Court concludes that complainant had been subject to indirect discrimination in access to hospital
Ryan as Personal Representative of the Estate of the Late Peter John Ryan v Sunshine Coast Hospital and Health Service [2021] FCCA 1537
Summary
On 11 January 2019, Mr Ryan made a complaint to the Australian Human Rights Commission. The complaint was terminated by the President of the Commission under s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) when conciliation was not successful. The proceedings were then brought before Justice Jarrett in the Federal Circuit Court.
Justice Jarrett decided that Mr Ryan (and others with a similar level of impairment) had been subject to indirect discrimination as a result of the design and construction of the Sunshine Coast University Hospital which required Mr Ryan to comply with a number of “requirements or conditions” which he was unable to satisfy in order to access or navigate the hospital.
Facts
Mr Ryan relevantly suffered from diabetic retinopathy, which is a degenerative condition affecting his sight. Around the time of the trial, he was left with only 2% vision, only able to make out shadows of people and objects. He is a person with a disability as it is defined in s 4 of the Disability Discrimination Act Act 1992 (Cth) (the Disability Discrimination Act) and is legally blind.
Mr Ryan used braille and tactile signage, tactile ground surface indicators, and wayfinding signage to assist with his mobility on a day-to-day basis. Mr Ryan also used a wheelchair for mobility.
Mr Ryan alleged the design and construction elements of the hospital required him to comply with a number of “requirements or conditions” in respect of his access to the hospital and its facilities. He said his inability to meet these “requirements or conditions” meant that the respondent had discriminated against him on the basis of his disabilities.
Mr Ryan claimed that:
by reason of ss 6(1) and 6(2) of the Disability Discrimination Act, the respondent had unlawfully discriminated against him;
the respondent also breached ss 23(b), 23(c), 23(e), 24(b), 24(c), and 31 of the Disability Discrimination Act; and
in several respects, the design or construction of the hospital did not meet the Disability (Access to Premises - Buildings) Standards 2010.
It was accepted by the respondent that the design and construction of the hospital discriminated against Mr Ryan in the way he claimed. As a result of concessions between the parties, the respondent agreed to undertake rectification works to address issues identified and accepted as defective, mainly to the exterior of the hospital.
Twelve items of rectification remained in dispute, concerning the ability of a person with vision impairment to navigate the interior of the hospital.
Decision
In summary, ss 23 and 24 of the Disability Discrimination Act provides that:
it is unlawful to discriminate against another person on the grounds of their disability by refusing to allow that person access to any premises that the public is entitled to use; and
it is unlawful for a person who provides goods or services, or who makes facilities available, to discriminate against another person on the grounds of their disability.
Section 6 provides that a person will be held to have indirectly discriminated against another person if:
the discriminator requires the aggrieved person to comply with a requirement or condition;
because of their disability, the aggrieved person cannot comply with the requirement or condition; and
the requirement or condition has or is likely to have the effect of disadvantaging persons with the disability.
Mr Ryan’s submissions were that the following were “requirements or conditions” which he was required to meet in order to access/navigate the hospital.
Access
Mr Ryan submitted that people wishing to access the hospital would need to be able to safely identify and access the emergency vehicle set down and passenger pick up/drop off areas, as well as the area leading to the main entrance of the hospital without assistance. He submitted that people with a similar vision impairment are unable to do so. The “requirement or condition” in this case is the ability to:
identify a hazard before walking into the hazard;
identify a path of travel into the main entrance without the risk of injury from such hazards; and
to do so without the need for direct assistance.
Signage
Despite a wayfinding strategy having been developed for the hospital based on the Queensland Health Wayfinding Design Guidelines 2010, many areas of the hospital did not contain raised tactile and/or Braille signage that could be accessed by those with a vision impairment.
On this basis, Mr Ryan submitted that this imposed a “requirement or condition” that those wishing to access and navigate the hospital must do so without the assistance of such signage.
Wayfinding system
Similarly, Mr Ryan submitted that it is a “requirement or condition” that people wishing to access/navigate the hospital and its facilities must be able to do so without the assistance of a functional wayfinding strategy.
The Court placed particular emphasis on the word “functional”, and it found that the wayfinding strategy in place was not functional for people with vision impairments.
Conclusion
Justice Jarrett found that the design and construction of the hospital imposed the alleged requirements on Mr Ryan.
Disparate impact
The Court was then required to decide whether a person subject to the requirements or conditions would be able to comply with them. The authorities on this question authorise a “broad and liberal approach”, and the question is not whether one can technically or physically comply, but whether they would suffer serious disadvantage by doing so.
It is also relevant to consider whether one can comply reasonably, practically and with dignity (Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 and Travers v New South Wales [2001] FMCA 18).
Mr Ryan submitted that people with similar disabilities will face an adverse impact as they are not as easily able to satisfy the above requirements as those without disabilities.
Justice Jarrett accepted that Mr Ryan was at a serious disadvantage. This was because he was in a position where he was required to access and navigate the hospital without the assistance of sufficient raised tactile signage or a functional wayfinding strategy, and he therefore could not reasonably, practically and with dignity comply with the requirements.
Reasonableness
The Court also had to decide whether the imposition of the above requirements was reasonable. The test of reasonableness is an objective test. The Court weighed the nature and extent of the discriminatory effect against the reasons in favour of the condition or requirement (Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251; Waters v Public Transport Corporation (1991) 173 CLR; Catholic Education Office v Clarke (2004)138 FCR 121).
Mr Ryan submitted that he was excluded from using the hospital safely and with dignity on the basis of his disability, and he was unable to access the hospital on the same terms as people who do not have his disability.
Justice Jarrett held that the requirements were not reasonable.
Rectification
Mr Ryan submitted that the hospital should undertake various rectification works to address the accessibility issues for people similar disabilities. The main objectives of the rectification works were:
In regard to wayfinding, for the bollards at the entrance to the hospital to be painted black, and the hospital’s seats and columns to be refinished so as to achieve 30% luminance contrast. These works would improve wayfinding for people who are blind or have a vision impairment.
In regard to signage, for all directional signage at an accessible height to be replaced with signage containing raised tactile and Braille, and for all relevant signage to provide 30% luminance contrast between letters/symbols and the background.
Justice Jarrett found that rectification was appropriate.
Commentary
The Court concluded that Mr Ryan, and others with a similar level of impairment, had been subject to indirect discrimination in access to the hospital in contravention of ss 23 and 24 of the Disability Discrimination Act. This case is an important example of indirect discrimination and how the Disability Discrimination Act can be used to uphold the rights of people with disabilities to be free from discrimination.
The full case can be read here.
Caitilin Watson is a Special Counsel and Nathan Hedges is a Graduate at Law at Wotton and Kearney.