SPRING 2021
Lifts
Stairway Platform Lifts Lift Standards RYAN v SCHHS: a life changing landmark decision Technical Insights: Consultancy Agreements, should you sign them? Specifying a lift: A supplier’s perspective Emergency Evacuation and Lifts in a Building
THE MAGAZINE FOR THE ASSOCIATION OF CONSULTANTS IN ACCESS AUSTRALIA
IN THIS ISSUE
ACAA COMMITTEE OF MANAGEMENT
From the President’s Desk.......................3
PRESIDENT: Lindsay Perry VICE PRESIDENT: Farah Madon
Congratulations from the Committee of Management...........................................4
SECRETARY: Anita Harrop ACAA State Access Consultants Network.................................................4
TREASURER: Howard Moutrie ORDINARY MEMBERS:
Becoming an ACAA Associate or Accredited member.................................5
John Moulang Lynda Wilem Francis Lenny
Stairway Platform Lifts.............................8
Richard Seidman
Lift Standards.......................................12
RYAN v SCHHS: a life changing landmark decision.................................16
Emergency Evacuation and Lifts in a Building.............................................34
Specifying a lift: A supplier’s perspective...........................................38
Address: 20 Maud Street, Geelong VIC 3220 Email:
admin@access.asn.au
Phone: +61 3 5221 2820
Technical Insights: Consultancy Agreements, should you sign them?........40
Web:
www.access.asn.au
Editor:
Anita Harrop aieditor@access.asn.au
Spring 2021 Issue Cover photo credit: iStockphoto
Hot apps and websites..........................45
Please email the Editor if you would like to showcase your project on the Cover of the next Access Insight
FROM THE PRESIDENT’S DESK by Lindsay Perry
President of the Association of Consultants in Access Australia
W
elcome to the Spring edition of Access Insight, our final one for this year, another tumultuous year for us on the east coast with Covid lockdowns and restrictions. Hopefully we are through the worst of it as we ramp up to the festive season which can also be challenging. We are looking at lifts in this issue – a critical aspect in the accessibility of buildings and a complex little topic. There are a range of different lifts available for different applications – a lift is not just a lift – and in this edition we explore some of the lifts available including stairway platform lifts and the elusive emergency evacuation lift. We also have an article on the progression of lift standard that provide an interesting background to the topic. A special mention goes out to Terry Osborn who has stepped down from his role as Administration Assistant for the ACAA. Terry, much of the success of the association can be attributed to you. As a founding member and long-standing secretary, words cannot convey how your contribution has shaped our little community. You have been the go-to person for members and committee alike and your patience and dedication will truly be missed. I personally wish you all the best for your next adventure and thank you profoundly for all you have done for the committee – reminders, follow-ups, technical support, and the list goes on. I will miss our regular chats and while the thought of an ACAA without you seems surreal, things change, and we will do our best to maintain the integrity and sincerity you have selflessly contributed over your many years with the association. Take care. Thank you to all our contributors for your time, effort and expertise. Thank you also to our regular contributors who continually offer us insights into technical matters and the latest technology. Enjoy this issue!
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ACAA MATTERS
Congratulations from the Committee of Management
ACAA State Access Consultants Networks
The ACAA Committee of Management congratulates the following members on upgrading to Accredited and Associate membership and welcomes our new Affiliate members. Congratulations all!
NEW SOUTH WALES
ACCREDITED MEMBERS • Ranjith L. Arachchige ASSOCIATE MEMBERS • Jazmyn Stol
• Sam Dikstein
Ngoc Autran John Robinson Barry Cotton Bruce Carr Tarekegn Chimdi
• • • • •
SOUTH AUSTRALIA
Contact: ACAA SA Chairperson Grant Wooller
QUEENSLAND
Contact: ACAA QLD Chairperson Angela Chambers
VICTORIA
AFFILIATE MEMBERS • • • • •
Contact: ACAA NSW Chairperson Robyn Thompson
Tas Kriaris Douglas Milne Charbel Gittany Geoffrey Kelly Felicity Mills
Contact: ACAA VIC Secretary Mr Paul Eltringham
WESTERN AUSTRALIA
Contact: ACAA WA Chairperson Anita Harrop
OUR 'HOT APPS & WEBSITES' SECTION IS EXPANDING!
DID YOU KNOW THAT ACAA ARE ON FACEBOOK AND LINKEDIN?
With our world being more and more digital-ready and reliant, we are expanding Hot Apps to include valuable websites, online resources and apps, access-related products and technology advancements or applications that support access for people with disability to the built and landscaped environment.
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CONNECT ON LINKEDIN @associationofconsultantsinaccessaustraliaacaa
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Next edition (Summer 2022) look out for… 'Trending Tech and Tools'
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THE MAGAZINE FOR THE ASSOCIATION OF CONSULTANTS IN ACCESS AUSTRALIA
@ acaaaus
ACAA MATTERS
Becoming an ACAA Associate or Accredited member ACCREDITED MEMBERSHIP The Association requires evidence of relevant qualifications and significant experience, continuing professional development training, and skills and knowledge pertaining to access to premises, before accepting an Applicant for accredited membership. Applicants for this class are required to have spent three years as an associate member of ACAA and be able to demonstrate active participation in the association’s CPD program prior to applying for accredited membership. A full Accreditation Checklist is available from our website. Only in extraordinary circumstances will consideration be given to an Applicant who is not already an ACAA Associate member. Accredited membership applicants must: • Have both a Proposer and Seconder (each of whom must hold ACAA Accredited membership) • Have a minimum of three Referees (A referee is a person who can substantiate the applicants work experience in access and vouch for their good character and proficiency.
• Participate in Continuing Professional Development throughout the associate membership period Demonstrated by attaining a minimum of 30 CPD points per year for the (minimum) three years that the person holds associate membership. (In order to maintain ongoing accredited membership class, 20 CPD points per year is required). • Provide evidence that they have been an ACAA Associate member for at least 3 years • Successfully complete an Accreditation Membership Test • Provide a detailed Curriculum Vitae (CV) that demonstrates the applicants experience in delivering access consulting services. • Provide three samples of Access Reports The reports must demonstrate a variety of projects, report styles and technical skills at different stages of the design process. • Applicants may be required to attend a panel interview (via Zoom or other virtual platform – likely 15-30 minutes) with representatives or nominated representatives of the ACAA Membership Committee. (continued next page)
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ACAA MATTERS ASSOCIATE MEMBERSHIP Associate membership Applicants must: • Be able to demonstrate that they are engaged in some way in access consulting • Have successfully completed the nationally recognised qualification of Certificate IV or Diploma in Access Consulting. • Have a qualification in a related field – for example architecture, building design, interior design, landscape design, occupational therapy, construction management, town planning, building surveying or the like (If the applicant does not have the required qualification in a related field or are relying on lived experience, they may apply for affiliate
membership and participate in the ACAA mentoring program for a minimum period of two (2) years in lieu of a qualification prior to applying for ACAA Associate level membership) • Provide a minimum of three Referees. (A referee is a person who can substantiate the applicants work experience in access and vouch for their good character and proficiency). • Provide a detailed Curriculum Vitae (CV) that outlines experience in access consulting. • Provide two samples of access reports to demonstrate your work experience undertaken in Australia over the last 1-2 years. Preferably, the report shall be prepared under the supervision of an ACAA accredited member.
More information about becoming an Accredited or Associate member of ACAA is available from our website. There are also other membership classes that can be applied for including Affiliate and Student categories. Membership with ACAA gives you access to a range of features including member discounts, access to our mentoring program and our social networking events.
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THE MAGAZINE FOR THE ASSOCIATION OF CONSULTANTS IN ACCESS AUSTRALIA
Spring 2021
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FEATURED ARTICLE
Stairway Platform Lifts by Hamish Murray
Hamish started work as a carpenter and joiner in 1980, proceeded to gain Building Foreman Clerk of Works, unrestricted Builders Contractor Licence and was a Site Supervisor for jobs up to $20 Million. Since returning to the workforce, after a workplace injury in 2002, he worked at Royal Rehab and Assistive Technology Australia. He currently works as the Universal Access Officer at the City of Parramatta. His experience together with his building knowledge has given him a broad understanding of the way people connect with the built environment. Hamish is an Associate member of the ACAA.
H
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i! Could you please ask the manager, after they have finished doing what they are doing, if they could come out here and give me permission to walk up the stairs, so I can spend money in your shop/have a meeting/ drop my child off or access my house?”. This is not inviting, not equitable and certainly not dignified. That is, however, the fact that presents itself time and time again for those who can’t manage stairs and must rely on the stairway platform lift as the only means provided when accessing a premise.
pedestrian entrance with no obvious attempt to include an alternative, more forgiving access method simply because it is too hard.
Don’t get me wrong, stairway platform lifts have their place within building access and can be a great asset to providing access to areas that were previously unachievable, especially an area with historical significance or within an existing building. But this is not a reasonable outcome with new construction!
NCC BCA provide 6 limitations on use, my basic interpretation summed up to 3 points are:
Let’s have a look at why I have these concerns. A new building in plan form is just lines on a page, you can always make changes. This may be an over simplification, and may get the architects offside somewhat, however, this is why we design before we build.
1. Don’t install them where there may be a crowd trying to get out all at once (i.e. in an evacuation).
NEW BUILDINGS
2. They should not be installed when a different type of lift or means of access could be used (i.e. a ramp).
Providing a stairway platform lift as a principal means of access into a new building is in my opinion not acceptable. All too often I have seen proposals, including childcare centres, that include stairway platform lifts at the principal
The big issue here that I see is point (2) above; for a new building a good designer can find a design that uses ramps in preference to a stair lift.
3. Not to be used to access more than two storeys.
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FEATURED ARTICLE From my experience, the following issues prevent good, equitable access being provided, however, solutions can be achieved if you are prepared to look for them:
lifts have a capacity between 225 and 300kg which would exclude a lot of users and nearly all that would require a second person to operate the controls.
a. Controls The majority of stairway platform lifts that I have come across are hold and run, in other words you must hold the button in for the lift to run. This function may not be achievable for a person with tetraplegia also known as quadriplegia. The movement of the lift can also be confusing for some people that have cognitive issues. Some users may also require a carer to facilitate the operation of the lift. This brings me to the next point which is load.
c. BCA BCA Table E3.6b provides the requirement for the stairway lift platform size minimum of 1200mm x 810mm. Controls for the platform lifts are usually located on the wall side of the lift therefore restricting the usage to the one side which some people may not be able to use. Some lifts have remotes or corded controls, again great, unless the person has dexterity issues, can they get to it, can they use it? d. Size We all understand that the platform to chair ratio can be useable if not somewhat snug. It is not only wheelchair users that may require the lift, for instance parents with prams. Have you seen the Zendo side by side double pram with side pouch, baby bag, under storage, drink and phone holder and additional skate platform for the youngest to stand on? Not to mention any additional children they have in tow, really, I’ve owned cars with smaller footprints. e. Usage With the responses you get when trying to use it you would think some stairway platform lifts represent some kind of vague electronic wall art.
The controls to activate this lift are on a column 5m away at a non-accessible height
b. Weight To understand weights required we must look at wheelchairs and understandably there isn’t an issue with manual chairs with some ultra-light chairs weighing less than 7kg. Powered wheelchairs can weigh significantly more, understanding there is a myriad of chairs all with their own weight and load limits which will inhibit the use of a stairway platform lift. Of the six powered wheelchairs I have owned have ranged between 150 -200kg unladen with a total weight capacity between 300-355 kg! Most stairway platform
It isn’t necessarily that the lifts can’t work, it can be a matter of not knowing if they work. Common responses have been: ° Not knowing how they work. ° It hasn’t worked for years. ° How do they turn it on? ° No one here knows how it works. ° That was from the old owner. ° Not knowing where the key is. ° They never gave us a key. ° The person with the key isn’t in today. ° We’ve asked maintenance to fix it. ° Have you tried ringing the number? ° All of the above Spring 2021
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FEATURED ARTICLE g. D uring a Flood I understand there are requirements when it comes to flood levels but what I can’t figure out is, if the lift is to get you out of the water so you can shelter ‘in place’? In which case shouldn’t the controls be accessible from the lower level? Or is the lift to get you into the water, in which case the controls at the top of the stairs make sense. It is worth noting, however, that water and powered wheelchairs are not friends. Either way, if the building is surrounded by 1100mm of water, we may be in a little bit of bother.
CONCLUSION Back to the first question. Yes, the cover is padlocked to the rail just in case it wanders off.
f. Covers ° We have a cover on it to protect it, so it’s good for you to use. ° The cover is to stop vandals getting to it
Would it be acceptable if you had to ask permission to walk up the stairs? Of course not! So why do we impose this on people with a disability? Why should we make them have to call a number, find a manager, or hope the stair lift works? This is not a equitable process when entering or leaving a building. The reliance on management to use these lifts is not acceptable and is exasperated by not only their proliferation, but their use instead of a simpler and user-friendly solution. We need to provide access for all, that is equitable, not reliant on other persons or technology and is easily replicated in new construction. When considering stair lifts, a man way smarter than myself once told me “a ramp won’t break down”.
As A User, How Do I Get the Dust Cover Off?
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THE MAGAZINE FOR THE ASSOCIATION OF CONSULTANTS IN ACCESS AUSTRALIA
Upcoming Courses November 2021 March 2022 Courses will be delivered live online via Zoom enquiries to: admin@accessinstitue.com.au CPP50711 Diploma of Access Consulting - 11 days 10, 11, 12, 15, 16 November and 1, 2, 3, 6, 7, 8 December 2021 16, 17, 18, 21, 22 February and 23, 24, 25, 28, 29, 30 March 2022
CPP50711 Diploma of Access Consulting Course for Occupational Therapists - 9 days 10, 11, 12, 15, 16 November and 1, 2, 3, 6 December 2021 16, 17, 18, 21, 22 February and 23, 24, 25, 28 March 2022
CPP50711 Diploma of Access Consulting - Course for Building Surveyors - 8 days 10, 11, 12, 15, 16 November and 6, 7, 8 December 2021 16, 17, 18, 21, 22 February and 28, 29, 30 March 2022
Accredited Specialist Disability Accommodation (SDA) Assessor Course 1/2 day 23 November 2021 (10.00am – 4.00pm)
Bridging Course for CPP50711 Diploma of Access Consulting - 3 days 6, 7, 8 December 2021 28, 29, 30 March 2022
CPPACC4005A Conduct a Building Access Audit Course - 2 days 13 & 14 December 2021 (10.00am - 4.30pm each day)
CPP40811 Certificate IV in Access Consulting - Course for Building Surveyors - 5 days 10, 11, 12, 15, 16 November 2021 16, 17, 18, 21, 22 February 2022
CPP40811 Certificate IV in Access Consulting - 8 days 10, 11, 12, 15, 16 November and 1, 2, 3 December 2021 16, 17, 18, 21, 22 February and 23, 24, 25 March 2022
Accredited Specialist Disability Accommodation (SDA) Assessor Course - 4.5 hours 3 November 2021 (12.30pm - 5.00pm) 9 December 2021 (12.30pm - 5.00pm)
Livable Housing Australia - Design Guideline Assessor Course - 2.5 hours 30 November 2021 (11.00am - 1.30pm)
Understanding Access Legislation and Universal Design in Buildings - 1 day 13 December 2021 (10.00am - 4.30pm)
Changing Places Assessor Course - 3 hours 28 February 2022 (1.00pm - 4.00pm)
More Universal Design and Access to the Built Environment - 1 hour CPD Sessions also coming in 2022
Go to www.accessinstitute.com.au to secure your place in any Course
www.accessinstitute.com.au
T: 03 9988 1979 info@accessinstitute.com.au RTO Provider Number 22404
FEATURED ARTICLE
Lift Standards by Mark Relf and Eric Martin ACAA representatives on the ME-004 Lift committee
A
s an observer of lift standards, the past 8 years have been similar to watching a train wreck in super slow motion waiting to happen. At last the first two trains have run off the accessibility tracks. Let us explain: in 2013 the Australian lift industry realised the first step in the globalization of lift standards by removing Australian Standard lift standards from the Building Code of Australia with modifications to table E3.6 by inserting a performance based descriptor to replace the referenced standards. • Stairway platform lift replaced the reference to AS 1735.7 • Inclined lift replaced the reference to AS 1735.8 • Low rise platform lift replaced the reference to AS 1735.14 • Low-rise, low-speed constant pressure lift replaced the reference to AS 1735.15 • Small sized, low-speed automatic lift replaced the reference to AS 1735.16 To the casual observer these changes seemed innocuous but belied what lay ahead as globalization meant adopting overseas standards regardless of the consistency with the requirements of the Australian Standards. In 2020 AS 1735.12 (1999) as we knew it was updated by adopting the European standard EN 81-70:2018 to become AS 1735.12:2020 Lifts, escalators and moving walks Part 12: Facilities for persons with disabilities (EN 81-70:2018, MOD). From an Australian perspective the important aspect is the “MOD” in the title, that refers to
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Appendices ZZ and ZA, which are normative modifications for Australian requirements. Like many European (EN CEN) and International (ISO) standards it is common for countries to adopt a national variation to suit local requirements, which is similar to state and territory variations to the National Construction Code (NCC). It should also be noted that the NCC and DDA Standards do not automatically reference the 2020 update of AS 1735.12. Importantly, Appendix ZZ Variations, paragraph 0.2 includes:
e) for Australian legal requirements, see the Disability (Access to Premises - Buildings) Standards 2010. A review of AS 1735.12:2020 will read as a confusing arrangement for Australia as the assumptions include several statements like;
National building regulations will not conflict with the provisions of this standard. Somewhat more confusing is the preface which includes;
This European Standard shall be given the status of a national standard, either by publication of an identical text or by endorsement, at the latest by November 2018, and conflicting national standards shall be withdrawn at the latest by May 2020. Ironically, neither the NCC or DDA Standards have reacted to this requirement, albeit this section is titled European Preface and is just a preface and Australia is not a listed country. It
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FEATURED ARTICLE
is anyone's guess where we may be if a trade agreement is struck between Australia and the European Union. A technical review of the main body of AS 1735.12:2020 provides further confusion for Australian readers on matters such as; • Lift types where table 3 lists five different types. • Door size • Handrail requirements. • Wheelchair classes A, B, C and no recognition of A80 and A90 occupied wheelchairs. • Control panels which includes numerous references to ISO 4190. • Extra large control devices, which is explained in Annex B. • An induction loop in the lift car in accordance with EN 60118-4:2015. • Touch screen devices for destination control systems. Thankfully appendix ZZ and the NCC resolve many of these issues. However, it is an ambiguous and clumsy manner to prepare a standard for potential referencing in the NCC and DDA Premises Standard. However, appendices ZZ and ZA do not resolve all of the accessibility issues as the Standards Australia lift committee has been more focussed on adopting EN 81-70 than making progressive enhancements to make lifts more accessible to people with disabilities, in particular people with vision impairment.
For people with vision impairment, luminance contrast of lift controls including touch screen controls remains problematic. Character outlines of numbers and control buttons is still a hairline 0.72mm to 1.8mm which are barely visible to people with ordinary vision and not visible at all to people with low vision. While Annex C of AS 1735.12: 2020 does contain requirements for touch screens on destination control lifts, there are a myriad of exceptions and additions from ordinary collective control lifts that make the task for access consultants and the end user even more difficult to determine compliance and usability. It is evident that touch screen accessibility for people with vision impairment shall remain inaccessible for some time before the lift industry is inclined to bother resolving the issue. Similarly, the standard fails to provide test methodology for insitu testing of luminance contrast of control panels, except for the suggestion in clause 5.1.2 and table 2 that a black and white photo be taken and then compared to a LRV scale to determine whether there is at least 30 points difference is achieved at a 45 degree angle or perpendicular viewing point as applicable. Obviously, this type of testing methodology is far removed from Australian practices. To add further dilemma for access consultants a note to clause 5.1.2 suggests that measuring shiny and reflective surfaces, that we often experience in lift cars, can reduce luminance contrast using this LRV method and we should be guided by ISO 21542: 2011, B.7.2. If you’re not confused by now then pick up your 2011, not 2020 or 2021, and a copy of ISO 21542 which articulates a host of alternative test methods and calculus. Some may consider this type of choice as convenient and appropriate in a world of performance solutions where prescription is infinitely evasive. ACAA proposals to conduct a survey with people with vision impairment regarding lift car
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FEATURED ARTICLE controls was loudly rejected by the lift industry in favour of a European study which was meant to conclude by the end of 2020, but alas no report yet and maybe another Covid 19 casualty.
Interestingly, the public comments submitted by ACAA were immediately ignored and the majority of the lift committee voted YES in the combined public comment and ballot process.
Surprisingly, appendix ZA for Australia, is devoted to wayfinding and includes a reference to AS 1428.4.2. Largely, the ZA appendix deals with identification rather than wayfinding with a tactile alpha identifier for lift cars A, B, C, etc and numeric identifier of floor levels on the frame of lift doors using numbering of floor levels -1 for B1, 0 for ground, 1, 2, 3 and / or G for ground, B for basement, C for concourse, M for mezzanine and so on.
The glaring standouts of interest and concern for access are:
In summary, it is difficult to determine any real improvement in adopting this standard and it appears that enhancement of clause 3.6 and inclusion of a specification E3.6 in the NCC and DDA Premises Standards can deliver greater benefits for end users, regulators and designers. The next chapter of interest for access consultants is the latest revision of AS1735.15 [2021] which adopts EN 81-41: 2010 MOD, an eleven year aged out of date standard, with the ridiculously long title of; Lifts, escalators and moving walks Part 15: Safety rules for the construction and installation of lifts – Special lift for the transport of persons and goods – Vertical lifting platforms intended for use by persons with impaired mobility (EN 81-41: 2010 MOD). Ironically, even this long title does not match the NCC definition in table E3.6 of Low-rise, low-speed constant pressure lift and it is not referenced in the DRAFT NCC 2022. Furthermore the Australian appendix ZZ makes no reference to the NCC or Disability (Access to Premises Buildings) Standards 2010. Therefore, it could be argued that the only way to utilize the contents of AS 1735.15 [2021] is within a performance solution. Again, the MOD in the title implies variations in Appendix ZZ for Australia. However, on this occasion the variations do not include any real accessibility matters which is mainly due to a ‘direct adoption’ of an EN standard, under rules and agreements between Australia and European body, cannot be altered and simultaneously permitted a combined public comment and ballot process. 14
• The standard articulates compliance will accommodate type A and B wheelchairs but not type C. There is no mention or recognition of A80 and A90 occupied wheelchairs. • Table 2 suggests 900 X 1400mm lift platforms for through cars and 1100 X 1400mm where the doors / gates are adjacent. • Control devices – Table 8 and clause 5.5.15.12 require hold and run constant pressure at 2-5 Newtons in a height range of 900-1200mm (preferably 1100mm) and 400mm minimum distance to a corner. • Control buttons shall be visually different from the background and have a colour contrast not luminance contrast. Other aspects of tactile requirements are specified. • Clause 5.8.2 permits 800mm clear opening width for lift doors/gates and an opening force of no more than 40 Newtons. • There is no requirement for level landings at lift doors/gates and no latchside clearances as previously required by AS1735.15. • Clause 5.8.4.6 permits a 10mm sill threshold height at the lift door/gate with a gap of up to 20mm. Sill threshold heights up to 50mm permit a 1:4 gradient, up to 75mm a 1:6 gradient, up to 100mm a 1:8 gradient and over 100mm with no apparent upper limit requires a 1:12 gradient ramps. • Threshold sill ramps require 900mm width with no mention of kerb guards or handrails. • Clause 7.3.1.5 specifies an International Symbol of Access that is different to AS1428.1. Clearly, this standard needs to be considered with extreme caution with a significant risk of DDA complaints. The departures from the previous version and the norms of AS1428.1 are of considerable concern for access consultants and individualised lift specification should be prepared to remove the high risk elements.
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FEATURED ARTICLE During the public consultation phase of NCC 2022 and the DDA Premises Standard, ACAA did submit a number of changes to Table E3.6 (b) in an endeavour to bridge the gap between an Australian Standard lacking in equitable access and the overall objectives of the DDA and NCC. ACAA’s submission to the ABCB an Premises Standards review recommended the following additions: Lifts that provide manually operated doors and gates must provide: • Doorway landing circulation spaces complying with AS1428.1; and • Landing areas with a slope complying with AS1428.1; • Sills that exceed 10mm or more in height difference to the landing must provide a 1:8 gradient threshold ramp with a maximum length of 280 mm; and • D-handles complying with AS1428.1; and • Force to open the door or gate must not exceed 20 Newtons. • Retractable protection screen under the lift car to avoid headroom hazards where the lift is un-enclosed. Lift and landing control buttons that require continuous pressure must provide: • Control buttons in a height range of 900 mm to 1100 mm above the lift floor and 500 mm minimum distance from the corner of the lift or platform; and • Luminance contrast complying with AS1735.12; and • The force to operate the control buttons shall not exceed 5 Newtons. In the recent Ryan Vs Sunshine Coast Hospital and Health Service matter we have a salient reminder that compliance with deficient Australian Standards and regulations, either by deemed to satisfy or performance assessment, is not a defense against DDA complaints. This standard is clearly a reduction in accessibility and should never be referenced by the NCC or Premises Standards.
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FEATURED ARTICLE
RYAN v SCHHS: a life changing landmark decision by Bryce Tolliday
Bryce Tolliday is an accredited member of ACAA and a qualified access consultant who has been practicing as an access consultant for 22 years. He is the Managing Director and a Senior Access Consultant at Wayfinding Australia Pty Ltd which trades as Access Allways Consultants. Bryce represents ACAA on the AS1428.4.2 Standards Committee and has been a contributor to a number of pieces of research including the CRC Innovation Wayfinding System Audit Checklist and Wayfinding Design Guidelines and the Queensland Health Wayfinding Design Guidelines.
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eter Ryan was a hard working man, a man who worked for some of his life as an able bodied man in a physical environment. A builder, a stone mason, a labourer and a father and up until 1970, Peter was a normal man, no different than most of us. He was a man who lived with diabetes but in 1970 he was diagnosed with diabetic retinopathy and became legally blind with only 2% usable vision. Peter, through his life experiences as a man with disabilities became a leader of several disability groups in his life. He was passionate about representing people who had disabilities in what he saw as a struggle to improve access to buildings and the services provided. There was a long period where, despite his disabilities, he was very mobile, thanks to his four-legged companions, Virgil being his most trusted friend. As Peter aged, he developed a number of additional debilitating conditions,
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particularly in the last 5 years, which included issues with his kidneys, lungs and eventually he was severely overweight (bariatric). Peter often gave his time up to talk to anyone who would listen about his disability and how it impacted his life. He would go to Primary School’s with Virgil and speak to classrooms full of kids about his illness and what it was like being blind. He was a stickler on educating little kids about the importance of eating green vegetables which, because he hated them when he was young, were entirely to blame for him having diabetes. When I first met Peter, which was about 25 years ago, buildings were not accessible like they are now. The Disability Discrimination Act was a very new Law. The famous Cocks v The State of Queensland, a complaint under the Queensland Anti Discrimination Act, had only recently been decided (1994), a decision which changed the Building Code, as it was, to ensure that the main entrances of all buildings were accessible to people using wheelchairs. This was a landmark decision based on Queensland state law. Peter was most interested in this decision and how he could use this to improve access for people with low vision in the built environment. He made his first complaint under the DDA in 2002, a complaint about access within a medical centre. This was a very personal complaint to Peter, as at the
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time as his partner Gwen, had a serious accident trying to get through a doorway in a wheelchair where the accessway width did not consider door circulation and she tumbled backwards from her wheelchair into the car park, causing her serious injuries. Months later she passed away. I remember attending the Federal Court with Peter and his guide dog Virgil. We were sitting at the back of the courtroom listening to the matters being heard. The ATO vs this guy for millions, the Comm Bank vs this organisation for millions etc and at one point in the middle of a very heated debate between a barrister and the Federal Court Magistrate, someone started snoring. The judge stopped mid-sentence and panned the court to find the culprit. It was like being at the football, as all these wigs sat upright to ensure the Judge could not target them for this disruption. When he got to me and Peter, I pointed down to Virgil who was soundly asleep at our feet. The judge looked over the top of his half-rimmed glasses, smiled and continued with the argument with the barrister. Peter missed all this because he was blind, I nudged him and whispered, we’ve got this one in the bag mate, and we did. The other side consisted of three separate legal teams all representing different clients. Peter was representing himself. The judge asked Peter how much money he was seeking. Peter said nothing I just want to use the building like everyone else. The judge asked if the other side had made any offers during conciliation. Peter said no. The judge pointed to the wigs on the other side of the room and said, you people better take Peter into one of the outside meeting rooms and sort this out, I warn you not to come back here again as you might not like how this ends. Peter got everything he was seeking, a great victory but it gave him a taste for something he knew was right and our friendship and Peter's story of advocating through the tribunals and the courts began. He founded an organisation called Accessible Environments (AE) which lodged
numerous complaints under both the DDA and ADA. He had a number of people with different disabilities join him and identify buildings all over Southeast Queensland for complaint. Then other people with disabilities joined his group in Sydney and Melbourne. This organisation reinforced to the ABCB and others that people with disabilities and the DDA should not be ignored when it came to providing access to the built environment. One of these complaints was against the Royal Brisbane & Women’s Hospital where Peter attended an Eye Clinic. I couldn’t assist Peter with this complaint as I had a conflict of interest, so he had no-one assisting him. For me that was a very brave move for Peter, he’d call me for help, and I had to just keep reminding him of my conflict at the time. He found his way without me, which was something I will never forget, how brave he was back then. The Crown had engaged Murray Mountain to act as their expert. Murray turned out to be an excellent advocate for Peter who got the State to agree to a wayfinding audit of the entire hospital and to also commit to undertaking work that was recommended by this review, which they did. Also, and more relevant to this story, this complaint resulted in two important pieces of research. The CRC project on the Wayfinding Design Audit Tool and the Wayfinding Design Guidelines and Queensland Health’s own Wayfinding Design Guidelines, the latter of which was an important piece of evidence in the SCUH matter. Accessible Environments, meanwhile, was active in other states, as well as Queensland, with the assistance of people like Ivan Peterson, a person who was responsible for so many positive changes for people with low vison in the built environment. AE’s complaints in other states and in Queensland reminded State and Local government and major developers that they should not ignore the DDA or people with disabilities. These were
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FEATURED ARTICLE maverick times, maybe on reflection a little bit aggressive, but times which created an entire industry and improved access for people with disabilities irrevocably.
ABOUT THE BUILDING In 2006, the Queensland Government called tenders for the design and construction of three new hospitals, the Gold Coast University Hospital (GCUH), the Lady Cillento Children’s Hospital (LCCH) and the Sunshine Coast University Hospital (SCUH). The State proceeded with both GCUH and LCCH using a traditional model of design and construction, however SCUH was put on hold for a couple of years and then proceeded as a Private Public Partnership (PPP). Interestingly the builder for GCUH, Lend Lease, was also part of the PPP formed to build and maintain SCUH. The PPP model varied from GCUH in that at the time because it could, the State used its own Building Certifiers and an independent access consulting firm was engaged, which was my firm. For SCUH, the assessment model was completely different, the NCC component was assessed by a private certification firm which, as it turned out were also the access consultants for the project. Both firms had a contact with the Crown that the building would comply with the DDA. The PPP for SCUH consisted of the following firms: • Exemplar Health • Lend Lease • Spotless Facilities Services • Siemens
PPP. Regarding the design, Architectus’s website states:
Designed to create natural, freely accessible social spaces that takes full advantage of the benign seaside climate, SCUH offers high levels of public and natural amenity and, through connection to the local community, enhances the experience of patients and staff and contributes to their wellbeing. The design won numerous awards including prestigious awards from the RAIA in June 2017. Architecture.com.au stated in a media release regards some of these awards:
The Sunshine Coast University Hospital, by Architectus Brisbane and HDR Rice Daubney as Sunshine Coast Architects, was lauded by the jury as ‘an intelligent and elegant public building that strives for local use and social engagement through the clearly defined provision of green corridors, public outdoor spaces and community infrastructure’. 'Consequentially achieving one of Australia’s largest constructions on a green-field site crafted into the surrounding coastal landscape genuinely belonging to its place and community,’ the project received the F D G Stanley Award for Public Architecture and the Karl Langer Award for Urban Design. Clearly there is a disengagement between some parts of the design community and community expectations in regard to disability access when such prestigious awards can be lauded on a design which in the end proved to be unlawful under disability discrimination law.
• Aurecon
THE MATTERS THAT CAUSED THE COMPLAINT
Completed in 2017, Sunshine Coast University Hospital (SCUH) opened as a 450 overnight bed public tertiary level teaching hospital, with a future expansion planned to increase to 750 overnight beds. SCUH provides a full range of ambulatory and acute services alongside an academic and research centre.
As is normal with major public assets such as SCUH, the design process begins, in part, with community engagement. Individuals and organisations who will be or might be impacted or who have an interest in how the hospital is designed are invited or can volunteer to attend numerous public consultation sessions.
Architectus and HDR Rice Daubney were engaged to design the hospital by Lend Lease and the
Peter Ryan, along with numerous other individuals and organisations on the Sunshine Coast
• Capella Capital
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representing people with disabilities attended several of these sessions. As I recall from conversations with Peter, initially he felt confident that he had received an understanding hearing and that concerns he put before the hospital including luminance contrast for building features such as shorelines, raised tactile and Braille signs and Maps and tactile ground surface indicators were being passed along to the design team for action. However, as time went on, Peter became quite disillusioned with the consultation process as he was not getting any assurances that the matters, he raised were in fact being addressed in the design. Eventually he stopped attending. His worst fears were realised when the hospital opened, and he experienced the design for the first time. When the hospital opened, Peter was quite mobile. Initially, he had a Guide Dog and was an independent and quite a confident traveller. However, after about 12 months from the opening of the hospital, Peter sadly lost his
Guide Dog and was forced to navigate using his orientation skills or at times with the help of a sighted guide. Peter was a regular visitor/ outpatient at the hospital as he had a number of medical conditions which frequently meant attending outpatient clinics. Peter experienced several disabling features of the design from his very first visit which included: • There were no tactile ground surface indicators in the public forecourt of the hospital. Most of this area was at grade with the road surface adjacent which was used for passenger pick up and set down and short-term car parking, plus there was one area for Emergency Vehicle Set Down eg., police, fire brigade but not for ambulance parking. There were very few shorelining opportunities and no raised tactile or Braille signage or maps which he could read to assist with wayfinding. Spring 2021
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FEATURED ARTICLE • The main hospital entrance consisted of glass automatic doors in a fully glazed wall. As there were no tactiles to provide clues as to the location of the entrance, Peter often just walked into the glass wall. • Once inside the hospital there were lots of polished surfaces. Walls and glazing, which got worse over time as the cleaning contractor took the matt finish floor to a highly polished surface. • All of the signage, apart from the signs required by the NCC, were impossible for him to read. The surface was not raised, but worse than that some of the lettering was 6mm high and other signs, such as those on the lift directories in the landing areas were on polished surfaces, which when combined with the high levels of natural lighting, were quite painful for Peter to attempt to read. • The corridors were very difficult for him to navigate because the walls and the floors were similar in colour with very little luminance contrast. To make matters worse along several corridors were structural columns very close to the wall and these columns were painted the same colour as the walls. Peter often collided with these making his travelling problematic, particularly when he no longer had his Guide Dog. Eventually he lost a lot of confidence when moving around the hospital. • He was not comfortable using volunteers, mainly because he felt insecure. He had previously had an experience with volunteers in another hospital where a person who claimed to be a volunteer put him in a lift and pressed the car park button and left him for dead. Ever since then he did not trust volunteers and was not comfortable with this being a requirement at SCUH. Initially Peter did complain about some of these issues to the hospital and they did undertake some work within the forecourt area but his main issue, which was within the hospital itself, was ignored and externally they only partly addressed his concerns. They addressed the relationship between the pick-up set down area being at grade with the road with tactile ground surface indicators, which was great, and from there a connection to the main entrance door. The problem for Peter was that he often got
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FEATURED ARTICLE dropped off or picked up at the adjacent Emergency Set Down area as there were no vehicles spaces available in the pick-up set down area. This Emergency Set Down area was only delineated by bollards which meant he quite often walked between the bollards and found himself on the road. Not a great space to be for someone who was blind.
Health and their own design guidelines, that the hospital would actually not want to engage with Peter and sort his concerns out. Having worked on several Queensland Health hospitals including the 750 bed Gold Coast University Hospital (GCUH), I was aware of Health’s own Design Standards which seemed in this instance to have been ignored. He did write but to no avail.
THE COMPLAINT
On one occasion Peter rang me and he was quite distressed. At the time I was driving around Australia and I had two other DDA complaints running at the same time. The hospital relied on the use of volunteers to resolve a number of problems, but in particular the volunteers were the front line managing the poorly designed and built wayfinding system. For Peter, this meant
Peter would often ring me complaining about his experiences and venting his frustration and the lack of motivation from the hospital to resolve his concerns. I continually asked him to write to the hospital and ask nicely, not threaten, as I was having trouble, given the history with Queensland
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FEATURED ARTICLE having to trust someone he could not clearly see (i.e. he trusted them to be who they said they were), and then to have this perfect stranger lead him to his destination. On one occasion the volunteer pushed Peter along by his back (i.e. these volunteers were not properly trained in how to lead someone who is blind). On the specific episode that had Peter so distressed the volunteer lead him to the correct Outpatient Clinic where Peter waited to be called. The volunteer did not wait for Peter but returned to the volunteer area where she would wait for the next person needing assistance. Peter waited quite some time and eventually was led into his appointment, which ran over time. When his appointment finished it was after 4.30 pm so all the volunteers had gone home for the night. Peter needed to not only find his way out of the hospital unguided, but he also badly needed to find a toilet. Unfortunately, he didn’t make it to the toilet and soiled his pants in the middle of the hospital. For me this was the last straw. I said to Peter, "if you’re OK mate with this let’s lodge a complaint under the DDA". Of course, he agreed and on 15 January 2019, Peter lodged an official complaint with the Human Rights Commission. In summary, Peter complained about: • No directional tactiles to lead him to the front door of the hospital from the drop off area • No warning tactiles to prevent him from walking onto the road • Throughout the hospital poor signage and wayfinding for the vision impaired • Lack of training for staff regarding the disabled community • No signs, apart from toilet signs within the hospital that he can find, let alone read. He complained there was no raised lettering on signs. He did not read Braille. • Having to find and use a volunteer to lead him around In order to resolve his complaint Peter asked that: • An accredited access consultant be engaged to make a comprehensive survey of the entire hospital
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• The hospital implements in full the finding of this survey • He should be able to find all signs, be able to read them and then be able to use them to find his way around without having to constantly seek assistance.
HUMAN RIGHTS CONCILIATION The Conciliation process commenced early February 2019. Peter received a letter from Adj Professor Naomi Dwyer, Chief Executive of the Sunshine Coast Hospital and Health Service (SCHHS) stating that the building had been independently certified as complying with the Building Code of Australia (BCA) disability access provisions and since then additional funds had been invested to enhance these baseline requirements at SCUH. This included placing additional TGSI’s at the building entrance and that additional TGSI’s would be installed from the entrance to the passenger set down area. Of course, Peter knew this as it was in response to some of his complaints. In this letter, SCHHS stated that the Emergency Set Down area was not for public use and enhanced road markings would be installed to clarify this exclusion. SCHHS also advised, in this letter, that additional directional TGSI’s would be installed through the existing passenger set down area to extend the connection to the hospital entrance. SCHHS confirmed that volunteers were there to assist Peter and he should use them. The resulting installation of TGSI’s did not improve access, in fact it created issues for other people who use wheelchairs, parents with pushers, etc. as the resulting installation interfered with a clear accessway due to the lack of width in the accessway. For Peter, this just added to his frustration. Peter wrote back to SCHHS asking to see plans for the proposed additional TGSI’s so he could comment and also to make sure that any additional signage, regarding the Emergency Set Down area, were raised tactile and Braille and located so he could find them. As he discovered the proposal was to improve vehicular signage but not to address his concerns which was about warning pedestrians. He also asked if the building was required to comply with the objects of the DDA, reiterating that signage and wayfinding
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which were specific parts of his complaint were currently not regulated by the BCA. The response Peter received back from the Chief Executive set the tone for the HRC Conciliation. She reiterated that the hospital complied with the BCA, the same building certifier had confirmed the hospital was also fully compliant with the DDA (their own access consultant) and the Queensland Anti-Discrimination Act (ADAQ), that the signage would warn vehicles they were not allowed to stop in the Emergency Set Down Area (no mention of warning pedestrians not to walk out onto the road) and they had no time
to provide Peter with plans for review as the works had already been programmed. In addition the Chief Executive offered to undertake a study to determine the costs of addressing the other issues raised by Peter with the intention to request future funding in their budgets which may or may not be approved. All of this was unacceptable to Peter, so he rejected the offer and awaited the Conciliation Conference date to be set. HRC set a date for the first Conciliation Conference on 1 May to be held at the Queensland Human Rights Commission offices in Brisbane, which happened to be very close
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to Queensland Health’s main office. Peter, Trevor Rice (a close associate of Peter's and Vice President of SCAAN, an organisation Peter founded and acted as President for many years) and I travelled from the Sunshine Coast to attend the conference. Peter was hopeful that the discussions would be fruitful. Whilst the actual discussions of these conferences remain confidential and closed, Peter was very disappointed that no-one from Queensland Health turned up in person to the conference. Peter was old school; he would take a person on their word as long as they were in the room. The Crown opted to dial in (this was pre-COVID). Secondly, it became very clear from the start that Queensland Health (SCHHS) was still of the opinion that because the building had been signed off as complying with the NCC by a building certifier and an access consultant that in fact there was nothing more they were required to do. Thirdly it was also made very clear to Peter that what had been offered by the Chief Executive (who did not attend) was their final offer, at which point we terminated the conference and left. The Commission instructed both parties that further discussions held little hope of progressing the matter so for them there was no point holding further meetings and they terminated the matter instructing Peter, if he wished to continue, he would need to make application to either the Federal Circuit Court or the Federal Court. 24
FEDERAL COURT APPLICATION One of the advantages for Peter in being able to lodge an application with the Federal Court, once his HRC Conciliation was terminated, was that he could make this application with a clean slate. He now had an opportunity to subtly expand the matters he was complaining about, which is something I advised him to do, as in my view there were many issues which had had not covered in his initial complaint. On 14 May, Peter lodged his application with the Federal Circuit Court. At this stage he was struggling to obtain legal assistance, so this Application was made without any advice from a solicitor or barrister. There is, and remains, a great divide for people with disabilities in being able to understand not only the process but identifying how they can access the legal system. This became very apparent as we entered the realm of the court process. In his Application Peter alleged that the following section of the DDA had been breached by SCHHS: s.6(1) & (2), s.23(a), (b) & (c), s.24(b) & (c), s.31 and s.32. Peter’s application alleged that he had experienced indirect discrimination and that the respondent had failed to provide any reasonable adjustment in that:
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which either make using them to provide guidance unsafe or at least extremely disorienting. Some surfaces have insufficient luminance contrast with adjoining surfaces or due to high levels of glare are extremely uncomfortable to experience.
2. There was insufficient ground surface guidance throughout the forecourt area to provide guidance to the main building entrance from the emergency set down area, the short-term car parking area and from the surrounding precinct connection points; and
Further Peter alleged that in some instances the matters he was complaining about also breached Schedule 1 Part D3.8(1)(e)(ii) of the Disability (Access to Premises – Buildings) Standards 2010, a standard issued with the full power of s.32 of the DDA.
3. All signage throughout the parts of the hospital which are accessible to the public, apart from toilets signs and some signs at exits; contain messages, words and graphics identifying important wayfinding decisions, directions, and destinations and that the means of identifying all these destinations was conditional on a person having usable vision in order to have these matters and messages described to them through reading. Because this information, in all instances, is not readable by touch, this places a person with low vision, like Peter, at considerable disadvantage, requiring them to seek assistance in all instances to find their way. 4. Other architectural features, such as walls, columns, floors and glazing have finishes
The application sought the following orders: 1. Tactile Ground Surface Warning Indicators to be installed for the full length of the pedestrian surface at the Emergency Vehicle Set Down Area which is at grade with the adjacent road surface in accordance with AS1428.4.1:2009 and the Disability (Access to Premises – Buildings) Standards 2010; and 2. Tactile Ground Surface Directional Indicators to be provided from the Emergency Set Down Area and Short-Term Parking Area, and from other parts of the precinct to the existing Tactile Ground Surface Directional Indicators to connect from these potential drop off areas to the principal public entrance to the hospital; and
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FEATURED ARTICLE 3. Raised tactile and Braille wayfinding signage to be provided throughout the public areas of the hospital on all signs which provide information, direction or identification of all facilities, destinations and rooms where these are accessible to the public. 4. Apply a wayfinding strategy and outcome to the entire hospital which does not disadvantage someone who is legally blind. The current strategy seems to rely entirely on volunteers which is unacceptable as this is not required of people who can see. The wayfinding strategy should rely on clearly defined and legible shorelines, removal of glare from important wayfinding decision points such as lift lobbies, incorporating building finishes which inform and enhance the wayfinding experience for people with low vision. Some examples of disadvantage apart from the at grade surface at the Emergency Set Down Area and the wayfinding signage include structural columns within shorelines that are the same or a similar colour to the walls and floor surfaces, walls and floor surfaces that are similar in colour within corridors which make it impossible to distinguish edges for shorelining, glazing treatments which finish at the floor which provide no contrast to make them detectable and hence form a considerable hazard and disorienting building feature and glare from the abundance of glazing at entrances and lobby areas which are particularly painful to experience Note: Peter made some reference to AS1428.4.2:2018 as a means of compliance, however many of the matters Peter was complaining about and sought in his orders were not, disappointingly, covered by current Australian Standards and he had to rely on evidence from other Australian and International sources to support the outcome he was seeking.
LEGAL REPRESENTATION It was clear that Peter needed legal assistance. The court system can be and is very challenging for anyone making these types of complaints, let alone for someone who is legally blind and has several other disabilities. On his behalf, I contacted the Law Society and with the Bar Association in Queensland. The Bar Association 26
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FEATURED ARTICLE process was pretty simple as I had access to a list of Barristers in seniority online, so I started from the most senior and worked my way down. The first person I contacted hadn’t been in court for 20 years, but my next contact said yes straight away, virtually no hesitation. Dan O’Gorman SC was very experienced in this space having been involved in the Cocks v the State of Queensland complaint many years back and numerous other disability actions since. He agreed to take the matter on pro-bono as long as I was able to locate a solicitor who could brief him. Dan proved to be Peter’s saviour. Finding a solicitor proved to be very challenging, in fact a nightmare. People on disability pensions really have a tough time finding a lawyer, particularly around Human Rights Law. Our first contact was with a solicitor who had a lot of experience in this space, having worked with Legal Aid for many years. Unfortunately, he was unable to assist as he did not have a current practicing license. We then contacted Queensland Advocacy Inc, Welfare Rights, Queensland Law Rights, Legal Aid, and a number of private legal firms hoping one would take this matter on pro bono. By now it was early July, and we had our first appearance in the Federal Circuit Court booked in for 19 August; this was a Directions Hearing. By 1 August we finally got agreement from Legal Aid to investigate Peters request and to help Peter out they initially contacted the Federal Circuit Court to confirm their conditional appointment and then set a date of 13 August for an advice session after which they would confirm whether they would act for Peter or not. It looked like we would appear at the first hearing without legal representation after all. One of Peter’s biggest struggles was his computer which proved to be his nemesis at times. On 7 August Peter discovered that he had encountered a problem with sending the email a week earlier with the agreement for Legal Aid assistance. This meant Legal Aid had to bail on helping him at that time. The paperwork process for Peter was very frustrating, but it got worse. Thankfully Legal Aid was able to get a postponement for the Directions Hearing until 9 September, even though at this time they had not been formally engaged. Then we continued to have problems
with Peter and understanding all the documentation that various legal services were sending him and it was a lot. The process for him was quite overwhelming. To make matters worse, the Legal Aid firm we had now been directed to were running an unusual line of questioning with us, it seemed like they were trying to talk Peter's claim down rather than proceeding as he wished to the courts.
COURT HEARING/PROCESS For those who haven’t been involved with a DDA complaint, there are several hearings and milestones for gathering evidence that have to be determined by the courts in order for the matter to progress. On 5 August, Crown Law contacted Peter and asked if he would agree to some Direction Orders which they had drafted. These establish timing for when evidence from both sides is to be provided, a date for a Mediation Conference and a way forward after that if an agreement could not be reached. The intent was to avoid attending Court on 9 August at 9:30am. Peter agreed to this, and we were glad as we might avoid the 2 hour trip from the Sunshine Coast to Brisbane for the Hearing which was just administrative and would normally be attended by a solicitor but as we had none we had to be there. The agreed Directions Orders were submitted to the court on 5 August. No response came back from the Courts that day. On 6 August Crown Law followed the Court up and still no reply. Peter and I then arranged to reserve parking over the weekend near the courts for Monday. I loaded Peter and his wheelchair into my car and we headed to Brisbane early on the morning of 9 August for the 9:30 am Directions Hearing, not knowing whether we had to appear or not. At just after 9.00 am on 9 August, the court responded that we were all required to attend. Lucky we were on our way. More problems. Peter at this stage was in a bariatric wheelchair, quite large and very difficult to push up hills, let alone along a city roadway. The address for the court was an entrance which was not used, that is, it was up a stair, and the doors were locked. This just made the task of getting into the court, on time, very difficult as I now had to push Peter up a very steep hill with no footpath to a different
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FEATURED ARTICLE building entrance. Eventually we got into the court, involving a process of me having to assist Peter from his chair, walk him up some stairs, leave him supporting himself on a balustrade whilst I went back down the stairs, folded his wheelchair, bought it up those stairs, reassembled the chair and then supported him back into this chair. Despite having initially allowed plenty of time, we were running late. We also had no solicitor as Legal Aid had yet to agree to either take the case on or refer it to another firm. We entered the courtroom just as they were calling Peter's complaint. The dock gate was not wide enough for Peter’s wheelchair to fit through, so we had to stand in the gallery and listen to the judge. Peter, who also had hearing loss could not only not see the judge but also could not hear him. This was very embarrassing for the courts, but fortunately Crown Law realised how difficult this was for Peter and were most helpful, which I commend them for, as we were like two fish out of water. Once the Directions Hearing was determined they pulled us aside outside the court and explained the outcome. Basically, the Judge wanted to shorten the times proposed in our agreed Direction Orders, and he wanted to get the matter before the court as quickly as possible. Peter and I were both happy with this. Some critical dates were established by Judge Jarrett’s Orders which were: • The applicant must file and serve a statement of claim by 4.00 pm on 27 September 2019 • The respondent must file and serve a defence to the statement of claim by 4.00 pm on 11 October 2019 • The applicant must file and serve any response ot the defence by 4.00 pm 25 October 2019 • All evidence must be by way of Affidavits • The applicant file and serve affidavits of evidence in chief upon which the applicant intends to rely, by himself or any other witnesses, including experts by 4.00 pm on 8 November 2019 • The respondent file and serve affidavits of evidence in chief upon which the applicant intends to rely, by itself or any other witnesses, including experts by 4.00 pm on 29 November 2019 28
• The applicant file and serve any affidavits in reply by 4.00 pm on 13 December 2019 • The matter was referred for mediation on a date to be fixed as agreed by both parts but no later than 31 January 2020. • The application was adjourned to 9.30 am on 7 February 2020 for directions What all this meant was that all the evidence had to be prepared, lodged, disputed, or agreed by 13 December and then a Mediation Conference would occur to try and reach a settlement. If a settlement was not agreed, then it would be referred to the court who would then direct next steps. Sounds simple. We still had the same problem. We had a Barrister who could not assist us until he was briefed, and we had no solicitor. Legal Aid finally referred the matter to Alexander Law on 22 September, five days before our Statement of Claim was required to be lodged. I contacted our new solicitor, and the office was closed as they were on holidays. Fortunately, our Barrister, Dan O’Gorman SC had prepared a draft Statement of Claim for Peter to review and comment on. I contacted our solicitors who advised that they would be applying for an extension in time for one or two days so they could prepare the Statement of Claim. They seemed to be ignoring the one already prepared in draft by our barrister. We were to be provided with a draft for review and comment with the Statement to be lodged the following day. Only problem, the solicitor failed to provide a new Statement of Claim when they said they would, and they did not confirm whether an extension in time was granted or not and what the new date/time was for the Statement of Claim to be lodged. Further Alexander Law sent another round of paperwork to Peter for him to sign to confirm they could talk to both me and our barrister about this matter. The process was proving to be very frustrating for Peter who just wanted to get on with the complaint. This was compounded by Peter's disability as he had a lot of difficulty reading and then comprehending these types of documents, in every instance he needed me to explain everything he was being sent. In addition, one email sent to Peter from the solicitor suggested the solicitor might appoint another Barrister should Peter’s preferred barrister not
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FEATURED ARTICLE want to be involved. Given that Dan had jumped on board from virtually Day 1 this didn’t go down very well with any of us. The arrangement with the solicitor continued to get worse. Our Statement of Claim was lodged on 4 October 2019 which sought the following orders: a. T hat the Respondent is directed to install tactile ground surface indicators in the following sections of the hospital: i. For the full length of the pedestrian surface at the Emergency Vehicle Set Down Area which is at grade with the adjacent road surface in accordance with Australian Standard 1428.4.1:2009 and the Disability (Access to Premises – Buildings) Standards 2010. ii. F rom the Emergency set down and Short-term parking Area and from the Translink Bus Station to the existing Tactile Ground surface Directional Indicators to connect from these two potentials drop off areas to the principal public entrance of the hospital. b. That the Respondent is directed to install raised tactile and braille Wayfinding Signage
throughout the public areas of the Hospital on all signs which provide information, direction or identification of all facilities, destinations and rooms which are accessible to the public. c. T hat the Respondent is directed to change the language used within the signage to provide a logical alpha/numerical numbering of rooms on all levels to assist with identifying and processing wayfinding decisions in order to find destinations and also to find a way in and out of the hospital. d. T hat the Respondent is directed to change the colour finish where walls (whether glazed or solid) and columns intersect with floor finishes so that a minimum 30% luminance contrast is achieved at this intersection. e. T hat the Respondent is directed to remove glare from all floor and wall surfaces within pedestrian areas of the hospital where public access is allowed. f.
hat the Respondent is directed to develop T and implement a wayfinding strategy and design outcome to the entire hospital which does not disadvantage someone who is legally blind.
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FEATURED ARTICLE The other side now had until 18 October to lodge their defence. Also at the same time we instructed our solicitors to engage an additional expert, Penny Galbraith, to provide a report for Peter's complaint, Penny was instructed on 23 October. Penny Galbraith, an ACAA accredited member, had also been assisting Trevor Rice with a possible additional complaint against the hospital agreed to act as an additional expert witness and provide the requested report by early November. Peter now had both me and Penny acting as Expert Witnesses for him in this matter.
RESPONSE FROM THE CROWN On 25 October, the Crown responded to Peter’s Statement of Claim which they rejected for reasons that they believed they complied with the Disability Discrimination Act. Further as a defence they lodged an affidavit which made several claims which included: 1. That Queensland Health should not be part of the complaint as they do not operate the hospital. It is operated by the Sunshine Coast Hospital and Health Services who represent Queensland Health 2. SCHHS did not admit that Peter was legally blind or to what extent he used a wheelchair as this was outside their knowledge, although usually when he arrived using his wheelchair he is normally accompanied by another person 3. SCHHS agreed that they place conditions on people like Peter when using the hospital which include: a. b eing dropped at the pedestrian set down area and then using directional tactiles from this area to find the hospital entrance, and once inside the hospital being able to read; and b. u nderstand raised tactile and Braille signs inside lifts and at toilets; and c. o therwise seek assistance from hospital staff and volunteers who might be strangers who are not employed by the hospital and are not present 24 hours a day.
4. The hospital has not breached the Disability (Access to Premises – Buildings) Standards 2010 by not providing directional and warning tactile ground surface indicators from other arrival points to the hospital at the road boundaries or from another accessible building because these approaches are accessible1. 5. The hospital does not require Peter to find his way to the hospital from anywhere other than the pedestrian set down area, so they deny they are required to provide any other treatment of tactile ground surface indicators. Emergency vehicle set down area 6. The emergency vehicle set down area is for the exclusive use of emergency vehicles from the police and fire services (not ambulance services) and is not used for any other purpose including dropping off patients by non-emergency service vehicles 7. The bollards in the emergency vehicle set down area are spaced 180 centimetres apart which segregate the pedestrian trafficable area and are a suitable barrier2 8. There is a warning block of TGSI’s at the end of the directional which link to the dedicated set down area which prevent visually impaired people (Crown Laws use of this term, not mine, so I will continue to use it where they have) from approaching the emergency vehicle set down area. 9. The emergency vehicle set down area is exempt from being required to be accessible by clause D3.4 of the Disability (Access to Premises – Buildings) Standards and therefore there is no requirement to provide warning tactile ground surface indicators where a roadway is at grade with a pedestrian surface Signage 10. The hospital has provided raised tactile and Braille signs at toilets and within lifts 11. The volunteers are rostered in various locations in order to assist people to move
and that all the above is reasonable. 1 Important to remember when reviewing the decision 2 Important to remember when reviewing the decision
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FEATURED ARTICLE within the hospital and to locate services on the Ground Level and Level 1 & 4, Monday to Friday from 7.00 am to 4.30 pm, and in Emergency seven days a week between 7.00 am and 7.00 pm and in Radiation Monday to Friday from 7.00 am to 8.00 pm. 12. The wayfinding strategy throughout the hospital which involves using TGSI’s, tactile and Braille signage and volunteers is sufficient to locate services for a visually impaired person 13. The hospital admits that there is no raised tactile or Braille signage for the identification of and direction to destinations apart from at toilets or in lifts because it is not required by Australian Standard AS1428.1 (an important weakness when read into the final decision) 14. The font size on the wayfinding signage is not too small to be read by someone with low vision by using a combination of usable vision and touch because the hospital is not aware that this is important
15. Denied that the surfaces on some signs are disabling resulting from glare as the surfaces are low sheen 16. Denied for reasons that it was outside their knowledge, that information on wayfinding signs should be between 1200mm and 1600mm above the floor level or that simple language should be used on signs or that room numbering should be able to be read by someone with low vision by touch. 17. Denied that some signs did not have sufficient luminance contrast between the content on the sign and the background, that there is no directional signs to inform of directional choices which the applicant can read or touch to read or that wayfinding information on signs is not within the common zone of reach Glazing 18. The hospital had not breached clause D3.12 of the Disability (Access to Premises
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FEATURED ARTICLE – Buildings) Standards because there is no frameless or fully glazed doors, sidelights or any glazing capable of being mistaken for a doorway or an opening anywhere in the hospital that has not been marked in accordance with AS1428.13 Corridors & Surfaces 19. The hospital did not know what was meant by the corridors and pedestrian accessways throughout the hospital having similar surface colours for floors, walls and ceilings or why this would cause the applicant any disadvantage 20. The hospital does not know what is meant by the use of glass and polished surfaces including flooring, glazing and wall finishes and why this would cause the applicant any disadvantage The hospital, in its defence stated that if the courts find the hospital has contravened the Act then they will rely on section 29A of the Act and plead unjustifiable hardship. Needless to say, we denied everything in the Respondents Defence and our solicitor requested they provide particular facts, matters and circumstances which they are relying on to support their allegations. In our discussion with Dan, we thought it was laughable that a $2 billion dollar hospital might even consider that addressing Peter’s concerns would impose an unjustifiable hardship, but we were all interested to see how this might unfold. Could the State be insolvent?
SIDE SHOW At the start of November, we started having trouble with our solicitors. They became difficult at times to contact, not responding to some emails and more importantly not briefing or talking to our Barrister. This continued to get worse as November progressed. We had to find another way.
TO BE CONTINUED...
3 Important to remember when reviewing the decision
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Australia’s only Type A inspection body accredited by the National Association of Testing Authorities, Australia (NATA) for slip resistance & recognised globally through the ILAC mutual recognition agreement to AS ISO/IEC 17020 for the inspection and conformity of slip resistance and luminance contrast testing.
02 9621 3706
www.SafeEnvironments.com.au
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FEATURED ARTICLE
Emergency Evacuation and Lifts in a Building by Vanessa Griffin Vista Access Architects
Vanessa has over 20 years experience in the construction industry, working in a variety of roles, from the certification of buildings, to the undertaking fire safety upgrades to existing buildings and more recently as an ACAA Accredited Access Consultant. Vanessa has a passion and drive for access, not only as an Access Consultant but also in the role of Vice President on the Board of NADO (Nepean Area Disability Organisation), and the Disability Access Committee for the Blue Mountains City Council.
A
s the National Construction Code evolves every three years with a new update, there seems to be one taboo subject that appears to never make the update to be mandated in the design of buildings. Building design standards are transformed to ensure inclusive design so that persons can enter the building, however, the NCC/BCA is almost silent on how mobility impaired, the elderly, or hospital patients may be evacuated other than with the provision of fire isolated stairs, in which many are unable to use. A lift provides all occupants the opportunity to move safely and freely around buildings and the built environment. It is very common to find signage near a lift call button “Do not use the lift in the event of a fire” and this has been industry practice for a reason: • You may not know the location of the fire within the building. The lift may very well open onto a storey within the building impacted by fire. • The lift may have a function known as ‘Go to ground’ which is a shutdown mode where the doors open and the ‘calls’ are disabled in which an occupant would not be able to call/
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request for the lift from their location during an emergency. • The fire brigade and emergency services often use the lifts to move around and gain fast access to the building leaving the stairs for the evacuation of people who are able to negotiate the stairway. The use of the lift by occupants would slow this process for the fire brigade and emergency services. • Lifts have the ability to spread smoke between storeys as they travel up and down the lift shaft within the building which can cause additional issues to occupants. Whilst this all seems logical, where lifts are not designed for this purpose, it leaves those unable to evacuate via stairs at a higher risk. In the aftermath of the collapse of the World Trade Centre Towers in New York 2001, a shifted focus was towards lifts and their use during evacuation in the event of an emergency. Designers, engineers and researchers have been asking whether the availability of lifts during emergency egress are appropriate in circumstances to improve egress from tall buildings. Research has concluded that potential difficulties impacting the evacuation of taller buildings includes obstructions (such as hydrant risers and fire hose reels), mobility impairment, illness, fatigue, counter flow (people and rescuers going the other way) and footwear that is not suited by the occupants to walking down many flights of consecutive stairs (sorry Louboutin). A lift in a building provides the freedom for an occupant or visitor to move freely within the building. This is not just restricted to people with a disability but also other members of the public including parents with prams.
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FEATURED ARTICLE As building designs and materials are evolving to incorporate a more inclusive design as well as major steps in technology; one major critical aspect is that we mandate access to and within a building, however, the biggest danger is that the building standards for Australia are all but silent on the issue of evacuation. The BCA does however provide a Performance Requirement in the BCA/NCC relating to the use of lifts in an evacuation:
Figure 1: Performance requirement DP7 Evacuation Lift from the NCC 2019
Whilst the Performance Requirements provide measures to be considered, the BCA/NCC as a document it is silent in providing a Deemed to Satisfy (DtS) clause for the provision of lifts to be utilised in evacuation, which is very unusual as the other performance requirements generally relate to at least one clause where applicable for the DtS. In more recent times there have been discussions around the design of creating a safe refuge in buildings for people with disabilities. Particularly as we are mandating access into a building via building standards, however, the big issue for evacuation in the event of an emergency has been a tabled item each new version of the BCA/NCC. A safe refuge creates other issues such as maintaining clear paths for the more agile person to continue safe evacuation. A person who relies on a device for mobility would more than likely require more than one person to provide assistance to safely evacuate. Additionally, what if there were multiple wheelchair users on a floor, a safe refuge may only provide for one wheelchair, so a choice has to be made.
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FEATURED ARTICLE
Figure 2: Example of a safe refuge design for a wheelchair user in a fire isolated stair.
The additional cost to buildings to increase the floor area within a fire isolated stair would be seen by many as a waste of floor area, given the additional area would reduce the available net floor space for which a profit could be achieved for the build. Additionally, it is within the corner of the fire isolated stair to the landing that a fire hydrant riser would be designed to be located, which would require an additional increase to the floor area to accommodate the safe refuge. The cost in design and construction of the refuge area has been seen as a waste as it is based on the ‘what if?’ and therefore placing a cost to a person's life. It is common that we at one point in time have all waited for some period within a lift lobby, and this would be no different in an emergency situation. There would be three steps to consider for evacuation via a lift: 1. Safety - waiting for the lift 2. Safety - when using the lift
And the issue is that safety cannot be a defined term. All three of these elements combined provide a bigger design challenge not only for use and operation, but also the final point of evacuation. The idea would be to provide a refuge lobby to each level. This would be a significant added expense to the developer which in no doubt would be passed onto the consumer with a significant profit margin. Not to mention the additional annual cost to the owner of the building to have this element checked and certified on an annual basis. The lift lobby as a minimum would require fire resisting bounding construction which would provide a protected waiting area for the occupant, and the pressurisation of the lobby to mitigate smoke ingress and the spread of fire within the bounding construction of the lobby. Additionally, a separate electrical circuit from the building to ensure independent operation of the lift would be required.
3. Safety - when exiting out of the lift to evacuate the building
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FEATURED ARTICLE
Figure 3: Example of a protected lift landing (Copyright of the ABCB Handbook: Lifts Used During Evacuation 2013)
The BCA already addresses the construction of fire resisting lift shaft and doors in the DtS of the BCA, however, smoke separation has not been included. Smoke is a critical element as it can spread to the lift car and compromise the user, and it may spread to the lift shaft and travel into other non-fire/emergency impacted floors. It may not be known that in the event of a fire a person is more likely to die from smoke inhalation and breathing complications, than physical burns to the body from the fire. The air movement created by the lift car moving between floors is critical and must be managed similar to that of stair pressurisation. A user of a lift in an emergency would need to discharge safely from the lift and the building. It would be ideal for the lift in the fire mode response to travel directly to the ground floor or the level with the most direct step free access to open space outside of the building. The discharge point of the lift is critical as this area must be protected, more so because lift doors operate automatically once the required floor for discharge has been reached. The operation and use of the lift is the biggest obstacle. In the fire mode operation, it would be key to evacuate the floor in emergency first, then return to the floors above the emergency to safely evacuate other persons with the lift,
bypassing the danger floor so that it did not stop and open the doors to the hazard. We must also consider the impact of water for a person to safely evacuate should the building be sprinklered as this could have additional impact to a mobility device and the slip resistance of the floor surface. Lifts suitable for emergency egress use are available on the market within Australia, however the pressurisation of the lift lobby has not been mandated, therefore not enforcing evacuation via a lift to be considered and mandated. Additional safety measures for consideration for a lift suitable for emergency egress include the provision of back up power, fire warden training which varies from building to building, signage, CCTV, the provision to allow emergency phone calls, a visual storey number as well as voice activation. The lift needs to provide adequate information to provide a person with a disability the confidence to operate and use the lift in an emergency. In the modern world it seems that we as a society value inclusion and ensuring a person with a disability is afforded to the same equitable facilities as those abled bodied. We can only hope that the Australian government recognises the need to provide safe evacuation for person with a disability and lead the world with legislation into the future. Spring 2021
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FEATURED ARTICLE
Specifying a lift: A supplier’s perspective by Oliver King Director, PR King & Sons
W
ith accessibility needs changing in both residential and commercial settings, being on the front foot counts for everything. Oliver King who heads up P. R. King & Sons, a fourth generation family business knows that compliance and quality are paramount for a lift company to thrive, in the fast paced lift and accessibility sector. P. R. King & Sons have a rich history of helping people in and out of buildings. In the summer of 1952, a friend of Lindsay and Alex King who
lived in Vaucluse reached out. He had lost a leg in WW2 and found the steep stairs on the property difficult and painful. He thought that his friends, Lindsay and Alex King, from P. R. King & Sons might be able to help. Lindsay and Alex immediately went to work and were inspired by the Swiss and their rack railways used to climb the incredibly steep slopes of the Alps. They engineered a method to carry their friend up and down his property. What they didn't expect was that his neighbours would want one on their property. This demand spawned what would become the Inclinator™.
THE INCLINATOR When specifying a lift to suit a particular purpose or environment, as with any piece of mechanical equipment, one of the first questions is reliability. This question becomes particularly poignant if a platform lift is being installed outside, or next to the ocean. Much like a vehicle, if the equipment is maintained as per the manufacturers’ recommendations (as per the Work Health and Safety Regulation 2011) the lift, platform lift or Inclinator should provide no problems. However, they are often purchased as a set and forget item, which they are not. This can create a stigma of unreliability across the whole sector. Anyone considering a product of this nature must consider the following items: • Is it fit for purpose? ° Is it suitable for an outdoor environment? ° Is it suitable for a high saline or high chlorine environment?
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FEATURED ARTICLE • Is the product suitable for the target user group? • Does it comply with the necessary codes like the National Construction Code, AS1735 and EN81? • Cost of ongoing maintenance (both parts and labour)? • Does the company supplying the equipment have the ability to supply parts, and are still going to be around in five years? People who are looking at this type of product are often not well informed on what they need, and how to meet the above requirements without over-paying and under-receiving. Often people will engage a lift or access consultant to navigate their way through this foreign process. P. R. King & Sons go through an “education program” with all our customers on both the residential and commercial projects to ensure that we aren’t just selling a stairlift, platform lift, lift or Inclinator, but we are selling a solution that is going to be the answer to their question. Even if they choose to purchase from another company, they are armed with the key requirements for their lift. When it comes to commercial projects the head contractor might be trying to find a “box ticking” lift, to meet the requirements of an inspector without thinking about the ongoing questions laid out above. This can create distress for the end user, as they are often left with a piece of equipment that might not be fit for purpose, not maintained and ultimately cost more money because the most cost-effective option was chosen by someone years prior. P. R. King & Sons are frequently called with requests to fix a lift that was installed by another company. Unfortunately, we can’t help these customers, as parts may not be available anymore, and working on a lift that we don’t specialise in, could end with a bill, and no resolution for the customer. Hence, we work to maintain the equipment we have supplied. The P. R. King & Sons team are happy to go through your requirements to help you navigate through the purchasing process.
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TECHNICAL INSIGHTS
TECHNICAL INSIGHTS The articles featured in Technical Insights are to prompt thought and discussion to assist our members' question and evaluate their understanding of the technical requirements of Australian Standards and other national/international source material. Technical Insights is intended to provide background information, a different viewpoint, a perspective from an individual with lived experience of disability or to prompt further discussion and/or research by you as an access professional.
Consultancy Agreements, should you sign them? by Howard Moutrie
T
his issue is not so much a technical insight than a legal insight. Let’s start with some basic principles of law. A consultancy agreement is a contract. It provides a set of agreed terms by which you and your client should abide and should state each other’s responsibilities and expectations. You may have your own consultancy conditions but when dealing with larger clients, they will inevitably require you to use their conditions. These agreements tend to be a lot less biased towards the Client than they used to be, but they are still written in their best interest. Most tend to be pretty standard in format but the content of some of the clauses varies. The ACAA sought legal opinion on some of the more contentious issues to assist you in deciding whether you should sign these agreements. Certainly, you
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should not be afraid to request changes – I do so regularly, sometimes without a problem and sometimes with a fight. These opinions are of course general in nature, and you should seek your own advice on specific matters, but at least it will provide guidance.
INDEMNITY All agreements generally have a clause requiring the consultant to indemnify the Client. An example is provided below: Indemnity
The Consultant shall indemnify the Builder in respect of all claims, demands, actions, proceedings, costs, losses, expenses,
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TECHNICAL INSIGHTS judgements and damages whatsoever (including legal costs and consequential damages) which are brought against the Builder or incurred or suffered by the Builder and which arise out of or in connection with the performance or non-performance of the Services under this Agreement including without limitation in connection with any services, including the Services, carried out before the date of this Agreement. The Consultant’s liability to indemnify the Builder under this Clause will be reduced proportionally to the extent that a negligent act or omission of the Builder has contributed to the loss, expense or damage. The legal advice regarding this is: As drafted, the indemnity is too broad for at least three reasons: • The consultant would be required to indemnify the builder against all claims made against the builder, whether these claims are genuine or not. The consultant would then also be required to pay all associated costs with defending the claim (which may be without merit), including legal costs. • Consequential loss can be very far reaching and, consequently, expensive; it should be avoided if possible.
WARRANTIES A warranty clause is also common. A warranty is effectively a promise. Two examples are below. The requirement to provide a “high standard of skill” as noted in 3.4 of the second example is a known legal no-no and will likely void your PI insurance if you agree to it. You are only expected to provide a standard level of skill. Consultant’s warranties
The Consultant warrants to the Main Contractor that the Services: a. w ill comply with, and it is registered or licensed in accordance with, any Legislative Requirements relevant to the Services; b. w ill comply with the requirements of the WHS/OH&S Legislation and the Main Contractor’s Work, Health and Safety Management Plan; c. a re fully conversant with the Main Contractor’s requirements and the purposes for which the Services are required; d. will be suitable, appropriate and adequate for that purpose; and
• Acts or omissions should not be limited to “negligent” acts or omissions, and should also apply to the builder’s consultants, contractors or agents.
e. a ny proprietary products, systems or items used/operated by the Consultant have been used/operated in accordance with the instructions of the manufacturer of those proprietary products, systems or items.
The legal advice is the clause in its present form is inconsistent with market practice and they propose the following instead:
Warranties
The Consultant shall indemnify the Builder in respect of direct loss or damage incurred by the Builder that arises out of or is in connection with the negligent performance (including non-performance) of the Services under this Agreement. The Consultant’s liability to indemnify the Builder under this clause will be reduced proportionally to the extent that an act or omission of the Builder (including its employees, contractors, consultants or agents) has contributed to the loss or damage.
The Consultant warrants that: 3.1 in performing the Services: (1) it has examined XXX’s Project Requirements and is satisfied that it is adequate for the intended purpose of the Services; 3.2 the Services when complete will: (1) be fit for their intended purpose; and (2) will comply with the requirements of the Contract;
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TECHNICAL INSIGHTS 3.3 it is, and will ensure that the Consultant’s Associates are, appropriately qualified and licenced (if applicable), will comply with all WHS Legislation and will not cause XXX to contravene any WHS Legislation. 3.4 it will at all times exercise a high standard of skill, care and diligence in the execution and completion of the Services: 3.5
it has checked the documents forming the Contract and is satisfied that they are complete and sufficient for it to carry out the Services in accordance with the Contract; and
3.6
the Fee makes sufficient allowances for the Consultant to comply with all of its obligations under this Contract, including performing any Services which are not expressed in the Contract, but which are necessary for the due and proper performance of the Services, the completion and use of the Deliverables or that part of the Project to which the Services relate.
Our legal advice is as follows. If you break the warranty, it is a contractual breach like any other; that is, it would entitle the other party to sue on the breach for the damages that flow from the breach. In the examples above, there are some particularly objectionable warranties, being: • the promises at (c) and (d) in the first set; and • the promises at 3.1(1), 3.2(1) and 3.4 of the second set.
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In relation to the first set: • (c): it is dangerous to promise that you are “fully conversant with the Main Contractor’s requirements and the purposes for which the Service are required”; generally, as a (mere) consultant, I have absolutely no idea what these requirements and purposes are, and I certainly wouldn’t be promising that my Services meet such a vague target. • (d): presumably, the reference to “that purpose” is a reference back to clause (c), but it’s not clear. In any case, it should be rejected for the same reasons that (c) should be rejected; that is, as a (mere) consultant, I have no idea about the suitability, appropriateness or adequacy of my Services in relation to some unstated (or poorly defined) “purpose”. In relation to the second set: Generally, promises that the services will be fit for some broadly or vaguely defined “purpose” or “intended purpose” should be avoided. • 3.1(1): This whole clause is confused and either dangerous or meaningless. I do not understand how the Project Requirements can be “adequate for the intended purpose of the Services”. What does this even mean?! What are the “intended purposes of the Services”? It should be struck out. • 3.2(1): Typically, professional consultants should not be promising that their services will be “fit for their intended purpose”. This is because the “purpose” or “intended purpose” is often unknown or vague. In
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TECHNICAL INSIGHTS practice, it amounts to a design warranty. Instead, I would expect a professional consultant to promise that it will “perform the Services with the professional skill, care and diligence that would be expected of a professional consultant experienced in providing services similar to the Services”. Those Services will or will not meet some unstated “purpose”, but that is not (or should not be) the consultant’s risk. • 3.4: In line with my comments above as to the standard of a consultant’s work, this clause should be deleted. Copyright & Moral Rights The issue of copyright is another common yet complex clause. Many of these clauses are written to address design consultants and are intended to allow the client to make changes to the design without necessarily consulting the designer. For access consultants, however, we typically produce compliance statements and reports and allowing a third party to make a change in my view is untenable. A typical clause is below.
9.7 The Consultant warrants that the Builder and their respective successors, assigns and licenses may:
9.7.1 exercise any and all rights in relation the Copyright Works, without identifying any person as the individual responsible for creating any particular material comprising the Copyright Works;
9.7.2 have the Copyright Works bear the name of the Project, the Builder, or any other person associated with the Project; and
9.7.3 modify, alter, adapt, distort or otherwise change any of the Copyright Works as they deem fit in their absolute discretion including:
(a) adaptation or translation into other dimensions, formal or media of those Copyright Works, and (b) changing, relocating, demolishing or destroying any two or three-dimensional reproduction of those Copyright Works without notice to or consultation with the Author. 9.7.4 the Consultant shall ensure that any agreement or consent is genuinely given and not obtained by duress or by the making of any false or misleading statement. The legal advice relating to this clause is that the clause 9.7 extract provided deals with moral rights rather than, more broadly, with copyright. In respect of a building, the relevant moral rights are: • the right of attribution of authorship • the right not to have work falsely attributed • the right of integrity of authorship
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TECHNICAL INSIGHTS Those who hold moral rights are referred to in the Copyright Act 1969 (Cth) as “authors”. Only individuals have moral rights, and the legislation deals (amongst other things) with an author’s entitlements in respect of those moral rights. Clause 9.7 (and cl 9.7.3 in particular) is designed to allow for an author’s moral rights to, in effect, be ignored. This is not an uncommon provision. What clause 9.7 does not deal with is things like statements of compliance; it is not designed to allow such statements to be modified. That right may exist elsewhere, but it is not in this extract. Further advice provided to me was that by making changes to our reports, the Client would then take responsibility for the report. I believe that a clause should be included either within you own agreement conditions or probably more appropriately within the report stating something like “notwithstanding any other agreement, if any changes are made to this report by an entity other than the Consultant then the consultant will no longer be responsible for the accuracy of the contents of the report.” Termination Most agreements include a section on termination and cover the situation of insolvency. They do not cover the death of the consultant nor if the consultant decides to close its business. As a lot of access consultants are essentially a sole consultant, I asked the question should these situations be included. The legal advice was that it would do no harm and may be a benefit. Payment Agreements tend to adopt a payment process to suit the client’s workflow. This means that payment must be made on a particular day or may require the submission via a 3rd party such as Payapps. The legal advice is that these are valid requirements, but they cannot reduce your rights under legislation as the Security of Payments Act NSW and equivalent legislation in other states. I will add to this, that I refuse to submit payment claims under Payapps or the like and have this very clearly stated on all fee proposals. As a result, I have always been successful in having this requirement waived.
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Certification In NSW under legislation only an accredited certifier can issue a certificate relating to building work. On this basis I have always provided Statements of Compliance rather than the always requested Certificate. I raised this issue with the lawyer. His advice was that anyone can issue a certificate and that the legislation applies only to the statutory certificates such as (in NSW) construction certificate, occupation certificate etc. I will still continue to issue statements of compliance, but it is useful to know that the term certificate can be used. Pro bono work Members from time to time may feel it appropriate to do work for no fee, but does this affect your liability? In the words of the lawyer, advice is advice. This means that whether you get paid or not you are liable for the advice given. Your PI insurance may also be affected. It would be wise to verify with your insurer what your policy covers. If the policy is in the name of your company and you provide advice as an individual, you may not be covered. Also bear in mind that PI insurance is not generally a renewable insurance, you obtain a new policy each year. This may also be with a different insurer. You should be aware of the conditions of your current policy. Conclusion The terms and conditions can be provided by either party but usually the entity paying the money will generally require their conditions to be used. But you do not and should not accept conditions with which you do not agree with or by which you cannot abide. The intent of this article is to inform you, so that if you are unhappy with a proposed agreement, you have some background knowledge to seek your own legal advice. I also cannot stress enough that the advice in this article is of a general nature, and you should seek your own advice relating to specific contracts. You may also find that your PI insurer will provide free advice on contracts which will save you legal fees.
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HOT APPS & WEBSITES
HOT APPS AND WEBSITES By Jen Barling
TOUCHLESS TECHNOLOGIES Touchless operations of lifts and doors as a result of changing attitudes to safety and hygiene can have flow on benefits for universal access. The ability to call a lift by voice before leaving the apartment or office is simple, convenient and touch-free. Alternatively, native lift mobile apps or integrated apps can provide this function. They can work with destination dispatch lift systems and don’t require people to scan a device or card at the lift kiosk. Lift manufacturers can also offer touch-free lift buttons which work with proximity sensors to call the lift. Most advanced lift systems now offer touchless integration points – for example Kone’s Remotecall, Schindler’s ElevateMe, OTIS’s ecall, or ThyssenKrupp’s Touchless Call.
KONE REMOTECALL For lifts equipped with the KONE RemoteCall System, the KONE RemoteCall App allows operation of the lifts in the building via phone. Once riders have selected the floor to which they are going, the KONE RemoteCall App will call a lift and guide the rider to the appropriate lift. You can see the lift position and progress while you are waiting
SCHINDLER ELEVATEME This application works with equipped Schindler Ahead lifts which display the ElevateMe logo and QR code near the lift door. ElevateMe allows use of the lift without touching it by scanning the QR code near the door and selecting the destination floor.
DORMAKABA BLUESKY BlueSky Access allows a mobile device to be used as a secure key. It can be used in hotels, multi-housing properties and seniors living properties that are equipped with dormakaba contactless electronic locks that have a Bluetooth Low Energy (BLE) radio antenna. The delivery of a key to a mobile device (phone, tablet) is enabled via a secure service. Once notification has been received and the BlueSky app has been installed, the mobile access key is sent to the app on that mobile device, allowing entry to those doors or areas to which access authorisation has been given.
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This publication (and any information and advice contained in it) is intended to be general information only. It is not intended to be comprehensive, and readers may not rely on it in relation to any specific matters in which they are involved. Such specific matters involving the subject of the articles and other information contained within this publication require the considered opinion of an expert in the field appraised of all the circumstances of the matter. It may also require legal or insurance advice from suitably qualified practitioners.
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