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BETWEEN: APPLICANT DT 6/2025 Applicant

AND: DIRECTOR-GENERAL, TRANSPORT CANBERRA AND CITY Respondent

TRIBUNAL: Senior Member P Hatami

DATE: 16 September 2025 ORDER The Tribunal orders that:

1. The application is dismissed.

……………Signed………… Senior Member P Hatami REASONS FOR DECISION Background 1. This is a disability discrimination complaint by Applicant DT 6/2025 (the applicant) against the Director-General, Transport Canberra and City Services (TCCS or the respondent) in relation to a fall the applicant experienced outside Kippax Fair shopping centre on 28 March 2024. The applicant filed a discrimination complaint in relation to this incident with the ACT Human Rights Commission on 19 May 2024. The complaint did not resolve at the Human Rights Commission and in accordance with section 53A of the Human Rights Commission Act 2005, it was referred to ACAT on 24 January 2025.

2. The applicant alleges that she tripped and fell on a displaced paver outside the Kippax Fair shopping centre. She says that the respondent has indirectly discriminated against her, as a person with a disability, and she seeks the following outcomes: (a) An apology from ACT Government, (b) Immediate compliance with their Disability Discrimination Act obligations to repair the uneven pavers outside Kippax Centre between the library and the side entrance of Kippax Centre adjacent to the post office. (c) $25,000.00 to compensate her for the humiliation and distress, physical and mental damage and harm done to her as an already disabled person of 69 years of age, including any further damage not yet apparent. The applicant’s case

3. In her complaint to the Human Rights Commission the applicant provides the following information: (a) that she is severely physically disabled with congenital ataxic spastic diplegia with associated severe bilateral hip dysplasia which has required bilateral hip implants. (b) She has ataxic spastic diplegia which is a balance disorder. (c) She cannot walk unaided and uses a mobility walker. The mobility walker blocks her view of terrain directly in front, but she regularly scans the terrain ahead to avoid any obvious trip hazards. (d) On Thursday 28 March 2024 she set out to go to the Kippax Mall Post Office. (e) She parked in a disabled parking area and set out towards the library crossing the paved area in front of the library to access the side entrance of the mall adjacent to the post office. (f) She noticed that there were many uneven pavers in this area and looked ahead and chose a path towards the side entrance of the mall, which appeared to her to be flat. (g) As she was moving towards the side entrance using the path she had identified to be flat, she suddenly lurched forward and fell heavily to the ground onto her knees on the concrete pavers. (h) She says that she was stretched out but still holding onto her walker. Her hands were twisted and painful. Her right foot was caught on the vertical displaced paver which was about at least one inch displaced. She felt like she was in shock and couldn’t move or get up. She believes that several people witnessed this incident but did not come to her aid. She shouted for help and a woman, who she later identifies as Amanda Angraves and her son, heard her and came running over to help her. (i) She told Ms Angraves that she would need help getting up and Ms Angraves and her son proceeded to assist her by helping her to stand and then walked her to a nearby bench. The applicant says that she was in pain, shock and felt very shaken up. She was unsteady and her heart was pounding. Her big toe was red, bruised and swollen and her knees were grazed and swollen. The ball of her right foot hurt and she thought she may have fractured her right big toe. She says that her hands hurt from holding on tightly to her walker when she fell thereby putting excessive force and strain on her hands. Her sandal was also broken, she says that this too occurred because of the fall. (j) The applicant then proceeded into the Kippax Fair shopping centre and into the post office where she asked an employee of the post office to take photographs of her injured toe and knees. She then proceeded to go into the Kippax Medical Centre to see if she could get an appointment with a doctor. (k) She saw a General Practitioner approximately 40 minutes after she had fallen. She says that the GP took her blood pressure, which was elevated, but advised her that she had not fractured anything or damaged her hip implants and advised her to go home. She asked the GP if she should go to hospital and she says that the GP told her no, that she should go home and take Panadol and rest. (l) She says that she was in a great deal of pain overnight and the following day felt progressively worse. She says she was in a daze, could barely move, felt her heart beating fast, felt dizzy and her knees were painful and more swollen. (m) She decided to go to the North Canberra Hospital. She relayed her concerns to the doctor that she had fractured right big toe, damaged her hip implants etc and the doctor ordered X-rays of her knees, hip, right foot and hand. The X-rays showed that she had not fractured anything nor damaged her bilateral hip implants. She was advised to follow up with her GP in five days, which she says she did. (n) On 1 April 2024 she notified the ACT government about the trip and fall through the Access Canberra Fix my Street website. (o) On 19 April 2024 she made a Freedom of Information Request to the respondent for all documents held from 28 April 2015 – 28 April 2024 in relation to the pavers between the Kippax Public Library and Kippax Fair including maintenance, repair, notifications, complaints, photos, videos etc.

4. The applicant says that the impact of this fall has disabled her even more. She says that she: felt shocked, distressed, embarrassed and humiliated to find myself suddenly on my knees, unable to get up. People around had obviously seen me fall but no one came to help me. I had to call out for help. I believe I will experience the impact of this trip and fall for many months if not years to come and hope that it will not cause me to have knee replacement or more hip implant surgery or similar earlier than I may otherwise need. Even though I did not actually hit my head on the concrete paver, I feel like my brain has been shaken due to the impact of my falling heavily on the hard concrete pavers. I have experienced increased tiredness, lingering dizziness, and some short-term memory loss. My already impaired balance due to congenital ataxia is worse now, I feel more unsteady, I seem to walk differently, and walking takes more effort. I feel less confident walking outside Kippax Mall, and along other public areas in Belconnen... I felt in a daze, very tired and in considerable pain for the next 5-7 days following my trip and fall. Even now I feel not quite right, different than I did before this trip and fall. It takes me longer to think, remember things, physically perform everyday tasks (standing up, cooking, getting out of bed, showering, getting dressed, and getting in and out of the car, shopping... My concentration has been affected. Overall, I am mentally and physically slower. I have more headaches, and bouts of dizziness.

5. In support of her complaint she has provided the following evidence: (a) A Discharge Summary from the Emergency Department at North Canberra Hospital dated 29 March 2024 including the following information: (i) Diagnosis – Contusion of multiple sites, (ii) Physical examination – there is pain over right wrist, right big toe, mild tenderness over left hip, left lower leg and knee (iii) X-ray requested – Nil obvious fracture seen. (iv) Hips prosthesis - Nil sign of dislodgment. (v) DDX – soft tissue injuries (vi) Plan – discharge home, Panadol if pain, rest, heat pack, GP follow up next week, return to Ed if any concern. (b) Consultation Notes recorded by Dr Adenike Balgoun at Kippax Medical Centre dated 28 March 2024 including the following information: (i) General: BP (sitting): 151/93. She reported she checked her BP with GP on 07/03/2024 and BP was normal, pulse 64, mild superficial skin grazing on left knee, no bleeding, right big toe mildly grazed also, no erythema, no swelling/deformity at the toe and knee, both knee and toe mildly tender to touch, normal range of movement, no focal neurological deficit. (ii) Reason for visit – Fall, skin grazing (iii) Actions: No wound dressing needed. Osteo Panadol 2 tablets 3 times daily for 3 days. (c) Photographs including: (i) Four photographs of pavers, (ii) Photographs of the right and left knees, (iii) A photograph of a right foot, (d) A USB stick with footage from outside Kippax fair capturing the applicant’s fall on the 28 March 2024

The CCTV Footage & Photographs

6. The CCTV footage of shows the applicant coming along the paved pedestrian area outside of Kippax Fair and shows her suddenly falling to her knees. It then shows two people running towards her to help her to her feet.

7. The CCTV footage shows that the applicant falls on a grey paver approximately 5 pavers from a blue paver.

8. The photographs of the pavers are taken from an angle showing the space between the pavers and there are also photographs looking down at the pavers.

9. The photograph of the alleged displaced paver is taken to show that the displaced paver is the third grey coloured paver after a blue coloured paver. This paver does appear to be slightly more raised than the paver on its left. There is another photograph taken looking down at an area of paving in front of the Chinese Inn and the Coffee shop.

10. There are two photographs showing the applicant’s knees. Without knowing what the applicant’s knees ordinarily look like, it is difficult for this Tribunal to assess whether they are swollen or otherwise injured in the photographs. The Tribunal prefers to rely on the medical evidence submitted by the applicant and accepts that evidence as describing with accuracy the condition of the applicant’s knees and right foot.

11. The applicant’s submission of 3 March 2025 provides that: (a) The failure of TCCS to provide an accessible working surface i.e. even, smooth, with minimal vertical displacements amounts to unlawful discrimination under s.23 of the DDA. The paved area between Kippax Library and the edge of Kippax Fair (the Chinese Inn) I walked across on 28 March 2024 was not DDA compliant. * To meet the DDA and Building Code of Australia, pedestrian surfaces must have a smooth transition. (b) But for TCCS’ negligence: failure to repair these uneven pavers which they had prior knowledge of, or put up a warning sign, I would not have tripped, fallen and hurt myself... (c) A person with a disability has a right to have access to places used by the public. The Disability Discrimination Act (DDA) makes it against the law for public places to be inaccessible to people with a disability. (d) Places used by the public include public footpaths and walkways. Every area and facility open to the public should be open and available to people with a disability. They should expect to enter and make use of places used by the public if people without a disability can do so... (e) To meet the DDA and Building Code of Australia, pedestrian surfaces must have a smooth transition. This applies to transitions/changes in surface materials where new and existing paths abut, service pit lids, and at the base of ramps etc. This means a 3mm tolerance for vertical edges, and 5mm for rounded edges (source: Access for people with disabilities). (f) I took photographs after the incident confirming that there were several significantly vertically displaced pavers, notably the one I tripped on (catching my right big toe) as over one inch displaced. (g) I went back to the area on Saturday 29 March 2025 and asked a passerby to take a video and measure the displacement of this paver. (h) The fact that there were significantly raised, and uneven pavers was known by TCCS. (i) There were numerous, continuous complaints made via Access Canberra (Fix My Street), via public consultations (Kippax Upgrade Community Feedback) prior to this incident complaint about the state of these pavers between Kippax Library and Kippax Fair, stating that this area had numerous places pavers which were uneven and potentially dangerous to walk on ranging dates from 2015-2024... (j) The fact that other falls had been reported is relevant to the issue that TCCS had “actual knowledge” of the particular risk and the materialisation of which resulted in the harm that rose from failure to carry out regular inspections of the area and follow its required maintenance schedule...

12. The applicant filed a statement with the Tribunal on 1 April 2025 setting out the details of her fall and resultant injuries consistently with those laid out in her complaint with the ACT Human Rights Commission. She also filed a statement dated 28 March 2024 from a Ms Amanda Angrave who was the passer by who came to the applicant’s aid after she had fallen.

13. The applicant submitted a letter from Dr Ross Newbery from University of Canberra Medical and Counselling Centre dated 20 March 2025. I have extracted the letter in full here because it provides a concise summary of the applicant’s medical conditions and what the applicant reported to Dr Newbery in relation to the fall and the injuries. The letter also provides a description of injuries observed by Dr Newbery in the weeks and months following the incident: I have treated [the applicant] at this medical centre since 7 July 2013. Prior to that date she had been previously seen at the health centre by other doctors since 2001. She has a lifelong condition of cerebral palsy with congenital ataxic spastic diplegia. This is a neurological condition which causes difficulty in walking, and in her case has caused bilateral hip joint dysplasia, which has then required multiple surgeries and eventually bilateral total hip replacements. These conditions impact her walking, coordination, and strength in her lower limbs. She has poor balance, requires walking aids to walk, and has also had increased swelling of her legs. rd She consulted with me on the 3 of April 2024 and gave a history of having tripped on displaced pavers in Kippax on 28 March 2024. She has suffered abrasions to her left knee, right big toe, and attended the emergency department after this had occurred. X-rays performed at that time showed no fracture. She describes extensive bruising and soreness in the hands and wrists. She felt severely jarred and explained that she was extremely distressed at this time. I reviewed the X-rays and confirmed there were no fractures visible, and there was still bruising apparent at that time. rd She was next reviewed by me on the 3 of June 2024. She reported that she felt less steady on her feet since this fall. She had continuing pain in her left knee, which had been slowly improving. On examination on this date, she had some swelling of the left anterolateral knee. th At the last review on 20 March 2025, the increased swelling of the knee had returned to normal, although she continued to have generalised bilateral leg swelling due to stasis oedema and previous surgeries. At this state there does not appear to be any further treatment indicated for her injury sustained on that day and no additional active treatment is planned.

14. The applicant filed further material with the Tribunal on 19 May 2025, the material includes what appear to be the applicant’s reporting of the issue with the pavers outside the Kippax Fair shopping centre through the Access Canberra st portal, two articles dated 30 and 31 March 2025 about the trip hazards caused by the pavers lifting at Charnwood shops, and an ACT government download last reviewed on 3 June 2024 about improvements planned for Charnwood shops setting out plans to repave areas of concern and plans to minimise root lift. The applicant says that this information shows that: (a) My trip and fall: Common problem throughout Canberra: Kippax Charnwood shops, footpaths in older suburbs; (b) TCCS’s failures to address issues with pavers lifting and causing trip hazards for pedestrians (especially aged/disabled/ outside the shops; (c) TCCS has prior knowledge of the issues with pavers lifting and causing trip hazards for pedestrians in the public space areas outside shops at Charnwood and Kippax. Despite this they have failed to repair uplifting pavers at Kippax and Charnwood in a timely manner.

15. The applicant also filed further submissions on 19 May 2025 setting out her legal arguments including authorities and how they relate to indirect discrimination. In her submissions and throughout the proceedings she cites from the Commonwealth Disability Discrimination Act 1992 (DDA).

16. In her submissions the applicant cites Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 and Travers v New South Wales [2001] FMCA 18. She says that these cases show that it is: against the law for public places to be inaccessible to people with disability... Every area and facility open to the public should be open and available to people with disability. They should expect to enter and make use of places used by the public if people without a disability can do so.

17. The applicant provides in relation to Access for All Alliance the Federal Magistrates Court found that: (a) The requirement or condition relating to the public toilets, namely that the wash basins were outside the toilet and not concealed from public view, was not reasonable, (b) The justifications for the placement of basins outside the toilets advanced by the respondent were ‘offset by the community expectation that persons with a disability should be entitled to complete a toileting regime in private. Suggested alternatives to being able to use the wash basins as part of a toileting regime (such as carrying ‘wet ones’ sponges, clean clothes and paper towels) were rejected by his Honour as ‘inadequate’. (c) Baumann FM accepted the relevance of the Building Code of Australia ‘as standards developed by technical experts in building, design and construction, the BCA and the Australian Standards are relevant and persuasive in determining... whether or not a requirement or condition is ‘reasonable’. His Honour accepted that the Australian Standards and the BCA were ‘a minimum requirement which may not be enough, depending on the context of the case, to meet the legislative intent and objects of the DDA’. In relation to the toilet facilities, Baumann FM found that the lack of any requirement under the Australian Standards or the BCA to provide an internal wash basin did not alter his finding as to unreasonableness. (d) His Honour found that the relevant condition was that members of the applicant use toilet facilities where wash basins were not concealed from view. He accepted that this condition could not be complied with by people with disabilities who were ‘required to undertake a careful toileting regime...which reasonably requires use of wash basins out of public view and in private.

18. The applicant then refers to the case of Travers v New South Wales [2001] FMCA 18 and says that: Similarly in Travers, the applicant was a 12 year old girl with spina bifida and resultant bowel and bladder incontinence. She claimed that she was denied access to an accessible toilet which was near her classroom. It was argued by the applicant that requiring her to use toilets further away from her classroom imposed a condition with which she was unable to comply because she was unable to reach the toilet in time to avoid a toileting accident. In considering an application for summary dismissal, Lehane J held that while it was not literally impossible for the applicant to comply with the condition, the consequences would have been seriously embarrassing and distressing. In those circumstances, the applicant was not able to comply with the requirement or condition in the relevant sense.

19. The applicant extracted a summary of the case of Hunter v State of Queensland [2015] QCAT 179 (18 May 2015), the summary reads in part: The tribunal found that the fingerprint process was prolonged, demeaning and intrusive. It was not reasonable to require a wheelchair user with a paralysed hand to undergo the process using the fixed cabinet scanning device. The device was not designed for that use and the requirement was not in accord with the published policies of the Police Service about dealing with vulnerable persons with disabilities. It was reasonable to attempt to obtain prints from a paralysed hand by manually opening fingers but unreasonable to repeat the process. Manually opening paralysed fingers several times amounted to indirect discrimination. The man experienced discomfort, physical stress on the body, embarrassment, degradation, humiliation and anger, but no ongoing effect on psychological or emotional functioning. He was awarded general damages of $8,000 for emotional distress and physical discomfort from the fingerprinting episode. The tribunal also suggested that the respondent should look at improving the system of physical access to the prosecutor’s office for people for (sic) mobility impairment.

20. In the cases cited by the applicant, the court has made a finding of indirect discrimination having found that a condition or requirement was imposed on the person with the disabilities that had or was likely to have the effect of disadvantaging the other person because of their disability.

21. The applicant has also provided what appears to be the catchwords for the case of Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180, similarly for Hollmann v the ACT Government (as represented by ACT Health Directorate CBR Health Services) [2023] ACAT 36 and Seniors and Disabilities Best Access Group v Commissioner of Main Roads [2025] FCA 424.

22. The applicant has referred to: (a) Eileen Joan Garvan v Australian Capital Territory [2003] ACTCA 4, a personal injury dispute, and included the following quote): In this case it was at a busy time that the plaintiff fell. She was chatting to a friend. It was open to the Master to have found not only that the defendant was responsible for the presence of the obstacle in City Walk (Garema Place) but also that the plaintiff was one of the specific group for whom it represented an unacceptable hazard. (citations omitted) (b) Ryde City Council v Saleh [2004] NSWCA 219, also a personal injury dispute and says that: ...of some public importance because it involves a council responsible for pavements. (c) Council of the City of Sydney v Hunter [2014] NSWCA 449, also a personal injury dispute.

23. It is not clear what she has quoted from here, but she provides a quotation at the end of these submissions of the 19 May 2025 as follows: These cases suggest that in claims involving trips on roads or footpaths plaintiffs should consider whether evidence of the following would be required: 1. The time or date when the hazard came into existence; 2. The history of prior incidents or complaints to the defendant; 3. The defendant’s obligations to inspect; 4. That a system of inspection which would have been effective in preventing injury to pedestrian was available that was not prohibitively expensive; 5. The extent to which the condition of the footpath warranted repair; 6. That the amounts allowed for in budgets for repair or maintenance were so insufficient as to amount to a breach of duty on the part of a defendant, regardless of the defendant’s other responsibilities and commitment. Ms Amanda Angraves’ witness statement and evidence at hearing

24. The applicant has submitted a witness statement from a Ms Amanda Angraves dated 28 March 2024 in which she says: ...me and my daughter witnessed an elderly woman, later identified as [the applicant] fall while using her walker due to the uneven paving in the area. I immediately approached to assist her, helping her stand and ensuring she was not in immediate distress. [The applicant] appeared very shaken and in pain but was able to move with the support of me and my daughter. After getting to her feet, she expressed that she needed to sit down. I assisted her in walking to a nearby bench, as she was in shock and experiencing pain when she sat down, I noticed her right sandal was broken, and i pointed it out to her. She looked down and observed that the Velcro strap had come undone due to her fall. At this point, she also noticed that her right big toe was bruised and swollen, and her knees were grazed and swollen. I asked if she was okay, and she responded that she was shaken but intended to go into Kippax fair immediately to see if she could get a GP appointment. Before parting, I provided her with my phone number in case she needed me and she said she would be in touch if needed. I then observed [the applicant] slowly walk towards Kippax fair. I later learned that she went to the post office, where an employee took photos of her injuries, and then proceeded to the GP clinic to seek medical attention. I confirm that the events outlined in [the applicant’s] chronology events (points 1 to X) are a true and accurate account of what occurred on that day. I am willing to provide further clarification or attend proceedings if required. Amanda Angrave 06/03/2025

25. At hearing Ms Angraves appeared by phone though the phone reception was poor and she lost connection several times. She was cross examined by the respondent’s counsel, but the cross-examination could not be completed because the phone reception made it difficult to effectively communicate.

26. In cross-examination and under oath Ms Angraves confirmed that the statement that she had given was accurate and maintained that her use of the roman numeral X in the sentence extracted below was intended to convey 10 and was not a place holder: I confirm that the events outlined in [the applicant’s] chronology events (points 1 to X) are a true and accurate account of what occurred on that day. Mr Twigley’s submissions

27. Mr Twigley appeared at hearing as a Makenzie friend for the applicant and made submissions on her behalf. Though a Makenzie friend is not at liberty to make 1 legal submissions, but can take notes and give non-legal advice, I allowed Mr Twigley who it was submitted was legally trained, to make submissions because the applicant was self-represented and the respondent had the benefit of legal representation from ACT Government Solicitor and Counsel.

28. The Tribunal is guided in the way it deals with an application by the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and in this instance this Tribunal was mindful of the following provisions: (a) section 7(b): to observe natural justice and procedural fairness; (b) section 23 (1): The tribunal may decide its own procedure at any stage in dealing with an application if no procedure is prescribed for the application under this Act or an authorising law; and (c) section 26: The Tribunal may inform itself in any way it considers appropriate in the circumstances.

29. Given the applicant was self-represented, discrimination law being complex and in circumstances where the respondent was so ably represented by Counsel and

1 McKenzie v McKenzie (1970) 3 W.L.R. 472 an instructing solicitor, the Tribunal decided that natural justice and procedural fairness would be best achieved by allowing the applicant’s friend, who had some legal training, to assist her in explaining to the Tribunal how her complaint met the requirements outlined in the Discrimination Act to be characterised as indirect discrimination.

30. Mr Twigley made the following helpful submissions to the Tribunal about whether a condition or requirement had been imposed upon the applicant by the respondent.

31. Mr Twigley’s submissions were: It appears that Mr Whitfield [the respondent’s counsel] is confusing or has misinterpreted two key aspects of the claim, and the first one is the conditional requirement imposed on [the applicant], and I'm submitting that the condition of the pavers caused an unacceptable risk for a disabled person. There was no signage and the maintenance had not been kept up-to-date. I submit it’s reasonable to expect the government to keep up to date with maintenance or to put up signs, and they did neither. [The applicant] was required, and in my submission, unreasonably, to make - I'm sorry - to walk over displaced pavers, and on that point I would make the submission that Mr Whitfield is not a witness, as such, what he says about where or which way [the applicant] walked is totally irrelevant. He is not an expert witness on walking and/or paths. It's inappropriate for him to make submissions about possible or theoretical scenarios, and I submit that those comments should be disregarded. It is an undisputed fact that [the applicant] tripped and fell on a displaced paver. She was injured. TCCS is the only body or entity responsible for the state of that paver. So that's the first point. My second point is that in regard to what's been said about the duty of care, that, in fact, TCCS does owe a duty of care under the DA. So there's a requirement they are not to discriminate against someone who is disabled, and as you have noted, member, the provisions of the DA reflect the DDA equally, and Mr Whitfield appears to have confused the Civil (Wrongs) Act liability claims with the DDA or the DA claims. They're not the same and it's not a matter in which [the applicant] has to prove the quantum of her loss.

32. The submission as the Tribunal understood it being that: (a) The respondent imposed a condition or requirement on the applicant which was to walk over displaced pavers. (b) The respondent owed the applicant a duty of care to keep the maintenance of the pavers up to date or to put up signage where the pavers were displaced.

33. Mr Twigley then went on to say that it was an undisputed fact that the applicant tripped and fell on uneven pavers- this is in fact in dispute. The respondent has maintained that the evidence submitted by the applicant in the form of photographs and CCTV footage does not support her submission that she fell on the pavers she has identified as being displaced.

34. Mr Twigley also submitted that the respondent owed a duty of care to the applicant.

The Respondent’s case

35. On 16 September 2024 the respondent replied to ACT Human Rights Commission in relation to the complaint put to them by the applicant. In their response, the respondent provides the background to their engagement with the issues raised with them through the Access Canberra Fix My Street portal. The respondent provides a background to the issue and gives specific responses to the questions put to them by the Human Rights Commission as follows: On 1 April 2024 at 4:29 [the applicant] lodged Fix My Street case #00411488 with Access Canberra advising there were vertically displaced pavers between Kippax Library and the Chinese Inn. In this request [the applicant] did not indicate that she had fallen or that she wanted to lodge a claim for compensation. [The applicant] logged her request as a ‘BBQ’s & picnic area request for cleaning, repair or maintenance’. As a result of the category in which the request was lodged, matter WR110419 was raised and was originally assigned to the Place Management and Graffiti team, prior to being referred to Roads ACT. On 3 April 2024, Roads ACT inspected the area and raised a work order for repairs to be undertaken as needed. This work was completed and Road Maintenance conducted the invoice inspection on 28 June 2024 noting that all work was complete and satisfactory. On 2 May 2024 [the applicant] lodged a Freedom of Information request for ‘all maintenance records, complaints, photos etc relating to the pavers between Kippax Public Library and Kippax Fair”. The attached documents were released to [the applicant] on 12 June 2024 and a copy is published on the TCCS disclosure log... The prioritisation of maintenance work is undertaken in accordance with the Roads ACT Operational Management Plan for Community Paths depending on the nature of the work required, location etc. Path maintenance was undertaken and recorded as satisfactory as at 28 June 2024, with any future works to be conducted in accordance with the Operational Management Plan for Community Paths, or as may be reported via Fix-My-Street. The ACT Government conducts regular inspections to identify areas that need maintenance, also responding to community Fix-My-Street requests. Where an issue has been identified through an inspection, or reported via Fix-My-Street, an inspection is undertaken within 10 business days and categorised as either needing immediate repairs, longer term repairs or both... Roads ACT has a path inspection program in place to identify and repair damaged footpaths in a number of suburbs. Approximately 32 priority suburbs were identified based on areas of high pedestrian activity and information obtained from the compensation claims database. Holt was included as a priority suburb and the area which [the applicant] fell is inspected every 2 years in accordance with the Roads ACT Operational Management Plan for Community Paths. The last inspection carried out at Kippax Fair prior to [the applicant’s] fall was in 2023. In addition to this, members of the public can make a request for service through the Fix-My-Street portal on the Access Canberra website or by phoning Access Canberra. These requests are then allocated and inspected by the appropriate team and repairs are scheduled, as needed... TCCS acknowledges that uneven pavers could cause access issues to persons with disability or older persons, where not maintained. The ACT Government manages and maintains approximately 3,190 kilometres of community paths across Canberra. These are a mixture of traditional concrete paths and asphalt off-road shared paths. Community path maintenances occurs throughout the year. This includes works on paths, pavers, kerbs and gutters on public land in accordance with the Roads ACT Operational Management Plan for Community Paths. Defects may arise between inspections due to a range of external factors, which are outside of TCCS’ control. It is not feasible that TCCS would be aware of all defects arising in between inspections, unless reported via the Fix-My-Street Portal or by phoning Access Canberra. [The applicant’s] Fix-My-Street request resulted in Roads ACT inspecting and actioning maintenance at the site in compliance with the Roads ACT Operational Management Plan for Community Paths. The rectification works were prioritised and completed in a timely manner to reduce the safety risk as well as to address any access restrictions to ensure the path could be used generally by all persons around the Kippax Fair location. TCCS is aware and acts compatibly with our obligations as a public authority under section 40B of the Human Rights Act 2004 when prioritising and carrying out roads’ maintenance works. Upon notification of the potential hazard, TCCS inspected the location and conducted maintenance work as soon as possible. [The applicant] reported the potential fall hazard via Fix-My-Street (1 April 2024) which was responded to by Roads ACT on 3 April 2024 to inspect the hazard. Maintenance works were scheduled and undertaken as a priority. [The applicant] refers in her complaint to works being undertaken in the area. TCCS infrastructure Delivery are undertaking verge, pavement and path works to the east of the library area, as identified within the blue dashed lines of the plans, available on the City Services Website and as captured in Attachment G. This work aims to improve accessibility of the paths and pavements leading towards the library. The area north of the library, between the library and Kippax Shopping Centre (where it appears [the applicant] is referring) is outside of the current work area.

36. Through their written and oral submissions, the respondent accepts that it provided a service for the purposes of the Discrimination Act to the applicant but does not accept that it acted unlawfully in the terms and conditions in which the services were provided. They say there was no condition or requirement imposed on the applicant to walk over uneven paving as there is no evidence that she tripped and fell on uneven paving and moreover, the respondent has provided disability accessible paths for people with mobility issues and given her extensive disabilities she might have chosen a disability accessible path. The respondent says that it must only take reasonable steps to ensure that specific classes or categories of members of the public are not discriminated against. The respondent says that it has discharged that obligation by the provision of smooth paths not consisting of pavers and installation of ramps, rails and other aids.

Ms Paula Ludvigson’s witness statement and evidence at hearing

37. Ms Paula Ludvigson is a claims officer employed by Roads ACT a business unit within TCCS. In her witness statement she reiterates the respondent's response to the ACT Human Rights Commission, and provides a summary of the dispute so far and adds: On 30 April 2025, I attend[ed] the Kippax Fair Shopping Centre. I noted there are multiple ways for the public to access the Post Office from either public carpark at the Kippax Fair shopping centre. I also noted that multiple options have been provided for people with limited mobility to access the shopping centre, for example, by pram ramps, flat paved areas, concrete paths etc.

38. Ms Ludvigson has annexed photographs of the area to her witness statement. The photographs do show that there are at least two types of pedestrian pathways in the area, one is paved with two different coloured pavers (grey and blue) and another path is constructed with concreted smooth pathways.

39. At hearing under oath, Ms Ludvigson responded to questions put to her and made a further observation being, that the applicant did not trip and fall over the paver she has photographed and which she says was uneven/raised. According to the CCTV footage that the applicant has submitted, she fell before she reached that paver. At hearing Ms Ludvigson said: So, when I attended the site one of the - with my role one of the things I do is investigate claims and have a look at the circumstances around how things have happened. So I try to find whatever it is in the photograph. In this case it was the - there was - you could see some of the pattern on the paving around the offending, the alleged offending paver. When I found where that was, and I watched the video footage that the applicant had supplied of her fall, I noticed that the front of the applicant’s walker hadn't quite come to, or was just about to come to the area where this photograph indicates the pavers were... I believe that, yes it was slightly in front of the applicant’s walker, so she hadn’t actually come to that particular paver and she had already fallen over. The Discrimination Act

40. Though the applicant refers to the Federal Disability Discrimination Act 1992 throughout her submissions, this matter was referred to the ACAT by the ACT Human Rights Commission as a complaint under the ACT Discrimination Act 1991 (Discrimination Act). The basis upon which the complaint has been brought by the applicant as indirect discrimination is comprehensively dealt with by the Discrimination Act, her complaint will thereby be dealt with by this Tribunal under that Act.

41. The Discrimination Act makes certain types of discrimination unlawful. To succeed in an action under the Discrimination Act, a complainant must establish that he or she has a protected attribute under section 7 of the Discrimination Act, has been subjected to an act of direct or indirect discrimination as described in the definition in section 8 of the Discrimination Act, and that the discriminatory act took place in an area of public life specified in Part 3 of the Discrimination Act.

42. ‘Disability’ is a protected attribute under section 7(1)(e) of the Discrimination Act. The applicant has a number of longstanding medical conditions which significantly impact her mobility, The Tribunal finds that the applicant has a disability which is a protected attribute for the purposes of section 7 of the Discrimination Act.

43. ‘Discrimination’ is defined in section 8 of the Discrimination Act to mean: (1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else. (2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes. (3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes. (4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances. (5) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include— (a) the nature and extent of any disadvantage that results from imposing the condition or requirement; and (b) the feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.

44. Section 53CA(2) of the HRC provides for the onus of proof where a complaint is referred to the ACAT about direct or indirect discrimination as follows: (1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by— (a) treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or (b) imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination). (2) It is a rebuttable presumption that discrimination has occurred if the complainant— (a) establishes that— (i) for a complaint about direct discrimination —the treatment or proposed treatment is unfavourable; and (ii) for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and (b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation— (i) for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or (ii) for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person. (3) The presumption under subsection (2) is rebutted if the respondent establishes that— (a) for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or (b) for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person. Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).

Indirect Discrimination

45. For indirect discrimination the complainant must establish that the respondent’s requirements had, or were likely to have, the effect of disadvantaging her. This must be based on evidence that enables the Tribunal to decide, in the absence of any other explanation, that the effect of disadvantaging her was because of her disability. The presumption may be rebutted if the respondent establishes that the requirement was reasonable in the circumstances, or that the effect of disadvantaging the applicant was not because of her protected attribute.

46. The words ‘effect’ and ‘disadvantaging’ are not defined in the Discrimination 2 Act. In Australian Capital Territory v Wang, the Tribunal adopted the following meaning of ‘disadvantage’ discussed in Prezzi, Patricia Anne and Discrimination 3 Commissioner: …While the term “disadvantage” might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines “disadvantage” as “absence or deprivation of advantage; any unfavourable circumstance or condition”. The primary meaning of “advantage” does not import comparison or means specially favourable to success, interest or any desired end. …It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant’s interests or are adverse to the complainant’s interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint.

47. The extent of relief that might be granted by the Tribunal is set out in section 53E of the HRC Act. It also sets out the matters to be considered when making an order if the Tribunal finds that discrimination has occurred. Section 53E(2) provides that the Tribunal must make one or more of the orders mentioned in the subsection, including that the person complained about pay a stated amount of compensation for any loss or damage suffered by the other person because of the discrimination.

48. The Tribunal’s power to make orders however is confined to section 53E(2) of the HRC Act: (2) The ACAT must make 1 or more of the following orders: (a) that the respondent not repeat or continue the unlawful act;

2 [2019] ACAT 65 at [185] 3 [1996] ACTAAT 132 at [22] and [24] and later approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 (b) that the respondent perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act; (c) unless the complaint has been dealt with as a representative complaint—that the respondent pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.

49. The applicant seeks the following relief: (a) An apology, (b) Immediate compliance with Disability Discrimination Act obligations to repair the area of uneven pavers outside Kippax Centre between the library and the side entrance to Kippax Centre adjacent to the Post Office, (c) $25,000 compensation for “humiliation, distress, physical and mental damage and harm done to me as an already severely disabled person of 4 my age (69) which includes any further damage not yet apparent.

Factual Findings

50. The applicant suffers from a range of medical conditions that significantly affect her mobility resulting in falls and she requires a mobility walker which she uses to support herself when she walks.

51. On 28 March 2024, the applicant fell to her knees outside Kippax Fair. She was assisted by two individuals to a standing position and helped to a bench nearby. She attended the medical centre inside Kippax Fair shopping centre shortly after her fall. The doctor who examined her found that she had grazed her knees and advised her to go home, take paracetamol and rest.

52. The applicant attended the North Canberra Hospital the following day, her knees, hips and hand were X-rayed. The X-rays did not identify any fractures or displacement of her hip implants. She was again advised to take pain relief and rest and to follow up with her GP.

53. Her GP of several years, examined the applicant a week after she had attended the North Canberra hospital and reassured her that the X-ray's did not show any

4 Applicant’s complaint to the ACT Human Rights Commission, 19 May 2024. fractures or displacement of her hip implants. He also states in his report that the applicant was experiencing pain, which she attributes to the fall on the 28 March 2024, for several weeks following the incident.

54. The Tribunal finds that the respondent attended to the Fix-My-Street report lodged by the applicant and repaired the raised paver.

55. Having viewed the CCTV footage of the fall and the applicant’s photographs of the raised paver, the Tribunal also finds that consistent with the respondent’s evidence, that the applicant’s fall occurred before she reached the uneven paver which she photographed and submitted as the paver on which she tripped and fell.

56. The Tribunal finds that pedestrians have the choice of two walkways in the area outside Kippax Fair shopping centre, one type of walkway is paved the other is uniform concrete walkway.

57. The Tribunal finds the evidence of Ms Amanda Angraves lacks credibility and has thereby not given it any weight. Though Ms Angraves’ evidence was not a determining factor in the Tribunal’s reasoning, for the sake of completeness the Tribunal provides the following reasons for not giving Ms Angrave’s evidence any weight: (a) Ms Angraves’ witness statement is dated 28 March 2024 appearing to have been prepared on the date of the incident, but at the bottom of the document it is dated again as 6 March 2025. It is not clear whether the intention of the first date is to give the impression that the document was prepared immediately after the incident and whether the subsequent date is included in error, or some other reason for this discrepancy. (b) In her statement Ms Angraves states that she and her daughter came to the applicant’s assistance, whereas the applicant has stated in at least two separate documents that Ms Angraves and her son came to her assistance. (c) Ms Angraves says that she saw the applicant fall and came to her aid, the applicant says that no one came to her aid until she called out for help. (d) Ms Angraves says that the chronology of events given by the applicant from point 1 to X are true and accurate. At hearing counsel for the respondent submitted that the X was there as a place holder until it was apparent how many points were included in the applicant’s statement, suggesting that Ms Angraves had not read the chronology she was attesting was true and accurate. While under oath Ms Angraves was cross examined, she said that she does not ordinarily use roman numerals though maintained that the X in this instance was supposed to be a 10, as in 1-X. This explanation seems highly unlikely given she has used the number 1 first.

58. It appears on balance that the respondent’s submission that Ms Angraves did not provide a truthful statement in this regard is correct and the reason for the X was as a placeholder until she was informed as to the number of paragraphs contained in the applicant’s statement. That she has not changed the X to a number suggests that she has not read the document she is attesting was true and correct. This interpretation is consistent with the fact that Ms Angraves and the applicant did not pick up on the significant discrepancy in their respective statements as to whether Ms Angraves’ son or daughter came to the applicant’s aid on 28 March 2024. Ms Angraves appeared to the Tribunal to be providing false information 5 under oath.

Was the applicant indirectly discriminated? Indirect Discrimination 6

59. In ACT v Wang the Appeal Tribunal identified the tests that must be met by a 7 complainant to establish indirect discrimination. These tests are: (a) The existence of a condition or requirement. (b) That the condition or requirement was imposed by a person (the respondent). (c) That the imposed condition or requirement had the effect of disadvantaging people with the attribute of the complainant. (d) That the effect of the disadvantage was caused by the attribute.

5 Section 703, the Criminal Code 2002 (ACT), making a false sworn statement in a legal proceeding is an offence of perjury 6 [2019] ACAT 65 7 ACT v Wang [2019] ACAT 65 at [162]-[163] (e) Whether the condition or requirement was reasonable in the circumstances.

60. According to her written submissions and the oral submissions made by her friend Mr Twigley, in so far as her complaint relates to the Discrimination Act, the applicant says that the respondent has imposed a condition or requirement on her which has had the effect of disadvantaging her because of her disabilities. She says that: The failure of TCCS to provide an accessible working surface i.e. even, smooth, with minimal vertical displacements amounts to unlawful discrimination under s.23 of the DDA Condition or requirement

61. A condition or requirement as stipulated in section 8(3) is not defined in the Discrimination Act. The Australian High Court has provided some guidance on what constitutes a condition or requirement. Their honours have said that expression ‘requirement or condition’ should be construed broadly to include any form of qualification or pre-requisite, although the actual requirement or 8 condition should be formulated with some precision.

62. The Tribunal must decide whether the respondent has imposed any qualification or pre-requisite on the applicant in navigating the area outside Kippax Fair shopping centre, which has disadvantaged her because of her disability. The terms qualification, pre-requisite, condition or requirement all suggest that the person with the protected attribute must submit to or is bound by the terms upon which the alleged discriminator provides access to the goods or services in question. In the cases cited by the applicant such as All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 where the applicant did not have access to any other basin facilities when using the public toilets, it was a condition or requirement in the use of the public toilets that the applicant use the facilities outside in full view of passersby which resulted in a disadvantage because of their protected attribute and the need that arose as a result of the attribute to complete complicated toileting regiment in private. In Travers v New South Wales [2001] FMCA 18, the 12 year old child suffered from a disability that resulted in her

8 Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, at 185, per Dawson J; at 195-196, per McHugh J; Waters v Public Transport Commission, at 393, per Dawson and Toohey JJ; at 406-407, per McHugh J. losing control of her bladder and bowels. By insisting that she use a toilet some distance from her classroom as opposed to the disability toilet near her classroom, the school was imposing a condition or requirement that resulted in a disadvantage to her. That is, though she could physically walk to the toilet father away, she was likely to lose control of her bladder and bowels and be humiliated. That case would have been decided differently if the applicant had a choice between the disabled toilet near her classroom but insisted on using one further away. 9

63. In Phillips v Australian Capital Territory the Tribunal found that the condition or requirement had been identified with the necessary degree of specificity, that the CTOW forms were a pre-requisite to the applicant accessing workers compensation: After Ms Phillips had submitted a medical certificate on 15 January 201968 Ms Frakes responded once again stating that the CTOW form was needed: “We are unable to process payments of workers compensation without this form”. Again on 14 February 2019 Ms Sillis sent an email that, among other things, insisted on the use of the form:“in order for this period of incapacity to be considered for approval as compensation by the insurer 10 we require a claim for time off work form to be submitted”. (citations omitted)

64. The absence of a reasonable choice in the circumstances is important. A condition or requirement suggests that something must be done in order for the person to 11 be able to have access to an area of public life. Indirect discrimination occurs when a condition or requirement is imposed as a pre-requisite to such access causing a disadvantage to a person because of their protected attribute. That is, the person with the protected attribute has no choice but to submit to or be bound by the terms upon which the alleged discriminator provides access to the goods or services and the terms cause a disadvantage because of the protected attribute.

65. In the present case the argument for indirect discrimination might be made if the entire area leading to Kippax Fair was constructed with uneven pavers and there were no other means of reaching Kippax Fair shopping centre or Kippax Post

9 (Discrimination) [2021] ACAT 22 10 Phillips v Australian Capital Territory (Discrimination) [2021] ACAT 22, [76] 11 Division 3.1 & 3.2, Discrimination Act 1991 Office. Or if there were signs directing all pedestrians to use the walkways that contained uneven paving. In such circumstances an applicant could argue that it is a condition or requirement for access to the area outside Kippax Fair shopping centre or to the shopping centre, that an individual can navigate uneven pavers. However, in this case the evidence shows that there are other disability accessible paths available to a pedestrian with mobility issues.

66. At hearing the applicant said that she should be able to walk across any area without being concerned that she might trip and fall. However, this expectation is not consistent with her evidence about the difficult disabilities with which she lives. In her ACAT Questionnaire 1 she says that she suffers from Ataxic Cerebral Palsy which she says: greatly affects my mobility and balance while walking ....[p]eople like me with cerebral palsy can fall due to imbalance issues and non-voluntary movements. I walk awkwardly and am unsteady on my feet. With increasing age (I am 70) I also have declining mobility which causes an even greater increase in the likelihood of falling.

67. The applicant quotes from a web source at www.cerebralpalsyguidance.com as follows: Cerebral palsy causes motor and mobility disabilities that increase the risk of having falls. Many of the symptoms of cerebral palsy affect balance and coordination. A study of nearly 400 people with cerebral palsy found that 86% had fallen in the last year... Many people with cerebral palsy have declining mobility as they age. With the decline of mobility comes a drastic increasing falls. However, people of all ages with cerebral palsy can fall due to imbalance issues and non-voluntary movements.

68. Given her considerable mobility challenges, it would appear to the Tribunal that it is reasonable for the respondent to expect that the applicant remains mindful of the possibility of tripping on paving whether displaced or otherwise, and ought to have chosen the even terrain to navigate her way to the Kippax Post Office.

69. In her submissions of 3 March 2025, the applicant states that: (a) The failure of TCCS to provide an accessible working surface i.e. even, smooth, with minimal vertical displacements amounts to unlawful discrimination under s.23 of the DDA. The paved area between Kippax Library and the edge of Kippax Fair (the Chinese Inn) I walked across on 28 March 2024 was not DDA compliant. * To meet the DDA and Building Code of Australia, pedestrian surfaces must have a smooth transition.

70. The provision of smooth, disability accessible pathways in this area by the respondent, addresses this concern. Reasonable adjustment

71. In her submissions the applicant also uses the term ‘reasonable adjustment’ to assert that the respondent has failed in his obligations and has indirectly discriminated against her as there was an uneven paver which she tripped on. She has not provided an explanation as to what reasonable adjustment she has requested that the respondent has failed to provide.

72. Section 74 of the Discrimination Act provides that: (1) A person must make reasonable adjustments to accommodate another person’s particular needs arising from a protected attribute if discrimination on the ground of the attribute is unlawful under this Act. (2) For subsection (1), an adjustment is not reasonable if it would cause unjustifiable hardship to the person making the adjustment. (3) Failure to make reasonable adjustments in accordance with this section is an unlawful act.

73. If the applicant’s assertion is that the reasonable adjustment which she sought related to the uneven paver, then her submission in this regard does not succeed given the respondent fixed the uneven paver once they received notification of this from the applicant through the Fix-My-Street online portal. The work was noted as satisfactorily completed on 28 June 2024 having been reported on 1 April 2024.

74. If however, her submission is that the respondent must ensure that all pavers across the ACT are even and have not been raised by tree root or otherwise, then the adjustment she seeks is not reasonable. The respondent cannot possibly ensure that each and every paver under its purview is always even.

75. In their letter of 16 September 2024 to the ACT Human Rights Commission the respondent states that: The ACT Government manages and maintains approximately 3,190 kilometres of community paths across Canberra. These are a mixture of traditional concrete paths and asphalt off-road shared paths. Community path maintenances occurs throughout the year. This includes works on paths, pavers, kerbs and gutters on public land in accordance with the Roads ACT Operational Management Plan for community paths. Defects may arise between inspections due a range of external factors, which are outside of TCCS’ control. It is not feasible that TCCS would be aware of all defects arising in between inspections, unless reported via the Fix-My-Street Portal or by phoning Access Canberra.

76. The respondent does have a responsibility to repair raised and damaged pavers and for implementing a system where such pavers are regularly inspected and or where pedestrians can report issues with pavers, but it cannot be expected to ensure that trees or other phenomena don’t affect the evenness of pavers at any given time and cause them to be raised. The respondent has a two-tiered system for ensuring that pavers are managed, it has a regular inspection regime and an online portal via which issues can be reported.

77. The Tribunal finds that these are reasonable and appropriate means of dealing with uneven pavers as they arise and the respondent has not failed to make a reasonable adjustment in the terms articulated by the applicant.

Personal Injury

78. The applicant has also raised claims of personal injury, negligence and has alleged that the respondent has failed in its duty of care. These submissions cannot be dealt with in these proceedings which were commenced via a referral by the ACT Human Rights Commission in relation to a discrimination complaint.

Disability Discrimination Act Access Guide 12

79. The applicant is correct in that the Disability Discrimination Act Access guide requires that: Every area and facility open to the public should be open and available to people with a disability. They should expect to enter and make use of places used by the public if people without a disability can do so.

12 Australian Human Rights Commission, D.D.A Access Guide, Ins and outs, accessed at https://humanrights.gov.au/our-work/disability-rights/dda-guide-ins-and-outs-access

80. The respondent has complied with this requirement by providing in the area outside Kippax Fair shopping centre disability accessible paths which have a uniform surface and are designed to be used by people with mobility issues. People with disabilities which affect their mobility have a choice between the paved areas and the smooth pathways, which path they choose is a matter for them based upon their assessment of their disability and which terrain they consider most suitable to their mobility issues.

Conclusion

81. The Tribunal finds that the respondent has not imposed a condition or requirement upon the applicant to navigate her way across uneven paving to reach the Kippax Post Office or the Kippax shopping centre, and therefore the applicant has not been indirectly discriminated against.

82. The Tribunal finds that the respondent has not discriminated against the applicant by failing to make a reasonable adjustment.

83. If I am wrong, the application also fails because the applicant has not provided evidence that she tripped and fell because of an uneven paver. The CCTV footage and the photographs she has submitted show that she fell at least two pavers before she reached the alleged uneven paver.

84. The Tribunal finds that the respondent is mindful of its obligations under the Discrimination Act and has ensured that the walkways around Kippax Fair include disability accessible paths.

85. The Tribunal finds that the respondent acted to fix the uneven paver that the applicant complained of through the Fix-My-Street portal.

86. The Tribunal regrets the applicant’s experience of falling and feeling hurt and humiliated. It is always distressing to fall but it must be particularly so for someone who has the range of disabilities that the applicant lives with.

87. Though the events of 28 March 2024 were clearly upsetting to the applicant, they do not constitute an instance of discrimination. For the reasons contained herein, the application is dismissed. Order The Tribunal orders that: 1. The application is dismissed.

……………Signed…………… Senior Member P Hatami

Date of hearing: 26 May 2025 Applicant: In person Respondent: ACT Government Solicitor Mr Stafford Whitfield of Counsel