, and the area leading to the main entrance to the Hospital, on the other hand;
(c)some signage within the Hospital; and
(d)wayfinding within the Hospital.
As I have indicated, those aspects of the case dealing with the outside areas of the Hospital have now been largely resolved. The focus of these reasons is upon what remains unresolved.
Accessing the Hospital
The only matter that remains outstanding in respect of the external access to the hospital is whether certain bollards which are in place in the Emergency Vehicle Only Set Down Area at the main entrance of the Hospital should be painted black in their entirety.
Mr Ryan submitted that it is a requirement or condition that people wishing to access the Hospital must be able to safely identify and access the emergency vehicle set down and passenger pick up/drop off areas and the area leading to the main entrance of the Hospital without assistance if they are to travel safely between those locations. He argued that people cannot do that if they have a vision impairment such as his. The requirement or condition he identified requires people entering those areas so as to access the Hospital being able to:
(a)identify a hazard, such as a building fixture or fitting, including the building itself or part of the building, which is located within the pedestrian surface, or indeed the roadway itself, before walking into the hazard;
(b)identify a path of travel to the main building entrance that is without the risk of injury from such hazards, building components or roadways; and
(c)being able to do that without the need of direct assistance to move safely through a space associated with the building.
The respondent accepted that it imposed the requirement on Mr Ryan as he contends. It also conceded that the imposition of that requirement was unreasonable. That concession has led to the respondent’s acknowledgment that work and enhancements are needed in the external areas of the Hospital.
Two matters of rectification remain and are pursued by the applicant, namely:
(a)painting the entirety of all bollards in the forecourt area black; and
(b)refinish seats and columns so that at the intersect with the ground surface they achieve 30% luminance contrast and treatment is to have a minimum depth or height of 200mm.
I will deal with these matters later in these reasons.
Signage
Wayfinding is a term used in much of the evidence in this case. In the context of the present case it refers to a person’s ability to find their way into the hospital and once inside, around the Hospital and its interior to get where they need to be. The evidence talks about wayfinding strategies or wayfinding systems and large public buildings such as the Hospital have wayfinding strategies or systems designed and implemented to help users of the Hospital. Wayfinding is not just about assisting those with vision impairment to navigate an environment, it addresses how all people will do so.
Signage is part of a wayfinding system necessary to assist those entering the Hospital to find their way to where it is that they need to go. But signage is not the only element to an effective wayfinding system. There are other elements such as the built environment itself, pre-visit information given to attendees and the assistance that might be given by staff and volunteers on-site.
The evidence shows that there was a wayfinding strategy developed for the Hospital and submitted to the respondent which was based upon the Queensland Health Wayfinding Design Guidelines 2010, published in December 2010. Despite that strategy document suggesting that it aspired to compliance with statutory requirements including the Building Code of Australia and the Disability Discrimination Act, many areas of the Hospital are without raised tactile and/or Braille signage that can be accessed by those with a vision impairment.
Mr Ryan submitted that the absence of raised tactile and/or Braille signage in various public areas of the Hospital meant that it is a requirement or condition that by reason of the design and construction of the Hospital people wishing to access the Hospital must be able to do so without the assistance of such signage. His case was that the absence of such signage, by itself, imposed the requirement or condition without more.
Mr Tolliday gave evidence about these matters. In his first affidavit he pointed out that:
(a)none of the information on the Main Direction Signs is provided in a raised tactile and Braille format;
(b)large parts of the information provided on the Main Direction Signs is located above 1600mm or below 1200mm above the floor surface;
(c)the information on the Main Direction Signs is not raised or embossed to a height of not less than 1mm and not more than 1.5mm and upper case characters are less than the required minimum height of l5mm;
(d)the information on the Lift Lobby signs is not presented in a raised tactile format and no Braille information is provided and some of the information is outside the 1200mm to 1600mm;
(e)the touch screen device in the kiosk cannot be used by people with low vision;
(f)Department signs and Clinic signs are located above 1800mm from the finished floor level and no information is in a raised tactile or Braille format;
(g)numerous laminated signs throughout the Hospital which provide information about the direction to various Departments and Clinics do not include information in a raised tactile and Braille format;
(h)none of the room signs have information in a raised tactile and Braille format; and
(i)there is disabling glare at signs within lift lobbies, floor finishes on all levels and glazed balustrades (the latter being illegible when viewed against polished floors and glazed building facades).
The respondent accepts that it has imposed a requirement or condition upon Mr Ryan that in order to access the services and facilities of the Hospital, he had to do so without the use of signs that contain information in Braille and tactile format.
Wayfinding system
Mr Ryan submitted that it is a requirement or condition that people wishing to access the Hospital or wishing to access the goods and services and facilities provided by the respondent at the Hospital must be able to do so without the assistance of a functional wayfinding strategy. As the respondent points out, that is different to the requirement originally pleaded by Mr Ryan in his statement of claim. The import of the use of the word “functional” appears to be that the wayfinding strategy that people who are legally blind must use to find their way to the Hospital’s facilities and services is lacking because such people do not have sufficient usable vision to read the wayfinding signs presently available. They must rely exclusively on volunteers or others to provide wayfinding guidance or information as part of the wayfinding strategy or design.
In this respect Mr Tolliday states:
55. The Foreword of AS1428.4.2:2018 describes wayfinding as being of particular importance to people who are blind or have low vision as they cannot utilize many of the visual cues available to people who are sighted. The ease and accuracy with which a person who is blind or who has low vision can find their way through specific environments is dependent upon many factors including the complexity of the physical environment and the number of wayfinding decisions required to reach their destination. This Australian Standard stat that where static signs are used, people who are blind or have low vision need information that is provided in a raised tactile text, symbols and braille formats that are consistently applied.
56. As described in the Affidavit there are numerous examples of how the wayfinding design within the hospital excludes people like Mr Rvan who has low vision and is legally Blind. This includes the impacts of poorly defined shorelines, the use of highly polished surfaces which are exposed to high levels of natural or artificial light, a failure to provide any signs apart from toilet signs in a raised tactile and Braille format and with a legible font size and with information within a reachable zone for touch reading and inadequately described hazards within the Emergency Area and a failure to provide a fully connected tactile walkway within the forecourt of the building Main Entrance.
Further, Mr Tolliday was of the opinion that:
52. In order to reduce the impacts of glare, I am of the opinion that the following would need to occur:
(a)Either replace flooring with a matt finish flooring or change the polishing of the floor during cleaning to create a matt finish
(b)Replace all signs which with signs with matt surfaces
(c)Where glazing intersects with flooring within an accessway either:
(i) Incorporate an AS 1428.1:2009 compliant vision strip within the glazing; or
(ii) Install a strip of colour into the floor surface with a minimum width of 200mm which has 30% minimum luminance contrast with the floor surface into or onto which it is being applied.
53. I am of the opinion that in order to create usable shorelines, the following would need to occur:
(a)change the colour of the floor or wall so that they have a minimum of 30% luminance contrast with each other; or
(b)introduce a 200mm deep border into the floor finish for all shorelines which has a minimum 30% luminance contrast with the floor finish; and
(c)paint all columns within shorelines so that they have a minimum 30% luminance contrast with the walls and the floor finishes.
NOTE: For more information on using Luminance Contrast for features within an accessway refer to AS1428.2:1992 and the Appendices of AS1428.4.2:2018.
Given the way in which Mr Ryan’s case has now been framed, the real question hidden in this aspect of the case is whether the use of volunteers, in conjunction with the other elements of the wayfinding strategy meant that the wayfinding strategy was “functional”. I was not addressed on what was meant by that word in the context of this aspect of Mr Ryan’s claim.
What is clear from the evidence, however, is that there was a wayfinding strategy in place that consisted of signage, the built environment itself, pre-visit information given to attendees and the assistance that might be given by staff and volunteers on-site. But, given the respondent’s concession that there was a requirement cast upon Mr Ryan and others like him that in order to access the services and facilities of the Hospital, he had to do so without the use of signs that contained information in Braille and tactile format, I conclude that the system of wayfinding that was in place was not a functional wayfinding strategy for Mr Ryan or people with similar impairments.
Conclusion – requirements or conditions
I find that the design and construction of the Hospital imposed upon Mr Ryan the requirements for which he contends in respect of both signage and access.

It was a requirement that people wishing to access the Hospital must be able to safely identify and access the emergency vehicle set down and passenger pick up/drop off areas and the area leading to the main entrance of the Hospital without assistance if they were to travel safely between those locations. The lack of raised tactile and/or Braille signage imposed a requirement or condition upon Mr Ryan that he must be able to access the Hospital without the assistance of such signage. The lack of a wayfinding strategy designed to accommodate vision impaired people like Mr Ryan imposed upon Mr Ryan the requirement that he must be able to access the Hospital without the assistance of such a wayfinding system or strategy.
Disparate impact of the requirements or conditions
Whether a person is unable to comply with a requirement or condition is a question of fact: Clarke v Catholic Education Office (2003) 202 ALR 340 at [2], [10], [49]; Catholic Education Office v Clarke (2004) 138 FCR 121; Daghlian v Australian Postal Corporation [2003] FCA 759 at [110]; Price v Civil Service Commission [1978] l All ER; Styles v Department of Foreign Affairs & Trade (1988) EOC 92-239 at 77,236; Travers v New South Wales [2000] FCA 1565 at [17]. A broad and liberal approach to that question of fact is authorised by the authorities: Catholic Education Office v Clarke (2004) 138 FCR 121 and Hurst v Queensland (2006) FCR 562 at 580 [106], 585 [134]. The relevant question is not whether the applicant can technically or physically comply with the relevant requirement or condition but whether he would suffer serious disadvantage in so complying.
In considering whether an aggrieved person is able to comply with the relevant requirement or condition, it is also relevant to consider whether he or she can comply reasonably, practically and with dignity: Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 at [9) and [81] and Travers v New South Wales [2001] FMCA 18.
Mr Ryan submitted that it is readily apparent that persons who do not have disabilities such as those possessed by him are more easily able to satisfy requirements I have found were imposed upon him. The respondent accepted that proposition. In my view, it follows that the inability of people with disabilities such as those possessed by Mr Ryan to comply with such requirements will have an adverse impact on them because they are not as easily able to satisfy those requirements.
The evidence from Mr Ryan that I have recounted above demonstrates that his inability to meet those requirements had a detrimental impact on him. I accept Mr Ryan’s argument that each of the requirements or conditions in question are more easily satisfied by people who do not have poor sight. More particularly, people who are not legally blind are able to see:
(a)the raised features within the building such as seats, buildings columns and bollards;
(b)the words and maps on the signs (although some might have difficulty because the text is so small and the maps located so close to the floor surface);
(c)spatial context within the building;
(d)walls and floors, corridors and building columns within walkways;
(e)signs and approach them to read the content;
(f)the touch screen terminals within the public areas of the Hospital; and
(g)a volunteer and whether a person observed is in fact a volunteer.
I accept Mr Ryan’s submission that he was unable to comply with the requirements or conditions because his vision was such that he could not do so. He had very little usable vision. I accept that he could not see raised features in his path in or out of the building such as the bollards in the Emergency Vehicle Only Set Down Area or within the Hospital such as seats and buildings columns. I accept that he could not read the words and maps on the signs, because they are not designed in a touch readable format. At times, his vision was disabled by glare from the floor or hard shiny surfaces. I accept that by reason of his vision impairment and the lack of luminance contrast he could not see walls and floors, corridors and building columns within walkways. He could not develop any spatial context within the building. Nor could he see where signs were located, particularly where they are not within a shoreline. He could not use touch screen terminals. He could not always see or identify that a volunteer was in fact a volunteer.
The respondent argues that on his own evidence, Mr Ryan was able to access the services provided by the respondent. He was able to attend his appointments and receive his treatment. He was able to call upon the assistance of volunteers and staff members. However, those matters pay no attention to the difficulties encountered by Mr Ryan when attending at the Hospital. Whilst it might be the case that he was able to overcome the disadvantages presented by the requirements imposed upon him by the respondent and he was still able to receive his treatment that does not mean that the disadvantages were not present nor serious.
In my view, Mr Ryan was at a serious disadvantage because of the requirements imposed upon him by the respondent that I have identified above. He was in a position where he was required to navigate access to the Hospital so as to arrive safely into the Hospital building and then navigate within the building without the assistance of effective or sufficient raised tactile signage or an effective method of wayfinding. Mr Ryan gave evidence of how these requirements impacted upon him – becoming disorientated and not being able to reorientate himself, being unable to find a bathroom when he needed one and having to rely on strangers in circumstances where he was unable to tell whether a person was a volunteer at the Hospital, a staff member or someone else. I accept his evidence about the effects of the respondent’s requirements upon him in his efforts to access and obtain treatment at the Hospital. Without direct assistance I am satisfied that Mr Ryan could not reasonably, practically and with dignity comply with the respondents requirements.
Conclusion - Disparate impact of the requirements or conditions
I find that because of Mr Ryan’s vision impairment, he could not and was not able to comply with the requirements and conditions I have identified above. Further, I find that in the requirements and conditions I have identified above had the effect of seriously disadvantaging Mr Ryan and any other persons with his disability or impairment.
Reasonableness
If a requirement or condition on which a person is prepared to allow another person access to, or the use of, any premises or any goods, services or facilities, is reasonable, having regard to the circumstances of the case, there will be no discrimination and no contravention of the Disability Discrimination Act: s.6(3) of the Act. In the present case, the burden of proving that the requirements and conditions I have identified above are reasonable lies on the respondent.
There is no controversy between the parties about the principles to be applied here. The test of reasonableness is an objective one and the Court must 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) 23 FCR 251 at 263; Waters v Public Transport Corporation (1991) 173 CLR per at 395-396, 383; Catholic Education Office v Clarke (2004) 138 FCR 121 at 145-146. Because the test is an objective one, the subjective factors of the aggrieved person are not determinative, although they may be relevant in assessing whether the requirement or condition is unreasonable. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. 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. What is necessary is a weighing of all of relevant factors in the case and, not surprisingly, these may differ according to the circumstances of each case.
It is necessary to record again here that the respondent accepted that its imposition of the first identified requirement concerning access to the hospital was unreasonable. I need not address this aspect of the matter further. The following discussion relates to the remaining two requirements I have identified above.
The onus is upon the respondent to establish reasonableness. The respondent submits that this requirement that Mr Ryan navigate the interior of the Hospital without raised tactile or Braille signage is reasonable in all the circumstances including the following:
(a)the Hospital is accessed by a large volume of people with a variety of physical and psychological attributes;
(b)people are able to access the services and facilities of the Hospital by the use of volunteers and staff to assist them;
(c)the use of the volunteer system allows for a variety of different needs and attributes to be accommodated in relation to access to services;
(d)the wayfinding signage and other aspects of the Hospital, such as entrances and glazed walls adjacent to accessways and pedestrian spaces, lift lobbies and glass balustrading meet the requirements of the Access Standards and other applicable Australian Standards. The respondent submitted that standards developed by technical experts in building, design and construction such as the Building Code of Australia and the Australian Standards are relevant and persuasive in determining whether or not a requirement or condition is reasonable;
(e)the subjective preference of Mr Ryan to be able to access services and facilities independently and without such assistance does not make the requirement or condition unreasonable;
(f)the provision of volunteers alleviates the need for tactile and braille signage to be provided in a building that is complex by its very nature; and
(g)the implementation of tactile and braille signage on all directional signs throughout the Hospital and the replacement of floors and other surfaces as contended for by Mr Ryan would likely come at a significant cost.
Mr Ryan submitted that the imposition of the requirements in the present case is unreasonable because:
(a)he was excluded from using the Hospital with safety and dignity because of his disability and he was unable to access them on the same terms as people who do not have his disability; and
(b)no person should be excluded from using the Hospital with safety and dignity and on the same terms as people who do not have his disability unless there is good reason, and there is no such good reason demonstrated by the evidence in this case.
He further submitted that the following circumstances should be taken into account when determining whether the imposition of such requirements or conditions are not reasonable:
(a)the Hospital is a public building;
(a)the Hospital is available for use by all members of the public on equal terms;
(b)the building and maintenance of the Hospital is significant, both in terms of the time and effort required and the expenditure required and notably:
(i)the building of the Hospital involved the expenditure of $1.8 billion; and
(ii)the Hospital costs $72 million per annum to maintain;
(c)the Hospital has a life of at least 25 years;
(d)the Hospital services a significant number of patients;
(e)it had some 37,307 patients attending during the September 2019 quarter;
(f)according to Mr Sanderson’s evidence , there “are also many visitors to the hospital in addition to those patients”;
(g)the respondent was aware of its obligations relating to access by users of the building and facilities. For example, Mr Sanderson acknowledged in his evidence that the following were applicable in the construction of the Hospital:
(i)the QH Wayfinding Guidelines;
(ii)the Disability Discrimination Act 1992 (Cth);
(iii)Australian Standard 1428 - Design for Access and Mobility;
(iv)Australasian Health Facility Guidelines;
(v)the Building Code of Australia;
(vi)the Access Standards; and
(vii)the Wayfinding and Signage Guidelines for Emergency Departments, Victorian Department of Human Services, 2009;
(h)the people attending the Hospital exhibit a wide range of physical and psychological attributes and conditions;
(i)access issues are even more important for this particular Hospital than some others because, among other things:
(i)while Queensland’s population of over 65s represents 12.6% of the State’s population, the over 65s population in the Hospital’s catchment represents 17% of the overall population;
(ii)the percentage of visitors with chronic health issues is higher than the national average;
(iii)the percentage of patients with access and mobility issues, as well as visual impairment, is higher than the national average; and
(iv)reflecting the Sunshine Coast’s status as a major holiday destination, the Hospital’s catchment include a large transitory, new and visiting population, unfamiliar with the area and its services;
(j)the Hospital was warned of some of the inadequacies in its work during the construction phase;
(k)Mr Ryan regularly attends medical appointments at the Hospital;
(l)the effects of these defects in the Hospital on people with disabilities can be significant. The evidence from Mr Ryan about the effects upon him of the deficiencies in signage and wayfinding was most poignant;
(m)improvements in these access issues at the Hospital will benefit more than people with vision impairments. As Mr Ryan’s submissions point out, Dr Galbraith gave evidence to this effect:
Okay. And there are some people that may very well be able to navigate this premises without causing themselves an injury or without being unsafe, and it really depends on things like their usable vision. Would you agree with that? --- Partly, although many of these features benefit other users as well who don’t identify with vision impairment. So, for example, someone who is, say, distracted, may be bringing in children or an elderly relative, they may not notice glazing that doesn’t have contrast marking and so they would be more at risk of injury, for example. The use of TGSIs, again, is really useful to help people who may be distracted or unfamiliar in an environment. So many of these features are certainly of- of benefit, great benefit, to people with a vision impairment, but they also serve other members of our community and- and particularly in a hospital environment, which is a complex, large space where people are often, perhaps, feeling a bit more anxious than normal. All of these warnings and clues all help people to find their way around and move around safely. So there will always be people for whom these features make minimal difference but for others in the community they make a substantial difference.
Okay. So it’s the case that the absence of some of these features you’ve identified might impact upon a broad variety of people, including people with no vision impairment. Is that what you’re saying?---Look, certainly something like contrast marking on glazing, that is a safety feature that’s intended for other members of the community, so not just people with vision impairment, it - it’s far more important. So I think it’s fair to single out people with vision impairment as the primary beneficiaries but, like all feature of design, there are often other beneficiaries too.
... ... (T)he substantive majority of people with a vison impairment would struggle to independently navigate the premises and - and that’s partly because either the absence of features, the inconsistency of the features and - and a sort of a whole range of other issues, as presented in my photographic evidence - signage which is too small, too high, too low, lack of tactile. It’s - it’s a whole range of - it’s a whole range of features. So, although some things are provided, often it’s done in gaps and it’s the gaps that create a lot of the problem as well as the absence.
(n)the respondent has already carried out some of the work necessary to rectify some of the issues. For example, Mr Sanderson gave evidence that:
There has been works undertaken to clarify the - and attempt to specify the changes that - or enhancements that she has proposed But we’ve only, just in the last fortnight, been able to finalise a level of specification that would be sufficient to create another minor works request. There has been a number of discussions between the parties to get us to this point.
So work has been - already been done in relation to raising another minor works request? Is that what you’re saying?---Work has been undertaken to prepare all the necessary specifications if that’s what was - that was the decision.
Mr Sanderson also gave evidence that when the Hospital was being planned the “goal for access and circulation is to achieve universal accessibility” and this goal was to be achieved by, among others, “meeting (or exceeding) all requirements for disability access, including those required by the BCA, the DDA, and other codes and legislation”. In an effort to achieve those goals, Mr Sanderson’s evidence was that, “A range of sign types are provided as Braille and tactile information in conformance with legislation. These include directions to accessible pathways and directions to and identification of accessible toilet facilities and level directories at lift banks”. Mr Ryan’s case was that those efforts did not go far enough.
I do not accept the respondent’s argument that because the Hospital is accessed by a large number of people with a variety of physical and psychological attributes, the absence of raised tactile or Braille signage generally is reasonable (if that is the argument that sought to be made). All that means, in my view, is that the respondent should be especially attuned to the requirements of those who are likely to attend the Hospital and access its services. There is no suggestion that the provision of raised tactile and/or Braille signage, or a wayfinding system that did not rely upon the use of volunteers as heavily as the current system appears to do, would detract from the services available to any other hospital user or impact upon them in any negative way.
A significant issue between the parties is whether the provision of volunteers means that the imposition of the requirements at issue was reasonable. The evidence about the presence of volunteers at the Hospital given by Mr Sanderson was that volunteers are rostered in the general facility on the Ground Floor, Level 1 and Level 4 Monday to Friday from 7:00am to 4:30pm. They are rostered in Emergency seven days a week from 7:00am to 7:00pm and in Radiation Monday to Friday from 7:00am to 8:00pm.
Ms Flores gave evidence that “it is our understanding Mr Ryan is accompanied by a carer, so this should not be an issue for him as he is not alone”. Consistently with that observation, the respondent argues that the real issue for Mr Ryan in relation to the use of volunteers and staff seems to be his preference to be able to access the Hospital independently. However, in my view, that does Mr Ryan’s evidence a disservice. Whilst it is true that Mr Ryan expressed a clear preference to be independent and to not have to rely upon volunteers, staff and others for assistance, his issue with the volunteers was that first, they were not always available because sometimes he was at the Hospital at all hours and he was able to give examples of when they had not been available to him; second he could not always tell who was a volunteer and who was not and that left him feeling vulnerable and third even during regular hours, volunteer stations were not always attended or were not present at all in some of the areas of the Hospital that he was required to visit.

The respondent argues that Mr Ryan did not establish on the evidence that he had not been able to access the services or facilities of the Hospital such that he had been severely disadvantaged. He has made it to his appointments and received treatment at the clinics he is required to attend. It was argued that his current difficulties appear to relate to the use of his wheelchair and his ability to push himself around which is not related to the issue of whether signs ought to have braille and tactile information on them. However, I reject that argument because it unnecessarily identifies an inability or failure to obtain treatment or other services as the only severe disadvantage to Mr Ryan by reason of the imposition of the relevant requirement. The argument misses the point that simply getting around the Hospital was fraught for Mr Ryan if he was on his own. When he became disorientated there was no way for him to regain his orientation unless he was assisted by someone. According to his evidence someone was not always available to assist him. Moreover, even though Mr Ryan had been able to access his treatment and the hospital’s services, sometimes that came at a cost to his dignity, at the very least. His evidence about not being able to find and access a bathroom when he needed to speaks volumes.
The respondent further argues that Mr Ryan has not established on the evidence that the group of persons with the relevant disability, that being vision impaired persons, would be disadvantaged by the relevant requirement or condition, that is, that they have suffered or are likely to suffer disadvantage due to reliance on volunteers, particularly in circumstances where within that group there are varying degrees of capabilities when it comes to sight and vision impairment and some of them will be able to use the wayfinding system in place. There are four difficulties with this argument. First, the argument is advanced on the basis that it is for Mr Ryan to establish on the evidence that he or a group of people with his vision impairment have suffered or are likely to suffer disadvantage due to reliance on volunteers. The onus is not on Mr Ryan to establish that. The onus is on the respondent to establish that the imposition of the requirement, in all the circumstances of the case, is reasonable. Second, the relevant requirement is not a requirement to rely upon volunteers. The requirement is as I have identified above and it is not to the point to identify disadvantage that might be suffered by Mr Ryan or members of the relevant group, “due to reliance on volunteers”; third, the argument presupposes that volunteers are always available and the evidence given by Mr Ryan demonstrates, they are not and fourth, even if volunteers are available and present at their station the evidence does not demonstrate that a person in Mr Ryan’s position who might become disorientated away from a volunteer station could then reorientate themselves and find a volunteer. Presumably they would rely upon a volunteer or staff member finding them.
The respondent also argues that, for some vision impaired persons, the provision of volunteers and the provision of the audible function in the lift and the large floor signage is likely to be sufficient for them to access the services and facilities of the Hospital. I accept that that is so. I accept that the provision of volunteers is an important way in which the respondent provides assistance to Hospital users that require such assistance. The use of volunteers carries with it significant flexibility such that the particular needs of particular Hospital users might be addressed. But volunteers and Hospital staff are any part of an effective wayfinding system. In her cross examination, Ms Flores agreed with the proposition that the use of volunteers and Hospital staff should only occur in conjunction with other aides such as TGSIs. That is to say, volunteers are simply one part of the picture.
I accept Mr Ryan’s argument that the use of volunteers places people who are legally blind in a very vulnerable position because they are unable to see or determine whether the person who claims to be a volunteer is in fact a volunteer or someone who, for example, may wish to ill-treat a blind person. Mr Ryan gave evidence of being deliberately misled by a person:
What do you mean you’ve been led up a blind alley?---Not in this particular hospital but another one.
Okay?---1 was ... to the lifts and somebody came along and pushed the button for me and sent me to the lower basement and - as a joke of course.
I’m very fortunate that I had my guide dog then and it wasn’t much of a problem. He could find the lift again.
Right?---But you don’t want to have that experience again.
The respondent argues that the wayfinding signage and other aspects of the Hospital, such as entrances and glazed walls adjacent to accessways and pedestrian spaces, lift lobbies and glass balustrading meet the requirements of the Access Standards and other applicable Australian Standards. The respondent submitted that standards developed by technical experts in building, design and construction such as the Building Code of Australia and the Australian Standards are relevant and persuasive in determining whether or not a requirement or condition is reasonable. I accept that is so. However, despite the respondent’s submissions, the evidence establishes that certain glazed walls adjacent to accessways and pedestrian spaces, lift lobbies and glass balustrading do not meet the requirements of the Access Standards.
The Minister for Disability services may, by legislative instrument, formulate standards, known as disability standards, in relation to any area in which it is unlawful under Part 2 of the Disability Discrimination Act for a person to discriminate against another person on the ground of a disability of the other person: s.31(1) of the Disability Discrimination Act. Section 32 of the Act makes it unlawful for a person to contravene a disability standard.
The Disability (Access to Premises – Buildings) Standards 2010 were made pursuant to s.3l(l). It is uncontentious that they applied at the time the Hospital was designed and constructed. It follows that it is unlawful for the Hospital to contravene the Access Standards. It is also uncontentious that the Access Standards apply to the respondent and to the Hospital.
According to the Access Standards, buildings and parts of buildings must be accessible as required by Table D3.1 unless exempted by cl.D3.4, which is not relevantly applicable.
Mr Ryan submitted that the respondent has contravened the three particular clauses of the Access Standards however, given the concessions made by the respondent, only one is now relevant. Clause D3.12 of the Access Standards requires glazing capable of being mistaken for a doorway or opening to be clearly marked. In particular, it provides:
Glazing on an accessway
On an accessway, where there is no chair rail, handrail or transom, all frameless or fully glazed doors, sidelights and any glazing capable of being mistaken for a doorway or opening must be clearly marked in accordance with AS 1428.1.
The evidence from Dr Galbraith and Mr Tolliday demonstrates that accessways and doorways at the Hospital are not marked appropriately so that they may be distinguished from glass that is not an accessway and in particular, the following areas are non-compliant:
(a)each of the glazed entrances to the Hospital;
(b)all glazed walls adjacent to accessways and pedestrian spaces;
(c)lift lobbies throughout the Hospital:
(i)the lift lobbies have full height glazing at the end of the lobby area; and
(ii)whilst there is railing within the glazed walls that assists with identifying these glazed walls, due to the highly polished walls and floors within the lift lobby area, identifying the end glass wall is very difficult for someone with low vision. Removing the glare from the lift lobby walls and floors would assist with identifying the end glazed wall; and
(d)all glazed balustrades within access ways and pedestrian spaces:
(i)the glass balustrading along the full length of the Level l gallery/accessway cannot be identified by someone with low vision for a number of reasons;
(ii)these are:
(A)when approaching at 90 degrees, the open void beyond the balustrade provides no background to measure contrast because people with low vision cannot usually see more than 2 - 3 metres distance. The contrast within the void is more than 3 metres in distance from the eye of someone with low vision when they approach this barrier;
(B)to be used as a reliable shoreline, the glass balustrade must first be approached at approximately 90 degrees, found, aligned with the required direction of travel and then used by a combination of holding the handrail and using it for guidance in combination with seeing the floor surface at the intersect with the glass barrier and for long cane users tapping the cane against the intersect of the balustrade and the floor to move along the length of the balustrade treatment; and
(C)the floor at the base of the balustrade has no contrast with the adjacent floor surface making it problematic for someone with low vision to determine the intersect between the horizontal and vertical surfaces, and the handrail is highly polished as is the floor which adds to the visual confusion of using this space for safe shorelining and reliable navigation through the entire Level l gallery space.
As I have indicated, the respondent accepts that:
(a)the design of visual indicators or glazing and glazed doors is not in compliance with the Access Standards in that the visual indicators are not solid and lack luminance contrast;
(b)the luminance contrast of the level 1 link entrance and the doors to the northern and southern entrances are not in compliance with the Access Standards; and
(c)the luminance contrast on the lift totems is not sufficient.
The respondent has agreed to work to rectify these issues in a way satisfactory to the applicant.
Conclusions - reasonableness
Having regard to the above matters, I am not satisfied that the respondent has established that the requirements that I have identified above are reasonable. I am not persuaded that the presence and use of volunteers is a reasonable response to the requirements that were imposed upon Mr Ryan and others with a similar impairment in the circumstances I have described above.
I accept the evidence of Dr Galbrath and Mr Tolliday about the remaining defective matters. I also accept Ms Flores evidence which, ultimately is not in conflict with that of Mr Tolliday in particular. As will be seen, Ms Flores agrees with a great many of the suggestions made by Mr Tolliday.
I have set out the nature and effect of the three requirements I have found were imposed upon Mr Ryan. I have set out below the rectification work that remains in issue and I have considered the evidence about it. To the extent that the respondent argues that the financial burden on it of accommodating the needs of Mr Ryan and others with his level of impairment through the rectification work that now remains in issue, there is no reliable evidence of the cost of that work. I am not satisfied that having regard to the building cost and the annual maintenance costs the rectification work set out hereunder, together with that agreed to be undertaken by the respondent will impose unjustifiable hardship upon the respondent. There is no evidence before me of its financial position.
RECTIFICATION
There is no dispute that the Court has power to make the type of orders sought by the applicant in these proceedings.
Leaving aside the work that the respondent agrees to undertake, Mr Ryan submitted that the further rectification work should be undertaken by the respondent. I will deal with each item of work and my determination in respect of it.
Before doing so it is necessary to record that all of the remaining issues are matters that Ms Flores, the expert called by the respondent, acknowledged are recommendations she made to the respondent “based on ... Australian Standards, relevant industry documentation and my professional opinion. These are recommended to meet the intent of the DDA”. Ms Flores also acknowledged that she arrived at these conclusions as a result of Mr Tolliday’s expressed views and the QH Wayfinding Guidelines which were not provided to her at the time she prepared her first report. She also acknowledged that the items were required by Australian Standards.
As to the forecourt, Mr Ryan submits the following rectification work should be undertaken in respect of two areas as follows:
(a)Paint the whole of all bollards black. In respect of this item, Ms Flores’s evidence was:
Bollards meet 30% when viewed from one direction only. To improve wayfinding for people who are blind or have vision impairment, AA recommends painting them all black will improve their contrast to the background surface.
(b)Refinish seats and columns so that at the intersect with the ground surface they achieve 30% luminance contrast, and treatment is to have a minimum depth or height of 200mm. In respect of this item Ms Flores’s evidence was:
To improve wayfinding for people who are blind or have vision impairment, AA recommends provide a 30% luminance contrast between abutting surfaces.
That is not surprising because AS1428 (1992), cl.27.1 provides:
27 STREET FURNITURE
27.1 General Street furniture, which includes objects such as seats, tables, drinking fountains, planter boxes, rubbish bins and the like, shall comply with the following:
Objects shall not protrude into an accessible path of travel. Seats shall be a minimum of 500 mm away from the path of travel.
Objects shall be of a colour which provides a contrast with their background and have a luminance factor of not less than 0.3 (30 percent).
NOTE: In pedestrian malls and similar places, all street furniture should be positioned on one side only of the accessible path of travel (see Figure 3)
The evidence of the respondent establishes that it is necessary to paint the whole of the bollards in the hospital forecourt black so as to improve wayfinding for people who are blind or who have vision impairment. It also establishes that a 30% luminance contrast between abutting surfaces is appropriate for the street furniture that might be present in the hospital forecourt. Given the requirements that I have identified above and my determination that those requirements are not reasonable in all of the circumstances, it is appropriate to make an order in respect of these two items.
As to signage, Mr Ryan submits the following rectification work should be undertaken as follows:
(a)replace all directory and directional signage (including reflective finish) within Lift Lobbies with raised tactile and Braille signage. Ensure all content within these signs is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading. Ensure the sign content, is accessible regarding lettering height, design, luminance contrast, graphics and Braille. Ensure the sign surface is matte in finish:
(i)This work is recommended by Ms Flores in her third report at 4.01.6:
Matt or low sheen finishes are preferred.
To improve wayfinding for people who are blind or have vision impairment, AA recommends that removal of reflective finish would improve reading of the directory for all users.
Consider providing the sign in Braille and tactile features mounted between 1200-1600mm AFFL.
See Supplementary Affidavit of Mr B Tolliday dated 28.02.2020.
(ii)I accept that this work is supported by the evidence;
(b)the black section of Free Standing Totem Signs should continue to the floor:
(i)This too is supported by Ms Flores in her third report at 4.01.5; and
(ii)I accept that this work is supported by the evidence;
(c)provide 30% luminance contrast between the letters/symbols and sign background colour:
(i)This too, is supported by Ms Flores in her third report at 4.01.8; and
(ii)I accept that this work is supported by the evidence;
(d)replace all directional signs which are currently floor mounted or wall mounted with raised tactile and Braille signs. Ensure all content within these signs is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading, and ensure the sign content is accessible regarding lettering height (min Cap Height= 15mm), design, luminance contrast, graphics and Braille:
(i)This rectification is recommended by Ms Flores in her third report at 4.01.1:
To improve wayfinding for people who are blind or have vision impairment, AA recommends that the hospital provide Braille & tactile signage.
(ii)I accept that this work is supported by the evidence;
(e)replace all Lift Totem signs with raised tactile and Braille signs. Ensure all content within these signs is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading, and ensure the sign content, including maps, are accessible regarding lettering height, design, luminance contrast, graphics and Braille:
(i)this rectification is supported by Ms Flores in her third report at 4.01.4:
To improve wayfinding for people who are blind or have vision impairment, AA recommends that the map be relocated and lettering lowered to 1200-1600mm AFFL provided in Braille and tactile.
See Supplementary Affidavit of Mr B Tolliday dated 28.02.2020.
(ii)I accept that this work is supported by the evidence;
(f)install Ward Identification signage to all Wards with raised tactile and Braille signage that is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading, and such sign content is to be accessible regarding lettering height, design, luminance contrast and Braille:
(i)this rectification is supported by Ms Flores in her third report at 4.01.10:
To improve wayfinding for people who are blind or have vision impairment, AA recommends that the hospital provide Braille & tactile signage at corridor intersections or entrances to provide direction to main destination points.
See Supplementary Affidavit of Mr B Tolliday dated 28.02.2020.
(ii)I accept that this recommendation sufficiently describes the provision of ward identification as a “major destination point”;
(g)install Room Identification signage with raised tactile and Braille signage that are at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading, and such sign content is to be accessible regarding lettering height, design, luminance contrast and Braille:
(i)I accept that this rectification is supported by Ms Flores’s evidence generally.
(h)install external directional signs within the public forecourt with a raised tactile and Braille sign, and ensure all content within this sign is at an accessible height (1200mm to 1600mm AFFL) to allow for touch reading, and such sign content (including maps) are to be accessible regarding lettering height, design, luminance contrast, graphics and Braille, and the map orientation is to be “heads up” to the required direction of travel:
(i)I accept that this rectification is supported by Ms Flores’s evidence generally;
(i)replace the stainless steel handrail on the Level 1 glass balustrade with a timber handrail:
(i)this rectification is recommended by Ms Flores in her third report at 2.01.2:
To improve wayfinding for people who are blind or have vision impairment, AA recommends a timber handrail would improve the visibility of the glass balustrade.
(ii)moreover, AS1428.2:1992, cl.10.1.2 provides:
10.1.2 Stairway handrails The installation of stairway handrails shall be in accordance with AS 1428.1 and with the following:
Wherever practicable the outside handrail shall be continuous throughout the stairflights and around landings (see Clause 10.1.l(c)).
The inside handrail shall always be continuous, and at landings shall maintain a height which is parallel to the finished floor (see Figure 6.
Where there is a background wall, handrails shall have a luminance contrast factor with the wall of not less than 0.3 (30 percent).
(iii)I accept that this work is supported by the evidence;
(j)paint walls and columns in all corridors where the walls and the floors do not have a minimum 30% luminance contrast so that the walls and columns achieve a 30% luminance contrast with the floor finish:
(i)this rectification is recommended by Ms Flores in her third report at 3.01.3:
To improve wayfinding for people who are blind or have vision impairment, AA recommends that a luminance contrast of 30% between the wall & floor, columns and floor, wall and/or floor and skirting boards be provided to assist with shorelining.
(ii)I accept that this work is supported by the evidence; and
(k)refinish all vinyl floor surface to remove polished surface finish and to return the surface back to its original matte finish:
(i)This rectification is recommended by Ms Flores in her third report at 3.01.5:
To improve wayfinding for people who are blind or have vision impairment, AA recommends SCHHS investigate how the glossiness of the surface can be reduced and/or if lights could be fitted with different types of diffusers.
Improving contrast between wall and floor and column and floor as discussed above will also assist with shorelining.
(ii)I accept that this work is supported by the evidence.
CONCLUSION

I am satisfied that Mr Ryan and others with a similar level of impairment, have been subject to indirect discrimination in access to the Hospital and in relation to the provision of goods and services by the Hospital in contravention of ss.23 and 24 Disability Discrimination Act. On the basis of the respondents concessions I also find that the respondent contravened certain aspects of the Access Standards in breach of s.32 of the Disability Discrimination Act.
Orders for rectification are appropriate. The parties should agree on a minute of orders that reflect these findings. There will be directions accordingly.

I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett dated 6 July, 2021.
Associate:
Dated: 6 July 2021
Annexure A – Work respondent acknowledges should be undertaken at the Hospital

As to the forecourt area of the hospital, the respondent shall:
(a)install 45% luminance contrast warning TGSIs along pedestrian path at same grade as vehicular roadways in Emergency Set Down Area;
(b)replace existing TGSIs to meet 45% luminance contrast against ground along Passenger Drop Off Area;
(c)replace TGSIs in the Passenger Drop Off Area with 45% luminance contrast directional TGSIs to 600mm;
(d)provide warning TGSIs and directional TGSIs from the bus station and the short term car park to the entrance of the Hospital;
(e)install 45% luminance contrast warning TGSIs and directional TGSIs to Main Entrance from the bus station and from the short term car park; and
(f)install warning TGSIs where pedestrian paths are at the same grade as vehicular roadways to the Emergency Set Down Area, set back 300+/-10mm from the roadway or, where provided, 300+/-l0mm from bollards.
As to entrances and glazing, the respondent shall:
(a)install new continuous visual indicator to glazing and glazed doors at Southern Entrance to meet 30% luminance contrast against floor;
(b)paint wall between the two doors at Level I Link Entrance to rectify internal luminance contrast between door frames and wall;
(c)install new vertical strip to Northern and Southern Entrance door frames to meet 30% luminance contrast and minimum width of 50mm between glazing and frame;
(d)install a new vertical strip to the automatic doors at the Level 1 Link Entrance to meet 30% luminance contrast and minimum width of 50mm on the leading edge of the door; and
(e)provide a solid, non-transparent, continuous visual indicator which provides minimum 30% luminance contrast when viewed against the floor surface within 2m of the glazing when viewed from either side of the doors/glazing.
As to signage at the Hospital, the respondent shall:
(a)continue Ground Floor and Level 1 Lift Totems black colour down to the floor to meet 30% luminance contrast against floor;
(b)replace direction signs between the two lift doors in lift lobby (Ground Floor to Level 5 - Purple and Orange Lifts) with new anti-glare acrylic panels to rectify the current reflective finish;
(c)amend Ground Floor and Level 1 Lift Totem information and map to rectify contrast of letters/symbols to meet 30% luminance contrast against floor;
(d)continue the black section of Lift and Directory Totem Signs to the floor;
(e)provide 30% luminance contrast between the letters/symbols and sign background colour in relation to the lift totems on the ground floor and level 1; and
(f)relocate grey couches on the Ground Level away from shorelines where they do not achieve a minimum 30% luminance contrast with the floor surface colour.

File number(s):	BRG 456 of 2019
Judgment of:	JUDGE JARRETT
Date of judgment:	6 July 2021
Catchwords:	HUMAN RIGHTS – discrimination legislation – grounds of discrimination – disability or impairment – access HUMAN RIGHTS – discrimination legislation – grounds of discrimination – disability or impairment – provision of goods and services
Legislation:	Australian Human Rights Commission Act 1986 (Cth), ss 46PH(1B)(b), 46PH(2) Disability Discrimination Act 1992 (Cth), ss 4, 6, 6(1), 6(2), 6(3), 23, 23(b), 23(c), 23(e), 24, 24(b), 24(c), 31, 31(1), 32 Disability (Access to Premises - Buildings) Standards 2010, cll. D3.4, D3.12
Cases cited:	Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 Catholic Education Office v Clarke (2004) 138 FCR 121 Clarke v Catholic Education Office (2003) 202 ALR 340 Daghlian v Australian Postal Corporation [2003] FCA 759 Hurst v Queensland (2006) FCR 562 Price v Civil Service Commission [1978] l All ER; Styles v Department of Foreign Affairs & Trade (1988) EOC 92-239 Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 Styles v Department of Foreign Affairs & Trade (1988) EOC 92-239 Travers v New South Wales [2000] FCA 1565 Travers v New South Wales [2001] FMCA 18 Waters v Public Transport Corporation (1991) 173 CLR
Number of paragraphs:	102
Date of last submission/s:	26 June 2020
Date of hearing:	26 June 2020
Place:	Brisbane
Counsel for the Applicant:	Mr O’Gorman SC
Solicitor for the Applicant:	Robert Bax & Associates
Counsel for the Respondent:	Mr Freeman
Solicitor for the Respondent:	Crown Law

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	6 JULY 2021