Yeo v Brisbane City Council - [2022] QCAT 344

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Yeo v Brisbane City Council [2022] QCAT 344

PARTIES:

Peter Yeo

(applicant)

v

Brisbane City Council

(respondent)

APPLICATION NO/S:

ADL 021-20

MATTER TYPE:

Anti-Discrimination matters

DELIVERED ON:

4 October 2022

HEARING DATE:

16, 17, 18 August 2021; 25 February 2022

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

1. The complaint is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – PROVISION OF GOODS AND SERVICES – where a claim for indirect discrimination on the basis of impairment was made –– where orders were sought requiring the installation of active restraint systems for wheelchairs in Brisbane City Council buses – whether a term is reasonable - whether unjustifiable hardship would be caused

Anti-Discrimination Act 1991 (Qld), s 5, s 11, s 51

Cocks v State of Queensland [1994] QADR 42

JM v QFG (1998) 1 Qd R 373

APPEARANCES & REPRESENTATION:

Applicant:

D. O’Gorman SC instructed by Robert Bax and Associates

Respondent:

C. Murdoch QC instructed by the Brisbane City Council

REASONS FOR DECISION

Mr Yeo is a C4/C5 high level complete quadriplegic, and has been so since 2002. He needs to use a motorised wheelchair for mobility.[1]
[1]Statement of Evidence of Peter Yeo, dated 17 December 2020, [3].
At about 11:15am on 18 December 2019 he tried to board a Brisbane City Council (BCC) bus from a stop in Edward Street, Brisbane. He was intending to travel to Chermside Shopping Centre via Albion (Route 320).[2]
[2]Ibid [5].
Before boarding the bus, he asked the driver whether the bus had any anchor points or hooks. In the absence of an affirmative reply, and in light of his concerns as to his safety, and after it being suggested to him by the driver that he should get a taxi to Chermside, he did not board the bus.[3]
[3]Ibid [6]-[9].
Mr Yeo subsequently lodged a complaint of unlawful discrimination by the BCC and the State of Queensland on the basis of ‘impairment’ with the Queensland Human Rights Commission. The complaint was referred to the Tribunal on 24 April 2020.
The proceedings initially named both the BCC and the State of Queensland as respondents, but an application to withdraw the referral against the State of Queensland was filed on 16 March 2021, and directions were given on 24 March 2021 that the proceeding against the State of Queensland was withdrawn.
I heard the matter by an oral hearing on 16, 17 and 18 August 2021. At the conclusion of the hearing, directions were given for the filing of written submissions, and a further oral hearing was held on 25 February 2022 as to the substantial written submissions.
These are my Reasons and Decision in relation to the complaint.
The issues
Mr Yeo alleges that the BCC has contravened Sections 9, 11, 45(1), 46 and/or 101 of the Anti-Discrimination Act 1991 (Qld) (the Act) as to unlawful indirect discrimination against him as a person with an impairment.
He is seeking orders as to the installation of active restraint systems in BCC buses, and also personal compensation.
The issue for determination in this matter is described in his submissions as whether[4] the BCC has breached and/or continues to breach the Act by refusing to install active wheelchair restraints (such as a four-point tiedown or wheelchair tiedown and occupant restraint systems) in BCC buses, so as to thereby minimise the chances of people who operate wheelchairs from sustaining injury as a result of the wheelchairs moving as a result of the movement of buses.
[4]Outline of submissions of the applicant, 17 September 2021, [2].
He further submits that, in that regard, the parties agree that the central issue is whether it has been ‘reasonable’ for the BCC to not have installed active restraints for mobility devices on its 1,257 buses.[5]
[5]Outline of submissions of the applicant, 17 September 2021, [2].
Mr Yeo submits that the BCC has imposed a term upon people wishing to access the BCC buses and/or wishing to access the bus services provided by it that:[6]
(a)people wishing to safely access the BCC buses and/or services must be able to do so without the assistance of restraints, and
(b)passengers must be able to use BCC buses without the assistance of restraints.
[6]Outline of submissions of the applicant filed 18 December 2020, [22].
The BCC agrees with that description of the term[7], but submits that the term is reasonable for the purposes of s.11(1)(c) of the Act[8], and that installation of restraints across the bus fleet as sought would impose an unjustifiable hardship under s 51 of the Act.[9]
[7]Outline of submissions of the first respondent filed 10 February 2021, [30].
[8]Ibid [34].
[9]Ibid [56].
The BCC notes in its submissions that its buses do not provide any form of active restraint system for any passengers, and notes that the allocated space for wheelchair use has an ‘ironing board’ backrest which is a passive restraint system.[10]
[10]Outline of submissions of the first respondent filed 10 February 2021, [9].
The BCC submits that whilst Mr Yeo refers to direct discrimination in his contentions, he has not pressed the case of direct discrimination in his outline of submissions, and proceeds on the basis that the direct discrimination claim has been abandoned.[11]
[11]Ibid [28].
The hearing was conducted on the basis of a claim by Mr Yeo of indirect discrimination resulting from the lack of active restraints for wheelchairs on BCC buses.
The Legislative Provisions
Indirect discrimination is defined in s 11 of the Act, which provides for consideration of reasonableness, as follows:
11. Meaning of indirect discrimination
(1)Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a)      with which a person with an attribute does not or is not able to comply; and
(b)      with which a higher proportion of people without the attribute comply or are able to comply; and
(c)      that is not reasonable.
(2)Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a)      the consequences of failure to comply with the term; and
(b)      the cost of alternative terms; and
(c)      the financial circumstances of the person who imposes, or proposes to impose, the term.
(3)It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4)In this section—
term includes condition, requirement or practice, whether or not written.
Example 1 -
An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.
Example 2 -
An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.
If special services or facilities are required, and whether the supply of those would impose unjustifiable hardship, is provided for in s 51 of the Act as follows:
51 Special services or facilities required
(1)It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if -
(a) the other person would require special services or facilities; and
(b) the supply of special services or facilities would impose unjustifiable hardship on the person supplying the goods or services.
(2)Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5.
The meaning of unjustifiable hardship is set out in s 5 of the Act as follows:
5. Meaning of unjustifiable hardship
Whether the supply of special services or facilities would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example –
a)       the nature of the special services or facilities; and
b)      the cost of supplying the special services or facilities and the number of people who would benefit or be disadvantaged; and
c)       the financial circumstances of the person; and
d)      the disruption that supplying the special services or facilities might cause; and
e)       the nature of any benefit or detriment to all people concerned.
Example of application in the work area (section 35) –
Company R refuses to employ A who uses a wheelchair because there is no appropriate access to the place of employment. R may only discriminate against A on the basis of impairment if supplying access would be very expensive or would impose a another significant hardship on R.
Evidence
Evidence was given for Mr Yeo at the hearing by:
(a)Mr Yeo
(b)Roger Sack – a Director of a company that supplies restraint equipment for wheelchairs.
Evidence was given for the BCC at the hearing by:
(a)Mr Kevin Cocks – the Executive General Manager Accessible Transport Networks with the Department of Transport and Main Roads, who is also a wheelchair user.
(b)Mr John Hatchman – the Fleet Engineer of the BCC bus fleet.
(c)Mr Karl Hain – the Manager Fleet, Engineering and Asset Management for the BCC’s bus transport assets.
(d)Professor Carolyn Unsworth – a Professor in Occupational Therapy at the School of Health, Federation University Australia, at Gippsland in Victoria.
The current provision for wheelchairs in BCC buses
The BCC operates an extensive bus service. These are described in its submissions as having the following features:[12]
(a)bus services are provided to an operating area of 619 square kilometres
(b)there are 445 bus routes
(c)there are 6,465 bus stops
(d)there are 2,300 bus drivers
(e)around 80 million passenger trips are made in a typical calendar year (pre-Covid – 19) via 3,062,283 bus services
(f)it operates some 1,257 buses,[13] comprised of 10 distinct bus models
(g)approximately 60 buses are retired and replaced each year
[12]Ibid (3)-(7).
[13]As at 27 January 2021 - Statement of John Hatchman filed on 10 February 2021, [5].
No seat belt or active restraint system is provided for any passenger on any of the buses.
Access for wheelchairs is provided on all BCC buses, which all have low floors and similar wheelchair/mobility scooter allocated space configuration, fit out and provision for access as follows:[14]
(a)a manually deployed flip out ramp at the front door weighted to 300 kg. The bus operator is responsible to deploy the ramp when needed and to assist the person using the mobility device to use the ramp if requested.
(b)there is a minimum access path width of 850mm from the front doorway to the allocated spaces
(c)there are two allocated spaces provided, one on the near side, and one on the wall side, which are located immediately rearwards of the front wheel boxes
(d)each space has an ‘ironing board’ backrest, which is a passive restraint system
(e)wheelchair users are required to face rearwards with the brake to be applied
[14]Ibid [8]
The risks for wheelchair users
Mr Sack described the risk for a person that was not restrained, who is involved in a car accident, as essentially becoming a ‘missile’. He said this occurred for the following reasons:[15]
8. This is due to the fact that the weight of an unrestrained weight has its static weight significantly increased at the time point of an accident occurring by the multiples of the g-force involved in the accident.
9. For example, an object weighing 100kgs can have its weight increased to a weight of approximately 1,000kgs in an accident that involves 10gs. In my experience, accidents involving 10g-forces are relatively common. A typical example is two cars having a head-on collision at 15kph in which case the cars have a change in relative velocity of 30kph which induces G-forces up to 10g on the motor vehicles, its occupants and everything inside the vehicles.
10. On this basis, a person in a wheelchair who is unrestrained in a vehicle can cause devastating consequences for him or herself and/or other passengers if they are unrestrained in the vehicle they are travelling in or on is involved in an accident.
[15]Statement of Roger Sack filed on 18 December 2020 [7] to [10]
Mr Sack also described the risk for a wheelchair user, that was not restrained, to tip sideways in certain circumstances:[16]
8. However, if a passenger is rearward facing and relying solely on the ironing board and the brakes on their wheelchair to restrain them, they will tip over and/or slide when G-forces introduce sufficient torque to create a rotational force about the vertical axis of the passenger in the wheelchair.
[16]Statement of Roger Sack dated 29 March 2021 [8]
It was put to Mr Sack in cross examination that it is not in every situation, for example, where a bus is turning, that the G-forces to which he referred would arise that the bus would have to go hard left, or take a hard right hand corner for that to occur, and that the rotational force was something which is caused or impacted upon by the driving style of the driver.[17]
[17]Transcript 1-68, line 7
Mr Sack accepted that the risk of a rotational force can be ameliorated by driving style and an appropriate acceleration.[18]
[18]Ibid line 44
Mr Yeo said that a bus has to go reasonably slowly around a roundabout, and that he had fallen over himself as a bus went around a roundabout.[19]
[19]Transcript 1– 21, line 38
Mr Cocks said that he had slid twice in a BCC bus when it had gone around a corner too fast:[20]
Coming from – along Gailey Road, where we turned – and I can’t remember the name of the street which a 417 takes – the bus driver – there’s four lanes. It’s – coming down that way. The – there was one particular bus driver who used to go around the corner too fast, and I slid twice. I spoke to him and said ‘look, you know, you’re putting me in a dangerous situation’ and from that time on, he took the corner slower. But I think that bus was, like, a – it’s not a large bus route.
[20]Transcript 2-29, line 11
Mr Hatchman discussed the nature of a tipping accident with specific reference to the use of inertia reel seatbelts, and described these as not high G-force incidents:[21]
There are some issues that you’d need to consider. One, as I explained before, in relation to lap/sash seat belts are normally operated with inertia reels. So, it depends on the type of incident you’re trying to mitigate the risk. For frontal impact, yes. It would probably be more effective. For a sideways tipping incident which is nearly all the incidents that we have recorded – all sideways tipping. The inertia reels’ ability to lock under that scenario is highly questionable, or reliably lock, and, hence, may become ineffective. You know, there’s a number of video clips on the Internet where you see mobility devices, in fact, using lap/sash seat belts that still tip sideways simply because the inertia reel does not lock, and when it doesn’t lock the belt pulls out, much the same as when you slowly pull a seatbelt in your car, it will not lock. Unfortunately, that’s the nature of tipping incidents, is they are not a high G-force incident. They occur quite slowly.
[21]Transcript 2-76, line 33
There have been well documented instances of serious injury, and death, caused by wheelchairs tilting and sliding in buses. The Coroner’s Court of Victoria considered the matter of Mr Wilks who died on 26 August 2017 as a result of injuries sustained in a fall on a bus.[22] The incident was described as follows:
1. John Edwin Wilks was a 76-year-old wheelchair user who lived in Mulgrave at the time of his death.
2. On 13 August 2017 Mr Wilks was riding the Route 813 Bus when it turned from Police Road onto Springvale Road. During this turn, Mr Wilks’ wheelchair tilted and fell onto its side.
3. Mr Wilks was injured in the fall and was admitted to the Monash Medical Centre that day. His condition deteriorated and he died on 26 August 2017.
[22]Coroners Court of Victoria, Court Reference: COR 2017 4263
The Coroner’s report notes that Mr Wilks was travelling in his motorised wheelchair, and positioned himself on the left side of the bus in a zone marked for disabled passengers. He was facing toward the front of the bus. A ‘grabrail’ ran along the wall of the bus near his left side. He told the driver that he knew how to block his wheels.[23] The incident was described as follows:[24]
16. (The driver) proceeded along Route 813 onto Police Road and towards Springvale Road. At 9.48am (the driver) made a left-hand turn onto Springvale Road, driving at around 26-27kph.
17. As the bus was turning, Mr Wilks’ wheelchair began to tilt to the right and he shouted about his wheelchair being unbalanced. (The driver) states that he slowed his turn after he heard Mr Wilks shouting. Mr Wilks’ chair continued to tilt until it fell over onto its side. Mr Wilks fell out of the wheelchair and onto the floor of the bus, striking the floor with the right side of his body.
18. Mr Wilks had not been holding onto the grab rail, which was near his paralysed left side.
[23]Ibid [13] to [15].
[24]Ibid [16] to [18].
Mr Wilks was admitted to hospital with rib fractures on his right side and a small right haemothorax. On 16 August 2017 he became acutely short of breath, and was diagnosed with pneumonia and respiratory failure, and was treated in the Intensive Care Unit for four days, but his condition deteriorated, and he developed worsening respiratory failure leading to his death.[25]
[25]Ibid [21] to [24].
The Coroner noted that the Chief Investigator had investigated an incident in December 2006 which had similarities to Mr Wilks’ injury. In that matter, a bus passenger was seated on a powered mobility scooter parked in an allocated space for such a vehicle in the bus, and was holding onto a grabrail to stabilise himself for much of his journey. At one point he released the grabrail and engaged in conversation with another passenger, and at this time the bus turned, and the passenger’s scooter fell onto its side. The passenger was injured but did not die.[26]
[26]Ibid [46] all.
Types of restraints
There are two types of restraints which are used in buses – active and passive restraints. Active restraints are devices that secure the wheelchair by means of restraints that attach to the wheelchair. Passive restraints are design features of the bus and wheelchair location that limit or prevent the movement of the wheelchair in the event of a collision or movement of the bus.
Mr Hatchman expressed the view that there were a number of different types of restraint systems that are available, and that they all have advantages and disadvantages.[27]
[27]Transcript 2-59, line 23.
In cross-examination, he described one of the disadvantages of active restraints as being that load is transferred to the wheelchair in the event of an accident:[28]
Q: You agree with me that a Q’Straint-type system stabilises a wheelchair within the bus, thereby preventing it from becoming a projectile in the event of an accident?
A; The QRT system and that type of system itself, if installed correctly, does prevent or most likely would prevent that in most circumstances. There are concerns that we’ve had with active restraint systems in that they have to be secured to the mobility device. In a – in an accident situation, loads are transferred from the person’s body mass and the body and the mass of the mobility device. Those loads are transferred through the frame of that mobility device and there’s a risk that the mobility device itself may fracture or fail as a result of that and create new risks that weren’t there prior to that restraint system being fitted, and this is one of the concerns we had in terms of active restraint systems.
[28]Transcript 2-59, line 33.

He expressed the BCC’s view that the system that is installed in the BCC’s fleet, which is a passive restraint system using a padded backboard known as an ‘ironing board’, is the safest way to travel, and is the industry accepted norm for that type of system.[29]
[29]Transcript 2-71, line 24.
The restraint systems proposed by Mr Yeo
Mr Yeo is seeking that a system of active restraints for wheelchairs be required to be provided on all BCC buses, and preferably one which allows wheelchair users to travel facing forwards.
Mr Yeo said that he uses a powered wheelchair which weighs approximately 165 kg, and that he weighs approximately 100 kg, so the combined weight was approximately 265 kg.[30]
[30]Transcript 1-22, line 32.
He said that he had been on a BCC bus in about 2005, but that he only went one stop, as he slid a little bit when the bus went round a corner, and he got off.[31]
[31]Transcript 1-23, line 45.
He said that he does not like having to back a wheelchair up to the ironing board, and travel backwards, as everyone stares at you and ‘your dignity goes down fast’, that he cannot see where he is going: and that he cannot contact the driver.[32]
[32]Transcript 1-24, line 15.
He said that he may consider a form of restraint that required him to travel backwards to be satisfactory, and to use that bus, but he doubted that very much, and described the absence of a restraint as the main problem.[33]
[33]Transcript 1–24, line 35.
Mr Yeo called as an expert witness, Mr Roger Sack, who described restraint systems that he is involved with, and which he proposes should be adopted on BCC buses.
Mr Sack is a director of a company called Tramanco which has operated since 1975, and has a division relating to the weighing of trucks and other vehicles, and another division relating to ‘paratransit’. The paratransit division involves ‘providing solutions for people with disability to maintain their mobility so that they can travel safely on vehicles such as trains, buses, aeroplanes, ferries, vans, etc’.[34]
[34]Statement of Roger Sack filed 18 December 2020, [2].
Mr Sack is not an engineer himself.[35] He stated that he has extensive experience in the area of wheelchair loaders and ramps and wheelchair tiedowns and occupant restraint systems, and that part of the work that his company has performed includes providing restraints for people with disabilities travelling on maxi-taxis, private vans, school buses, coaches, ferries and trains operating within the Brisbane region.[36]
[35]Transcript 1-32 Line 9.
[36]Statement of Roger Sack filed 18 December 2020, [3], [6].
He stated that in the course of operating the business he has become extremely familiar with a device called a Q’Straint, made by a company who are the world’s largest manufacturer of restraint systems. His company only supplies and installs those restraints, and has exclusively dealt with that company since around 1982.[37]
[37]Ibid [13].
A typical Q’Straint installation involves the provision of 4 floor anchorage fittings, one each side of the front end of the wheelchair, and two parallel to each other located just behind and inside the rear wheels, to which webbing tiedown retractors are attached. The webbing tiedowns are then attached to the wheelchair at forward and rear parts of the wheelchair frame. A lap/sash seat belt from the side of the vehicle across the wheelchair user which attaches to the far side of the wheelchair is provided.[38]
[38]As shown in a diagram on the installation instructions attached as RPS5 to the statement of Roger Sack (Ibid).
Once attached, the webbing restraints auto-retract. This means that as the vehicle moves and accelerates, the front retractors tighten, and the rear ones auto-retract to take out any slack, and auto-lock as they are specifically designed to do. This function also applies to the rear retractors when the bus decelerates. The lap/sash seatbelt works in the same way as an auto-retracting/adjusting belt does in any motor vehicle, and automatically locks in an accident.[39]
[39]Statement of Roger Sack dated 13 August 2021, [35].
The effect of the restraint system is that the wheelchair is held tightly in position by front and rear tiedowns on each side, and the seat belt secures the user. There are several variants of the Anchorage points, and of the webbing units.
The two Q’Straint systems that were most discussed in the course of the hearing were:
(a)The Q’Straint QRT series which is a 4-point tiedown system, with webbing straps, and floor anchors and bus seat belt. The kit comprises four fully adjustable, auto tensioning floor units (retractors) and a separate lap or sash seatbelt. It can be installed either rearward or forward facing.
The 4 retractors are self-contained units, and are clicked into a floor track which is required and which may be built into the floor flush with the floor surface, or be permanently mounted to sit on top of the floor surface.[40]
(b)The Q’Straint Q’UBE system which is a four–point tiedown system, with webbing straps and floor anchors and bus seatbelt.
Two of the retractors are built into a rectangular metal box which secures to the floor of the vehicle at the rear of the wheelchair location, and there are two separate permanently mounted retractors at the front of the wheelchair location.
This system removes the need for a track. The 4 tie-down points are permanently attached to the floor of the vehicle so the person attaching the restraint system doesn’t need to put these in place.[41]
[40]Report of Professor Unsworth, dated 6 July 2021, p.360 and 361 of the Bundle.
[41]Ibid, Bundle p 362.
There is also a fully automated system made by Q’Straint, known as the Quantum, which is a rear-facing securement system which has movable arms that locate beside the wheels of the wheelchair, and then move in and secure it firmly. A seatbelt is then secured. This is a significantly more expensive system.[42]
[42]Statement of Roger Sack filed 18 December 2020, [21].
Securement and release of restraints
Professor Unsworth described the physical actions required by the bus driver to secure and release the Q’Straint QRT Series as follows:[43]
[43]Bundle, p 364.
SECUREMENT:
1. Leave driver seat and secure cabin. Collect the 4 bolt-and-retractable webbing units from storage, and seatbelt system. Check all parts are functioning (no knots, tears, other damage).
2. Check person is in the correct location to attach the bolt-and-retractable webbing units, and for the bus seatbelt to be used.
3. Bend or kneel to the floor to secure the first bolt in place on the notch on the floor, and then pull the webbing out from tension-coiled position and attach the hook on the end of the webbing to the wheelchair or scooter.
Driver must identify where there is a suitable place to attach the hook on the mobility device (if attached too low, the system is ineffective). Many mobility scooters do not have a place where the hook can be attached.
4. Repeat this for the remaining 3 bolt-and-retractable webbing units. As at least one unit on the bus wall side will be difficult to access, this will require the driver to lean over or under the person in their mobility device to attach.
5. Determine which seatbelt will be used (lap, or lap and sash) and hook into place.
6. Reach over the person to grasp the insertion clip of the seatbelt.
7. Pull the retracted seatbelt out, across the person, and secure it to the seatbelt buckle located either on the floor, or low down on a vanity panel behind the person.
8. Return to cabin and seat and resume journey.
RELEASE:
1. Leave driver seat and secure cabin.
2. Bend or kneel to the floor, unclip first talk from mobility device and allow it to retract into the bolt unit, and remove bolt unit from the floor bolt hold.
Repeat for remaining 3 bolt-and-retractable webbing units.
As at least one unit on the bus wall side will be difficult to access, this will require the driver to lean over or under the person in their mobility device to release the hook.
3. Reach down to release the buckle of the seatbelt and reach over the person as it retracts to ensure it does not hit the person and retracts smoothly, and remove the unit from the connection point.
4. Stow the 4 bolt-and-retractable webbing units, and seatbelt system.
5. Return to cabin and seat and resume journey.
She described the physical actions required by the bus driver to secure and release the Q’Straint Q’UBE as follows:[44]
[44]Ibid, Bundle p 365-367.
SECUREMENT:
1. Leave driver’s seat and secure cabin.
2. Check person is in the correct location to attach the Q’UBE units, and for the bus seatbelt to be used.
3. The front securement straps are either permanently in place or need to be obtained from storage.
4. Bend or kneel and pull out one of the rear hooks from the tension-coiled unit located behind the person using the mobility device, and attached to the device. Many mobility scooters do not have a place where the hook can be attached.
5. Repeat this for the remaining tension-coiled unit with hooks behind the person.
Move red lever into lock position. As at least one unit on the bus wall side will be difficult to access, this will require the driver to lean over or under the person in their mobility device to attach.
6. Moved to the front of the mobility device and kneel or bend to either attach the 3rd webbing and hook unit and attach to the front of the mobility device, and complete for the 4th unit.
7. Reach over the person to grasp the insertion clip of the seatbelt located on the bus wall.
8. Pull the retracted seatbelt out, across the person, and secure it to the seatbelt buckle located low down on vanity panel behind the person.
9. Return to cabin and seat and resume journey.
RELEASE:
1. Leave driver’s seat and secure cabin.
2. Bend or kneel to the floor, release the red lock lever. Unclip each of the rear position hook and webbing units and allow to retract into place.
Move to the front of the mobility device and repeat for remaining 2 hook-and-retractable webbing units. As two units are on the bus wall side and will be difficult to access, this will require the driver to lean over or under the person in their mobility device to release the hook.
3. Reach down to release the buckle of the seatbelt and reach over the person as it retracts to ensure it does not hit the person and retracts smoothly into the wall socket.
4. Return to cabin and seat and resume journey.
She described the physical actions required by the bus driver to secure and release the Q’Straint Quantum as follows:[45]
[45]Report of Doctor Unsworth dated 9 February 2021, Bundle p. 346
SECUREMENT:
1.Bus driver remains in the driving seat and presses the ‘on’ button on the drivers control panel to power the Q’Straint Quantum.
2.Once a person in a mobility device is in position, if the person cannot reach the activation button, then the driver can do this from their control panel. The need for this assistance must be communicated before the person in the mobility device gets into position.
3.The driver may be required to remove any obstacles (passenger bags, or passengers) if they are in the way of the Q’Straint Quantum operating.
4.The driver may also be required to remove any bags or backpacks from the rear of the mobility device and give this to the occupant to hold, or place on the floor. This is because in order for the unit to operate, the back of the wheelchair or mobility device must connect with the back of the Q’Straint Quantum.
5.The driver then presses the button that locks the Q’Straint Quantum for transit.
6.However, if the person has not positioned their wheels parallel to the Q’Straint Quantum arms, then they will not lock into place. At this point, the bus driver may need to leave the driving seat to advise the person on straightening the mobility device to get into a better position to enable the mechanism to lock in place.
7.If a seatbelt is present, and the person in the mobility device cannot use it, the bus driver will be required to leave the driving seat and lean across the person to reach for the mechanism, pull it across the person and then bend to secure it into the buckle.
8.If the unit malfunctions, the bus driver will be required to crouch on the floor and manually operate the device to release the passenger in their mobility device.
9.Resume the journey.
RELEASE:
1.   If the person in the mobility device cannot release the seatbelt, the bus driver may be required to leave the driving seat and unbuckle for the person.
2.   If the person can complete this independently, then the driver can remain in the driving seat, power the device to on, then press the button to raise the arm mechanism if the person cannot do this for themselves.
3.   The driver can then press the button to turn off the Q’Straint Quantum.
4.   Resume the journey.
Cost of Restraints
Mr Sack said that in his experience the cost of a Q’Straint kit installed in a bus, with adequate underfloor reinforcing, including the cost of the Q’Straint, would be $1,500-$2,000.[46]
[46]Transcript 1-33, Line 10.
He said that installation involved drilling four holes in the bus floor, and if the bus has adequate reinforcing already, putting four bolts in, and that it takes less than an hour to fit it, if the floor will support the load.[47]
[47]Transcript 1-33, line 36.
He said that to ascertain which fittings would be used, one would need to ascertain the structure of the bus floor at each of the several places where it is to be installed, and said that the floor would either need additional reinforcing, or the reinforcing plate supplied would be sufficient.[48]
[48]Transcript 1-37, Line 6.
Mr Sack described a number of variants of restraint products, which varied in sophistication. He said that the prices range from $960 for a Q’Straint QRT system;[49] to $5,500 to $6,500 for a Q’UBE device;[50] to $35,000 per bus for a Quantum device.[51]
[49] Transcript 1-33, Line 21.
[50]Statement of Roger Sack, dated 29 March 2021, [11(c)].
[51]Ibid [11(b)].
Mr Hatchman disagreed with Mr Sack as to the cost of installation of the Q’Straint system, saying that it did not take into account the floor construction of a BCC bus:[52]
One of the first-or earlier statements made by Mr Sack was he indicated that the Q’Straint QRT system could be installed in a bus in a few hours-I think, was the words he used. I think that there is no way that you could safely install a restraint system in a bus floor in a few hours, considering that the flooring of the bus is made of plywood and is unsuitable for direct attachment of anchorage systems.
[52]Transcript 2-63, Line 40.
Mr Hatchman estimated that the bus modification cost to enable installation of a Q’Straint system would be $6,000 to $8,000 per bus and take in the order of one week per bus to complete.[53]
[53]Statement of John Hatchman dated 10 February 2021, [29] to [32].
His estimate was that to modify the sub-floor structure of a BCC bus and install a Q’Straint QRT system into two wheelchair bays was approximately 60 hours worth of work.[54]
[54]Transcript 2-64, line 16.
Time considerations
Professor Unsworth identified that the time taken to use the Q’Straint QRT floor bolt and webbing system was: Securement – approximately 2-5 minutes; and Release – approximately 2-4 minutes; making a total of approximately 4 to 9 minutes.[55]
[55]Professor Unsworth, Responses to questions concerning the use of mobility device restraints on public buses 9 February 2020, Table 2 (Bundle p.364).
She identified that the time taken to use the Q’Straint Q’UBE system was: Securement -–approximately 2-4 minutes; and Release – approximately 2-3 minutes; making a total of approximately 4 to 7 minutes.[56]
[56]Ibid, Bundle p.365.
Mr Sack said that he considered the time given by Professor Unsworth to attach and remove the restraints was overly excessive, and that it would be ‘four minutes tops’,[57] and that the drivers would become more familiar with the system.
[57]Transcript 1-58, Line 23.
Professor Unsworth commented on four surveys that she was aware of that have been conducted internationally since 2007 as to the attitude of bus users to delay caused by the attachment and removal of restraints:[58]
Transit time: all respondents think it’s okay to delay the journey by, on average between 5.30 minutes to 6.18 minutes for the securement and release of own mobility device. There were no differences overall for these views between Australian ambulant vs. Australian mobility device users, nor all Australians vs. all respondents from USA. However, there was a difference between frequency of bus use (all respondents) and time delay accepted; people who travel most frequently (5-7 days per week) indicated a mean time delay of 6.16 (minutes) was acceptable compared to people who travel less than 2 days per week indicating a mean time delay of 5.3 minutes as acceptable.
[58]Ibid, p.27 (Bundle p. 356).
The BCC had concerns as to the overall time taken by the process of engaging and disengaging restraints on the individual bus, as well as the cumulative effect upon the bus system:[59]
88. The time taken also presents a significant issue for the BCC as when added to the time taken to deploy the ramp for entry and exit, the bus may, overall, be delayed by over 10 minutes. Even if Mr Sack’s unrealistic times were used, the additional four minutes when added to the time taken to access the bus via the ramp and then access the accessible space and manoeuvre into position, and then depart, would be a delay to the bus of at least 7 minutes. The effect of this on some sample services is at Table 1 of Mr Hain’s statement. A 22% delay would be caused to a peak hour service.
89. This can result in ‘bus bunching’ where the bus in front is both increasingly late, and due to delay becomes crowded, with the bus behind being under-capacity and eventually catching and being stuck behind the bus in front. This impacts each subsequent service for those buses through the day. It also causes delay and disruption to multiple affected passengers. Mr. Hain’s evidence on these points was unchallenged. While it is accepted that some academic studies have indicated that a majority of passengers agree with a mobility device having a restraint, as Mr Cocks noted what people say in a survey can differ markedly to reality. Further, there is an obvious risk of delay causing anxiety to the mobility device user and thus a disinclination to use the bus service. The installation of a device that may actually inhibit bus use ought to be strongly rejected.
[59]Written submissions of the Brisbane City Council, dated 3 September 2021, [88]-[89].

The BCC attitude as to active restraints

The Brisbane City Council submits that the issue of restraints generally is under active consideration by it, but that no acceptable system of active restraints has yet been identified:[60]
27. Far from turning its face from the issue of installation of additional restraints, the matter has been, and continues to be, under active consideration. The difficulty is that an acceptable solution has not yet been found. In fact the issue is currently being considered in the context of a detailed and formal review of the Standards as described by Mr Cocks at paragraphs 16 to 28 and in KC-1. Therefore, the matter of additional restraints is currently being considered at a national level in the context of the modernised Standards, which may prescribe the form of restraint to be used as an active restraint, as well as via the work currently being undertaken by Professor Unsworth.
28. In these circumstances, it would be unreasonable and impracticable for the BCC to be required to install active restraints which may be otiose or at least inconsistent with the revised Standards, or with an effective passive restraint development arising from Professor Unsworth’s work.
[60]Respondent's submissions in reply, filed on 27 September 2021, [27] and [28].

It submits that it is concerned to improve accessibility generally, as evidenced by its approach to the new Metro buses to be introduced:[61]
36. The evidence that Mr Hain gave at paragraphs 43 to 45 in respect of the new Brisbane Metro buses demonstrates the BCC’s preparedness to improve accessibility, and to go beyond minimum standards including by providing three allocated spaces together with an additional aisle-side stanchion acting as a passive restraint to improve mobility device stability.
[61]Ibid [36].
BCC buses run a regular route, and fall into the category of ‘route-buses’, which are distinguished from long distance buses due to the types of roads they travel on, the speeds at which they travel, and the frequency of their journeys.
Mr Hatchman agreed that one of the arguments put forward as to why passengers don’t need to be restrained on a route bus is the lower impact of a standard route bus accident compared to a long-distance coach. He said that he could not tell what the average speed of an accident is, but could say that the average speed of the fleet is around 25 km an hour.[62]
[62]Transcript 2-82, line 9-20.
I asked Mr Henchman whether he expected that the BCC would be able and willing to adopt new guidelines as to restraints. He said that a definitive legislative framework that actually provides guidance is what the industry has been seeking:[63]
Q: Earlier Mr Cocks said that he hoped that there’d be some standards which would be established by a committee that is involved in by about February next year, about six months from now. If the conclusion there was that a form of restraint, whether passive or active, was required, from an engineering point of view, once you had the guidelines, you would then be able to come up with a range of options and select which was the best in terms of practicality and those sorts of considerations?
A: Yeah, absolutely. That – that’s one of the critical elements that is missing at the moment. There is no guideline. The DDA legislation is very vague and ambiguous and is open to interpretation. If there was an appropriate standard that defined the type of restraint system that is to be fitted, then I’m sure BCC would have absolutely no objection to fitting such a restraint system. I can’t speak for BCC whether they wished to retrofit such a system to the entire fleet, but certainly would – would expect that would then become a standard fitment in any year bus purchased, which is normally our process. When new legislation comes in we write that into our technical specifications and we go out to the market and asked that be – be provided for new vehicles. But as I sort of indicated before, it’s rare that this sort of legislation is retrospective and so that would be something BCC, obviously, would have to consider – the – the commercial applications, because that is the reality at the end of the day. I – I guess I’d like to add that is what the industry has been asking for, for a long, long time, is some definitive legislative framework that actually provides guidance in this area and currently just does not exist.
[63]Transcript 2-83, line 11.
Discussion
Both Mr Yeo and Mr Cocks are significant witnesses. Each is a wheelchair user and a disability advocate.
Mr Yeo has been motivated to bring these proceedings both for the purposes of his being able to more safely ride on a BCC bus, as well as for the benefit of other wheelchair users.
Mr Cocks has been the Executive General Manager Accessible Transport Networks, Department of Transport and Main Roads since April 2018. He was formerly the Anti-Discrimination Commissioner for Queensland from February 2011, and before that was a Director of Queensland Advocacy Incorporated.
Mr Cocks was the applicant in the landmark case of Cocks v State of Queensland [64] which considered the provision of disabled access by a lift adjacent to stairs leading to the new Brisbane Convention Centre.
[64][1974] QADT 3.
Both Mr Yeo and Mr Cocks expressed a reluctance to personally travel in a bus facing backwards, as they did not enjoy the experience, and found it embarrassing to have other people in the bus looking at them.
Mr Cocks expressed concern that, whilst many non-disabled passengers would say that they were in favour of restraints being fitted on BCC buses, if it transpired that this resulted in significant delays to bus trips due to drivers having to attach the restraints, that this may result in the public becoming opposed to the use of the restraints and resentful of wheelchair users on BCC buses.
There can be no question that improvements to route buses to provide for safer travel for wheelchair users is a desirable result. The risks to wheelchair users travelling unrestrained are well documented.
There is investigation by government industry bodies in various states of Australia, and on the federal level, which have been ongoing for about 20 years.
There is current research being undertaken, such as that by Professor Unsworth, both in Australia and overseas, as to passive restraint systems which would improve safety for wheelchair users. One example is the ‘trombone system’ (an extending trombone-shaped arm sliding forward to a position beside the wheelchair) described by Professor Unsworth, which is currently being investigated in conjunction with her research, and which would seem to be indicative of the possibility of a low cost and effective passive restraint system being developed.
Mr Henchman and Mr Hain described the awareness of the BCC as to these risks, and to the desirability of introducing new and safer systems for wheelchair users. They exhibited a practical willingness and readiness to institute any workable and approved improvement as soon as achievable.
The active restraint system proposed by Mr Yeo, such as the Q’Straint product, is a proven and effective system of wheelchair restraint. Its use in private vehicles, or taxis, is effective and achievable, as it involves interaction by the driver with only one or two users, and there is an easy ability to access the attachment points, and to take time to attach them properly. In a private situation, the driver would be attaching the same type of wheelchair repeatedly, and once a suitable routine was established, that could be repeated without great difficulty.
The situation is different when considering a route bus which involves a very large number of users, each of which has individual situations and individual equipment.
It is a problematic proposal for a BCC bus driver to have to leave the driver’s compartment, go to where the wheelchair user is situated, reach down to the floor level to attach the four restraint straps, and then lean across the body of the person to pull a lap belt over if required.
Mr Cocks expressed reservations as to a bus driver having to attach a restraint to a wheelchair:[65]
Q: And what would your attitude to (webbing loops) being used if they had to be applied to a wheelchair by the bus driver, or a bus driver?
A: Well, again, it – I think it comes down to where they are, and there’s not a lot of space in the allocated space as there is in a taxi. And again, there – I suspect the unions may have workplace health and safety issues as well as some of the passengers, particularly if they are female, may feel uncomfortable with a male or female bus driver having to bend across and be in physical contact with their body.
[65]Transcript 2-49.
Professor Unsworth described the multiple physical requirements of the bus driver to attach and release the Q’Straint QRT, and Q’UBE systems, in her report, as previously set out. Those requirements included leaving the cabin, collecting the retractor units if it was a QRT system, attaching and releasing the floor retractors (which involved bending or kneeling to the floor), and attaching and releasing the seatbelt (which involved reaching across the wheelchair user).
Mr Sack agreed that if restraints are installed, regardless of whether they are auto tensioned or physically tensioned, the bus driver still had to bend down and perform all the functions mentioned by Professor Unsworth in her report.[66]
[66]Transcript 1-58, line 12.
Such an operation would take significant time if repeated regularly, and an adverse response from other passengers may occur, as Mr Cocks has suggested.

Assessment of Reasonableness

Mr Yeo’s application relates to the adoption of active restraints.
Mr Yeo submits that ‘It appears that Mr Yeo and the BCC both agree that the real issue in this case is whether the imposition of the ‘term’ in question is ‘reasonable’.[67]
[67]Outline of submissions of the applicant, filed 17 September 2021, [46].
The issue in this application then becomes whether it is ‘reasonable’ for the BCC to have not installed active restraints.
The question of reasonableness requires a balancing of the various considerations, as noted in the submissions of Mr Yeo:
52. In JM v QFG[68] the Court of Appeal (Davies, Pincus & Thomas JA) held that the test of reasonableness was an objective one, requiring the weighing of the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the term on the other, and all the circumstances, including the factors outlined in s.11(2) of the ADA, were to be taken into account.
53. In Cocks v State of Queensland (No.1)[69] Atkinson P, in considering whether the ‘term’ in that case (the requirement that persons be able to use the front steps without assistance) was reasonable, considered the detrimental effects of including a lift in the front entrance of the Brisbane Convention Centre, and concluded that these effects were outweighed by the benefits to the mobility-impaired, a significant proportion of the Queensland population, and that the necessity of the mobility-impaired to use a side entrance, as a consequence of not being able to use the front entrance, was an additional reason why the ‘term’ was not reasonable, and therefore resulted in discrimination.
[68](1998) 1 Qd R 373.
[69][1994] QADR 42.
The balancing of factors was discussed by Justice Atkinson in Cocks as follows:
The nature of the benefit to those with mobility impairment must be weighed against the detriment to the respondent. The detriment to the respondent is the cost and the aesthetic effect of the installation of a lift. The benefit to the impaired is that they would feel welcomed into a major public building and would not be excluded in fact from the principal entrance used by others. It would enhance their rightful acceptance as members of the community with equal dignity and worth and thus further the objects of the Act. They would be able to access a major public building by the same entrance as the able-bodied. This is not an benefit to be given to some small group of people. It is estimated that some 315,400 people or 10.2% of the population of Queensland is unable to use steps because of impairment. The Centre is a building which will be used by a large cross-section of the public.
Professor Unsworth identified 15 factors that she considered should be considered when determining if an active or passive mobility device restraint system should be widely introduced in Australia:[70]
[70]Report of Professor Unsworth, Bundle p 352.
(a)Low evidence (research data) to support increased safety for mobility device users and all bus passengers if a restraint system is used.
(b)Low evidence of restraint systems preventing mobile devices slipping or tipping.
(c)Very low number of incidents reported (publicly available) that lead to injury or death nationally or internationally for mobility device users (or ambulant passengers) while travelling on buses.
(d)Human right for all people to travel on a fixed seat when in a bus.
(e)Occupational health and safety of bus drivers who are required to assist secure and release active restraint systems.
(f)Difficulty with bus drivers correctly securing mobility devices using 3-point and 4-point tiedown systems.
(g)Many mobility devices do not have anchor points for securement and are very difficult to determine how to secure using a tiedown system.
(h)Desire for independence among mobility device users.
(i)Restraint systems requiring active tiedown from bus drivers invade personal space of mobility device users.
(j)Mobility device users and ambulant bus users surveyed (2019) indicate that on average and increased dwell time of approx. 6 minutes combined is acceptable while a restraint system is secured (on boarding) and released (on exiting).
(k)Difficulty maintaining the function and cleanliness of active restraint systems.
(l)Potential trip risk of a restraint system for ambulant passengers.
(m)Cost for fitting or retrofitting buses with a restraint system.
(n)Need to ensure the structural integrity of the bus for any restraint systems fitted.
Incidence of Injuries
Mr Hain gave evidence that the BCC bus passenger number in 2018/2019 was a bit over 79 ½ million passengers. He said that there was no count of the number of those passengers who are using mobility devices.[71]
[71]Transcript 3-23, Line 15.
I asked Mr Hain if he was able to say from his knowledge what was the average number of incidents involving mobility devices users annually. He replied that he thought there were about 13 incidents for mobility device insurance claims over 2019/20; and that there was about 1 tipping incident happening about every one to two years:[72]
Member: Right. So from your knowledge, what’s the average number of incidents involving mobility device users annually?
A: Member, I –– I don’t – I actually don’t know that answer, but if I could answer – if I could answer it this way. So what I – so what I have done as a result of this is gone back and had a look through what our insurance claim history is and in particular focusing on mobility device claims for buses whilst in motion, and I was able to get that through our insurer to find out how many of those there were.
So over the past two years – so that was the ’19, ‘20 and 2021 years, so up until the start of this financial year, I believe – there were 13 incidents for insurance claims. The – that equates to about a one in 25 claim ratio for passenger claims for vehicles in motion.
So I don’t have all the details on each one of those. Some of those incidents was involved, you know, tipping because, you know, a driver has gone around a corner too fast, but some of those will involve – some of those involved, you know, emergency braking from a situation. Some of them – some of them could be, you know, they’ve damaged a device going on or off the vehicle.
So I don’t – I don’t under – I don’t have a detailed understanding of each of those incidents because a lot of them – a lot of those actually don’t even come through our incident management system. They’ll be claims that will come in post a trip by a customer. But what we do do is go through and review each of those incidents that – especially if there is a report of a tipping event, as I said, you know, this is – for me, what I’ve seen is one of these every 1 to 2 years.
They – obviously, they are very – they are sporadic of when they occur. Probably the key – the key contributing factor – there’s a few contributing factors. The contributing factors to those are a couple of things, where and how the devices position, how – if that person has been able to hold on or not hold on and then also – and probably the biggest thing from a driver perspective is that the driver driving safely for the road environment but hasn’t changed their behaviour for the passenger load environment.
So I think sort of large arcing roundabouts or something, so you could you know go through at 25/30 km an hour. They’re the – they have been the incidents that we have where the driver’s behaviour has – whilst technically so for the road, hasn’t been so for – for the load. They haven’t taken that into consideration. That has been a key contributing factor to those.
[72]Transcript 3-24, Line 5 to Line 34.
The low number of incidents involving wheelchairs, and particularly tipping incidents, may reflect the relatively low number of wheelchair users in comparison to the extremely large number of other users, or may reflect a reluctance by wheelchair users to use BCC buses in favour of more secure alternative forms of transport.

Cost

In Cocks, Justice Atkinson, in considering hardship, made specific reference to the relatively low cost of installation of alternatives to stairs at the convention centre to provide equal access:[73]
The special facility required is a lift or other device which will provide access with dignity to the front entrance of the Centre. The cost of installing a lift (without taking into account any delays which occurs) is between $276,963.00 and $298,000.00. This is quite a small amount in such a huge multi-million dollar project. No evidence was led by the respondent as to its financial circumstances and therefore I cannot assume that the State of Queensland would not be able to meet the cost. The possible disruption which might be caused was said by Mr Sparkman, the project manager, to be a possible delay of six weeks. However the evidence to support this was not convincing and I do not accept that such a delay is likely. Moreover the solution to this problem was in the hands of the respondent. It has known of the problem since March 1993 and could have taken steps to remedy it since that time without any delays to the project. In any event, I was informed that any such delay would not delay the opening of the Centre.
[73][1974] QADT 3
The cost of installing manual active restraint systems on every BCC bus would be a large amount of money whichever estimate of cost is considered. The cost of installing an automatic restraint system would be significantly greater.
The cost of supplying and installing restraints was variously estimated as:
(a)as low as $3,000 per bus as Mr Sack proposed, which multiplied by 1,257 buses would be a total cost of about $3.77 million; or
(b)up to $10,000 dollars per bus as Mr Hatchman surmised (being $6,000 to $8,000 per bus for modification, plus 2 tie-downs of $1,000 per set)), which multiplied by 1,257 buses would be a total cost of over $12.5 million;[74] or
(c)the highest case of the Q‘Straint Quantum system of approximately $35,000 per bus,[75] estimated by Mr. Sack, which would equate to almost $44 million.
[74]Statement of John Hatchman, filed 10 February 2021, [29-32]
[75]Statement of Roger Sack, [11(b)]
Mr Hain estimated the total value of the bus fleet (based on depreciation of a half value of what was purchased in outlay) as being somewhere in the vicinity of $500 million.[76]
[76]Transcript 3-26, line 30
The cost of an active restraint system as a percentage of the total value of the BCC bus fleet would therefore represent between 0.75% ($3.77m/$500m) on Mr Sack’ lowest estimate, up to 02.5% ($12.5m/$500m) on Mr Hatchman’s estimate for a manual system; and up to 8.8% ($44m/$500m) for an automatic system on Mr Sack’ estimate.
Mr Yeo submitted that the cost of installing active restraints on BCC buses must be assessed in the context that the buses cost between $500,000 and $800,000, and have a lifespan of up to 21 years, and described the cost of restraints as ‘insignificant in comparison’.[77]
[77]Outline of submissions of the applicant filed on 17 September 2021, [84].
Whilst I would not consider that the cost of installation of active restraints could properly be described as insignificant, I accept the general proposition that is submitted by Mr Yeo, that the cost of a manual active safety restraint system is not highly significant in context of the cost of the BCC buses themselves. The significantly higher cost of an automatic system could however be regarded as far more significant.

Time

The issue of the time taken by the driver to attach and release the restraints is a pertinent consideration, having regard to the increase in time that may be taken on a journey in attaching and releasing the restraints.
There is disagreement between Professor Unsworth and Mr Sack as to how long the attaching and releasing of restraints would take overall. Professor Unsworth says it would take 4 to 9 minutes in total, whereas Mr Sack says it would take 4 minutes at most.
The research referred to by Professor Unsworth indicates that bus passengers would consider it acceptable for a delay of about 5 to 6 minutes to be caused by the attaching and release of restraints.
Mr Cocks expressed concern that the dissatisfaction of other passengers by time delays could lead to animosity towards wheelchair users.
Mr Sack disagreed as to the time that would be taken in attaching and releasing restraints, and did not consider that the delay would be such as to cause dissatisfaction by other passengers.
The evidence of Professor Unsworth indicates that delays may cause dissatisfaction by other passengers after a time threshold have been reached, but would be acceptable below those thresholds.
The evidence for Mr Sack is that the delay of 4 minutes would not be outside the acceptable time threshold of 5 to 6 minutes. Such a delay would therefore be acceptable to other bus users.
The effect of the combined evidence of Mr Sack and Professor Unsworth is that if the time used for attaching and releasing restraints is less than 5 to 6 minutes, passengers would accept that, and there would not be an issue as to dissatisfaction.
The issue of passenger dissatisfaction therefore becomes one of significance only if the time used for attaching and releasing restraints routinely turns out to be between 5 to 6 minutes and 9 minutes.
The issue as to dissatisfaction caused by delays is related to the management of a restraint system, and would depend upon the actual delays that result routinely once a system had been implemented, and experience had as to its operation.
The time issues as to the use of a restraint system might be addressed by appropriate management, which might include training of bus drivers, and by public education as to the process and time involved in securing and releasing restraints.
The cumulative effect on the bus system of the time being taken in fitting and releasing restraints on individual buses, which might result in bus-bunching, as submitted by the BCC, was not investigated in detail in the course of the hearing, and poses a possible adverse result of the introduction of active restraints as proposed by Mr Yeo.

Practical and Functional issues

There are significant other considerations relating to practicality and functional issues, that impact on the issue as to whether it is reasonable for the BCC to be required to provide active restraint systems, having regard to the current state of technology and regulation.
Those significant considerations as follows:
(a)the practical difficulties of bus drivers having to attach restraints to a wide variety of wheelchairs, and the process involved in doing so.
(b)the technical issues as to how to attach restraints to the very wide variety of wheelchairs in a structurally safe way.
(c)the unknown state of maintenance and structural integrity of each wheelchair, and the risk of increased harm being caused to wheelchair users in the event that a failure of the restrained wheelchair occurred in an accident.
(d)the lack of legislative guidelines or regulation on a National or State basis as to the restraint of wheelchairs on route buses to provide a framework for the BCC to comply with.
An onus would be placed on the bus driver to properly attach the restraints to each of the many variants of wheelchair, which may be in varying states of repair. The attachment would involve a degree of technical prowess, and assessment of the construction and state of the wheelchair.
There was discussion of the possibility of wheelchair users having webbing loops attached to their wheelchairs, to which restraints could be attached. The BCC submitted that there were concerns with that proposal:[78]
The alternative of webbing loops brings in more problems than it solves. Four are required at a cost of $40 per set. They are attached permanently to the wheelchair. This additional cost and permanent modification could not be reasonably imposed on the mobility device user as a condition to use the active restraint fitted to the bus. There are also issues of whether they would otherwise be hazardous. Further, the BCC is still reliant on the user having the straps properly fitted and maintained.
[78]Written submissions of the Brisbane City Council dated 3 September 2021, [49].
The necessary intrusion of the driver into the personal space of the wheelchair user by reaching below the wheelchair to attach the restraints, and by leaning across the body of the user to attach a lap restraint, is likely to be an uncomfortable and unacceptable intrusion to the user, as identified by Mr Cocks.
The situation is different to that of a restraint system in a private vehicle, where the person making the attachment would most likely be a carer, relative, close associate, or regular driver of the user, who the wheelchair user is familiar and comfortable with; and who is fitting the same restraint to the same wheelchair, which has identified and appropriate attachment points, and has been equipped for quick, easy and safe attachment to the restraint repeatedly and frequently.
A fully automated system, such as the Q’Straint Quantum, would require very little time for the wheelchair user to locate themselves in, and require little, if any, involvement by the driver. Such a system would appear to have significant benefits, and overcome many of the issues that exist as to the driver having to fit restraints.
Mr Sack stated that with the Quantum system, the wheelchair user would push a button to activate the system, and could assist the driver in securing the lap belt, and be secured with safety.[79]
[79]Statement of Roger Sack filed 13 August 2021, [13].
Nevertheless, such fully automated systems do not appear to currently be in popular use in Australia. Mr Hatchman stated that such automated securement stations were problematic for the following reasons:[80]
(a)Extremely expensive for both new buses and to retrofit.
(b)Bulky and takes up lots of space/capacity when not being used by passengers.
(c)May not suit all mobility devices eg. 3 wheel devices such as scooters.
(d)May damage mobility devices as it relies on clamping force on wheels and other areas to restrain the mobility device from moving.
[80]Statement of John Hatchman filed 10 February 2021, [38].
The adoption of a fully automated system, such as the Quantum, was not strongly pressed in the course of the hearing. The significant cost of such a system; the lack of trials in Australia of them; the feasibility concerns such as those expressed by Mr Hatchman; and the remaining aspects as to involvement by the bus driver as noted by Professor Unsworth; mitigate against the adoption of such a system until those issues are addressed and abated by further trials, evaluation, and practical experience.
Mr Cocks said that he was involved in a report which was finalised in 1995, called Accessible Transport for All Australians, and that it was coming up for 30 years since that report was written.[81]
[81]Transcript 2-45, line 25.
He is the chair of the National Accessible Transport Task Force (NATT) which has representatives from the disability community, the Australian government, state and territory governments and industry and accessibility subject matter experts.[82]
[82]Affidavit of Kevin Cocks filed on 10 February 2021, [17-18].
He stated that the NATT has met since September 2019, and is working on modernising the transport standards, and the action and implementation timeframes for the NATT may lead to a draft bill to introduce revised transport standards to be prepared in 2023 by Commonwealth legislative drafters.[83]
[83]Ibid [28(d)].
He stated that he would be concerned if orders were made that the BCC be required to install active restraints, including the Q’Straint on its buses, preferring the reform approach of the NATT to run its course:[84]
43. I would be concerned if orders were made that the Brisbane City Council be required to install active restraints including the Q’Straint on its buses. The reform approach by the NATT is built on the guiding principle that solutions should meet the service needs of all stakeholders and be developed through co-design. For the reasons discussed above, I have real concerns that the Q’Straint does not meet the needs of all stakeholders, including the needs of all people travelling in mobility devices on buses. For public transport conveyances, the better approach, and the approach that is being taken by the NATT, is to identify a restraint system that presents a greater solution for a greater number of people. Identifying the best system requires research and development, testing and trialling and public consultation.
[84]Ibid, [43].

Conclusion

In making my determination as to the complaint under the Anti-Discrimination Act 1991 (Qld), I am required to have regard to the provisions of the Act, and to balance whether the benefits to persons with impairment are outweighed by the various considerations as to reasonableness and unjustifiable hardship.
Mr Yeo has proposed an active restraint system that in appropriate circumstances, such as in private vehicles, is clearly highly desirable.
The situation is different, and far more complex, in relation to the operation of the BCC bus system.
The issues of cost, delay, and potential dissatisfaction of other users, raise legitimate problems adverse to the introduction of the active restraint systems proposed by Mr Yeo.
Further, and significantly, the introduction of the proposed active restraint systems would impose a high level of involvement upon the driver; and would require the driver to leave their driving position and move into the body of the bus, and then to bend down, or get on the floor, to attach the restraints; and to come into the personal space of the passenger to attach the restraints and the seatbelt; and then to repeat those actions to release the restraints.
Those requirements on the bus driver would raise significant workplace health and safety, and liability, concerns.
There are unresolved engineering questions as to the difficulty of attaching restraints to a wide variety of wheelchairs of differing types, and the consequences of damage or failure of the restrained wheelchair to the user or to other bus passengers in the event of an impact.
The incidence of injuries identified as being caused by unrestrained wheelchairs moving or tipping on BCC buses is low, and no serious injuries were identified in the evidence.
It is significant that no State or National consensus has yet been arrived at, as to a safe and practical method of active restraint for use in route buses.
I am satisfied that the practical and functional problems and difficulties as to implementation of active restraint systems in BCC buses as proposed are real and significant, to the extent that they outweigh the benefits of their implementation.
Having regard to the difficulties and issues which I have discussed, I consider that:
(a)it is not reasonable for any of the proposed active restraint systems for wheelchairs to be required to be installed by the BCC on its buses at this time, and
(b)it would impose unjustifiable hardship for the BCC to have to provide an active restraint system as proposed at this time.
I find that:
(a)indirect discrimination is not established under Section 11(1) of the Act; and
(b)that even if indirect discrimination were established, that it would not be unlawful for the BCC to discriminate on the basis of impairment in respect to that matter, as the person would require special services or facilities, and the supply of such special services or facilities would impose unjustifiable hardship upon the BCC, pursuant to Section 51(b) of the Act.
As I have found that indirect discrimination is not established, no compensatory damages arise.
The complaint is dismissed.