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.

Peter 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, 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 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 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

• Capella Capital

• Aurecon

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.

Architectus and HDR Rice Daubney were engaged to design the hospital by Lend Lease and the 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.

THE MATTERS THAT CAUSED THE COMPLAINT

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.

Peter Ryan, along with numerous other individuals and organisations on the Sunshine Coast 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.

• 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 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.

THE COMPLAINT

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 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.

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 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

• 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 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 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.

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:

1. A pedestrian surface being at grade with a roadway with no at surface warning being provided for someone who cannot see to warn of such a dangerous hazard apart from some bollards which he cannot see anyway; and

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

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 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.

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.

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

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

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 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

• 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 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. That 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. From 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. That 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. That 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. That 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. That the Respondent is directed to develop and implement a wayfinding strategy and design outcome to the entire hospital which does not disadvantage someone who is legally blind.

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. being 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. understand raised tactile and Braille signs inside lifts and at toilets; and

c. otherwise 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. and that all the above is reasonable.

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 accessible.

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 barrier

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 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 – 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 AS1428.1

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...