VALERIE JOAN SMITH v AIR NEW ZEALAND LTD CA514/2009 18 February 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA514/2009

[2011] NZCA 20

BETWEEN VALERIE JOAN SMITH

Appellant

AND AIR NEW ZEALAND LIMITED

Respondent

Hearing: 18 and 19 August 2010

Court: O?Regan P, Chambers and Ellen France JJ

Counsel: F Joychild and D Peirse for Appellant

A H Waalkens QC for Respondent

D G Collins QC and M C Coleman for Attorney-General as Intervener

A S Butler and S A Bell for Human Rights Commissioner as

Intervener

Judgment: 18 February 2011 14:30:00

JUDGMENT OF THE COURT

A The appeal is dismissed.

B Costs are reserved.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No.

Introduction [1]

Background [6]

The facts [6]

The decisions of the Tribunal and the High Court [11]

The approach to s 44 [13]

The test in s 52 [41]

The application of s 52 to the present case [62]

The approach in the Tribunal and in the High Court – the arrangements

for domestic travel [65]

The approach in the Tribunal and in the High Court – the arrangements

for international travel [67]

The submissions [71]

Our evaluation [73]

Disposition [98]

Introduction

[1] Valerie Smith, the appellant, needs supplementary oxygen for health reasons

when she flies. In mid-2002 Ms Smith made a claim under the

Human Rights Act 1993 (the Act) about the way in which Air New Zealand Ltd

accommodated her requirements for additional oxygen on domestic and international

flights.

[2] Ms Smith‟s claim was heard by the Human Rights Review Tribunal. The

Tribunal concluded that Air New Zealand had discriminated against Ms Smith on the

basis of disability when it required her to organise and pay for her own oxygen

support on domestic flights and in charging her for the oxygen supplied on

international flights. Air New Zealand had therefore breached s 44 of the Act which

makes it unlawful for the provider of services to “treat any other person less

favourably” in relation to the provision of the service than would otherwise be the

case “by reason of” her disability. However, the Tribunal found, such prima facie

unlawful discrimination was within the exception provided by s 52 of the Act. In

terms of s 52 it is not a breach of s 44 if the service is provided on more onerous

terms where the disability requires the services to be provided in a special way and

the provider “cannot reasonably be expected” to provide the service “without

requiring more onerous terms”.1

[3] Ms Smith appealed to the High Court against the finding s 52 applied to

protect Air New Zealand‟s actions.2 Air New Zealand cross-appealed against the

1 Smith v Air New Zealand Ltd (2005) 8 HRNZ 86.

2 There was also an issue about the Tribunal‟s decision on costs which is not relevant now.

decision that it had breached s 44. The High Court allowed Air New Zealand‟s

appeal and concluded that Air New Zealand had not discriminated against

Ms Smith.3

[4] The High Court subsequently granted Ms Smith leave to appeal to this

Court.4 Leave to appeal was granted to consider whether the High Court was wrong

in the following respects:

1 ... in holding that the construction of a comparator group involves

considering the position of passengers who wish to bring onto flights

with [Air New Zealand] objects that give rise to equivalent (to oxygen)

safety issues and that those persons would face restrictions imposed by

[Air New Zealand] and that on that basis a comparison with those

persons would suggest that [Air New Zealand] was not discriminating

against [Ms Smith] ... .

2 ... in analysing the question of discrimination on the grounds of

disability by including disabled people within the comparator group ... .

3 ... to hold that by reference to the comparator group it suggested the

different treatment of [Ms Smith] arises not because of disability but

because of the safety implications of responding to the needs of the

disabled person ... .

[5] It is convenient for us to address these questions by considering, first, the

approach to s 44, secondly, how any comparison should be made between

Ms Smith‟s position and those of other recipients of Air New Zealand‟s service and,

finally, the test established by s 52. We deal with each issue in turn but first we need

to say a little more about the background.

Background

The facts

[6] Ms Smith suffers from a genetic condition known as Ehlers Danlos

Syndrome (EDS). In her case, EDS limits the expansion of her chest and the ability

of her breathing muscles to move air into and out of her lungs. Since 1997 she has

required supplementary oxygen when flying.

3 Smith v Air New Zealand Ltd (2008) 8 HRNZ 639 (HC).

4 Minute of 29 July 2009.

[7] Prior to 2002, Air New Zealand supplied and charged for the cost of

supplementary oxygen to passengers who required it on a pre-planned basis (that is,

other than in unexpected emergencies) on both domestic and international routes.

Following a working party in which Ms Smith was involved, in October 2002

Air New Zealand stopped supplying additional oxygen on domestic flights. Instead,

the passenger became responsible for supplying this oxygen. For safety reasons,

Air New Zealand required the oxygen cylinder and associated equipment to be

obtained by the passenger from an approved provider, namely BOC Gas Ltd. As at

the date of hearing before the Tribunal in 2002, the additional costs for Ms Smith on

her domestic fare were a minimum of $68.50 with additional costs if transport of

cylinders to the airport was required (around $20 each way) and additional cylinders

needed ($21.81 each).

[8] Air New Zealand continued to supply supplementary oxygen on international

flights at a charge to the passenger of US$75 per sector. Thus, on a trip to

Melbourne in 1999, Ms Smith paid an additional NZ$298 for the flight to cover the

oxygen. Oxygen was supplied by cylinder. We interpolate here that, prior to 1998,

for long haul flights a large cylinder of about 3000 litre capacity was used. The

cylinder occupied the space of about two seats on a 767 aircraft and three seats on a

747 aircraft. Air New Zealand charged extra for the seats taken up by the cylinders.

More compact oxygen concentrators powered by aircraft electricity were introduced

in 1998.

[9] Ms Smith‟s complaint related to her flight with Air New Zealand to

Melbourne in December 1999. Her complaint also raised issues about the way in

which her oxygen needs were met in terms of the support she received from Air New

Zealand staff and an associated criticism about staff training. The latter aspects are

not relevant on appeal.

[10] The Director of the Human Rights Commission agreed to provide Ms Smith

with representation under s 90 of the Act and a notice of proceedings and

accompanying statement of facts were filed on Ms Smith‟s behalf with the Tribunal

in August 2002. Various declarations were sought by way of relief along with

damages and some reimbursement of costs.

The decisions of the Tribunal and the High Court

[11] The key to the Tribunal‟s conclusion that there was a breach of s 44 was that

it is an integral part of Air New Zealand‟s travel service to provide the oxygen its

passengers need to maintain life and health when at altitude. The Tribunal

considered the position with oxygen was not like that relating to the supply of

medicines because everyone needs oxygen and it is supplied to everyone.

Accordingly, people are treated equally when they get the oxygen they need even if

the cost to Air New Zealand is greater for some than others. Therefore, in requiring

some to pay a supplement or to supply some part of their own oxygen,

Air New Zealand treats those persons less favourably than those who do not have to

pay or part supply. The Tribunal was, however, satisfied that Air New Zealand‟s

conduct came within the exception in s 52. We come back to the detail of that

conclusion later.

[12] The High Court concluded that Air New Zealand did not treat Ms Smith less

favourably by reason of her disability and so did not discriminate against her

unlawfully as prohibited by s 44(1)(b). The Court went on to consider s 52 and on

that aspect agreed with the Tribunal‟s conclusion that Air New Zealand had acted

reasonably.

The approach to s 44

[13] Section 44 is found in Part 2 of the Act which deals with unlawful

discrimination. Under the overall heading of “Discrimination in provision of goods

and services”, s 44(1) provides as follows:

44 Provision of goods and services

(1) It shall be unlawful for any person who supplies goods, facilities, or

services to the public or to any section of the public --

(a) to refuse or fail on demand to provide any other person with

those goods, facilities, or services; or

(b) to treat any other person less favourably in connection with the

provision of those goods, facilities, or services than would

otherwise be the case,--

by reason of any of the prohibited grounds of discrimination.

Disability, as defined in s 21 of the Act, is a prohibited ground of discrimination.

[14] Section 44(2) expands on the definition of “facilities”. Sections 44(3) and (4)

deal with the provision of services by clubs. Various exceptions follow, for example,

in relation to public decency or safety5 and insurance.

6 Section 52 provides a more

general exception in relation to disability and reads as follows:

52 Exception in relation to disability

It shall not be a breach of section 44 of the Act for a person who supplies

facilities or services--

(a) to refuse to provide those facilities or services to any person if--

(i) that person‟s disability requires those facilities or services

to be provided in a special manner; and

(ii) the person who supplies the facilities or services cannot

reasonably be expected to provide them in that special

manner; or

(b) to provide those facilities or services to any person on terms

that are more onerous than those on which they are made

available to other persons, if--

(i) that person‟s disability requires those facilities or services

to be provided in a special manner; and

(ii) the person who supplies the facilities or services cannot

reasonably be expected to provide them without requiring

more onerous terms.

[15] Other forms of discrimination are then dealt with, namely, racial disharmony,

sexual and racial harassment. Those sections are followed by s 65 which deals with

indirect discrimination. This section provides that:

65 Indirect discrimination

Where any conduct, practice, requirement, or condition that is not apparently

in contravention of any provision of this Part has the effect of treating a

person or group of persons differently on 1 of the prohibited grounds of

discrimination in a situation where such treatment would be unlawful under

any provision of this Part other than this section, that conduct, practice,

condition, or requirement shall be unlawful under that provision unless the

5 Section 46.

6 Section 48.

person whose conduct or practice is in issue, or who imposes the condition

or requirement, establishes good reason for it.

[16] The case for the appellant, supported by the Human Rights Commission, is

that s 44 means that those providing public services have to accommodate those with

disabilities unless it is reasonable not to do so in terms of s 52. Air New Zealand

argued that there had been no discrimination in terms of s 44, so that the case turned

on its obligations under that section, without the need to engage with s 52. The

Solicitor-General also focused on the s 44 obligation.

[17] We consider the appellant and the Commission are correct. When the two

sections, ss 44 and 52, are read together, the effect is that service providers to whom

the Act applies will have to provide services to a person with a disability or treat

those persons no less favourably in connection with the provision of those services

subject to a reasonableness requirement.7 Another way of putting this is that s 52 is

definitional because it tells us what less favourable treatment means in cases of

disability. In our view, this is the effect of the statutory scheme.

[18] In terms of the statutory scheme, we start with the long title to the Act. That

states that one of the purposes of the Act is the provision of better protection of

human rights in New Zealand “in general accordance with United Nations Covenants

or Conventions on Human Rights”. There are a range of international instruments

which protect the right to freedom from discrimination.8 More recently, in 2008,

New Zealand ratified the United Nations Convention on the Rights of Persons with

Disabilities (UNCRPD). The UNCRPD incorporates the concept of reasonable

accommodation, ie, the notion that services must be provided to the disabled unless

it is not reasonable to do so. Article 2 of the UNCRPD provides as follows:

“Discrimination on the basis of disability” means any distinction, exclusion

or restriction on the basis of disability which has the purpose or effect of

impairing or nullifying the recognition, enjoyment or exercise, on an equal

basis with others, of all human rights and fundamental freedoms in the

political, economic, social, cultural, civil or any other field. It includes all

forms of discrimination, including denial of reasonable accommodation;

7 There are additional exceptions such as that in s 45 in relation to courses and counselling but

none of those are relevant in the present case. 8 For example, the Charter of the United Nations 1945; the International Covenant on Civil and

Political Rights 1976; the International Covenant on Economic, Social and Cultural Rights 1976;

and the Convention on the Elimination of All Forms of Racial Discrimination 1969.

“Reasonable accommodation” means necessary and appropriate

modification and adjustments not imposing a disproportionate or undue

burden, where needed in a particular case, to ensure to persons with

disabilities the enjoyment or exercise on an equal basis with others of all

human rights and fundamental freedoms; ... .

[19] Article 4 of the UNCRPD sets out the obligations on the States parties to the

UNCRPD which include an obligation:

(e) To take all appropriate measures to eliminate discrimination on the basis

of disability by any person, organization or private enterprise; ... .

[20] The rationale behind the concept of reasonable accommodation is explained

in a number of the cases dealing with complaints based on disability. Two examples

suffice. First, McHugh and Kirby JJ in Purvis v New South Wales (Department of

Education and Training) made the observation that disability discrimination was

different from other types of discrimination such as gender or ethnicity in that its

elimination was more likely to need positive accommodations.9 McHugh and

Kirby JJ continued:10

[86] ... Disability discrimination is also different from sex and race

discrimination in that the forms of disability are various and personal to the

individual while sex and race are attributes that do not vary. The elimination

of discrimination against people with disabilities is not furthered by, “equal”

treatment that ignores their individual disabilities. The Act imposes a prima

facie requirement on persons falling within its terms to accommodate the

disabilities of each disabled person in order to achieve real – not notional –

equality. In this context, “accommodation” means the making of suitable

provision for the disabled person. It includes, but it is not limited to, the

provision of residential or business accommodation. It is used in the sense

that a banker uses the term when accommodating a customer‟s application

for a loan.

[21] Secondly, we refer to similar comments in the Supreme Court of Canada in

Eaton v Brant County Board of Education,11

where Sopinka J discussed the main

object of some of the prohibited grounds, namely, the elimination of discrimination

as a result of the attribution of stereotypical characteristics. Of disability, Sopinka J

said:

9 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62, (2003) 217

CLR 92 at [86]. 10

See also Gummow, Hayne and Heydon JJ at [199] who refer also to the different premise

underlying disability legislation. 11

Eaton v Brant County Board of Education [1997] 1 SCR 241.

[67] ... this is one of the objectives. The other equally important

objective seeks to take into account the true characteristics of this group

which act as headwinds to the enjoyment of society‟s benefits and to

accommodate them. The exclusion from the mainstream of society results

from the construction of a society based solely on “mainstream” attributes to

which disabled persons will never be able to gain access. Whether it is the

impossibility of success at a written test for a blind person, or the need for

ramp access to a library, the discrimination does not lie in the attribution of

untrue characteristics to the disabled individual. The blind person cannot see

and the person in a wheelchair needs a ramp. Rather, it is the failure to make

reasonable accommodation, to fine-tune society so that its structures and

assumptions do not result in the relegation and banishment of disabled

persons from participation, which results in discrimination against them ... It

is recognition of the actual characteristics, and reasonable accommodation of

these characteristics which is the central purpose of s 15(1) [of the Canadian

Charter of Rights and Freedoms] in relation to disability.

...

[69] It follows that disability, as a prohibited ground, differs from other

enumerated grounds such as race or sex because there is no individual

variation with respect to these grounds. However, with respect to disability,

this ground means vastly different things depending upon the individual and

the context. This produces, amongst other things, the “difference dilemma”

referred to by the interveners whereby segregation can be both protective of

equality and violative of equality depending upon the person and the state of

disability.

[22] It is fair to say the UNCRPD is largely aspirational. However, its relevance

in terms of this case arises because, to a considerable extent, it gathers together in

one place the various protections previously scattered amongst a range of

instruments. Further, the notion of reasonable accommodation reflects the sorts of

matters highlighted in the extracts from Purvis and Eaton.

[23] The appellant and the Commission also rely on the legislative history relating

to New Zealand‟s ratification of the UNCRPD. Prior to ratification, the extent to

which New Zealand legislation complied with the terms of the UNCRPD was

reviewed. Various changes to the Human Rights Act were enacted to ensure

compliance but no change was made to s 52.12

[24] The point made by the appellant and the Commission is seen in the

departmental report prepared by the Office for Disability Issues with the Ministry of

Social Development and the Ministry of Justice in relation to the Disability

12

Human Rights Amendment Act 2008 (introduced as part of the Disability (United Nations

Convention on the Rights of Persons with Disabilities) Bill 2008).

(United Nations Convention on the Rights of Persons with Disabilities) Bill 2008. In

explaining the changes made by the Bill to Part 2 of the Human Rights Act, the

report notes:

80 ... While Part 2 of the Human Rights Act 1993 arguably also contains

a requirement to provide reasonable accommodation in the areas to

which it applies, it is considered that amendments would be useful to

mitigate any risk of ambiguity in the areas in question.

...

83 There is no explicit definition of “reasonable accommodation” in the

Human Rights Act 1993. Rather, the Human Rights Act 1993 applies

the concept of reasonable accommodation in specific contexts to

clarify rights and obligations. These include, for instance, areas such

as employment or the provision of goods and services. In this respect,

the Human Rights Act 1993 provides for an individual proportionality

analysis on a case by case basis, with a focus on the type of

accommodation requested against the requisite burden on the

individual.

...

[25] The amendments in the 2008 Bill were designed, this suggests, to remove

ambiguity about the extent to which the reasonable accommodation concept was

already reflected in the Act. It was not seen as necessary to amend s 52, although

changes were made to the other exceptions for disability in ss 56 and 60. The

National Interest Analysis on the UNCRPD, appended to the report of the Justice and

Electoral Committee on the 2008 Bill, similarly said:

73 There is uncertainty whether the Human Rights Act 1993 fully

implements the obligation prescribed in the Convention to “prohibit

all discrimination on the basis of disability and guarantee to persons

with disabilities equal and effective legal protection against

discrimination on all grounds.” The definition of discrimination

includes the denial of reasonable accommodation.

[26] There are dangers in drawing too much from this sort of material in the

present context and the fact the 2008 Bill and ratification of the UNCRPD post-date

the events in Ms Smith‟s case adds an additional complexity. But certainly it can be

said that this part of the legislative history at least is consistent with the approach we

prefer.

[27] We turn then to the wording of s 44. In this context, we need to address the

argument that our approach does not give any meaning to the words “less

favourably” or the words “by reason of” in the section. The reference to less

favourable treatment suggests a comparative element and the reality is there will be

less of a role for a comparative analysis if the obligation is that of reasonable

accommodation. The focus shifts rather to the defence in s 52.

[28] Tipping J in McAlister v Air New Zealand Ltd13

made the point that

discrimination in general terms involves a person being treated differently from

someone in comparable circumstances.14

And the Supreme Court in McAlister was

clear that a comparator is required at least where the section in question has a

comparison inherent in the definition of discrimination, in that case, as in s 104(1)(a)

and (b) of the Employment Relations Act 2000.15

McGrath J however was of the

view that some sections outlawing discriminatory conduct do not require a

comparison. His Honour said that under such sections, an action is discriminatory

merely by reason of being taken on a prohibited ground.16

[29] In Purvis v New South Wales, Gummow, Hayne and Heydon JJ observed that

concepts of “difference”, “disability” and “disadvantage” depend upon

comparisons.17

Their Honours went on to say that the Disability Discrimination Act

1992 (Cth) did not then contain provisions like those in the United Kingdom

equivalent which expressly obliged employers and educational authorities to make

“reasonable adjustments” to accommodate persons with disability.18

McHugh and

Kirby JJ put this point in the following way:

[104] ... No matter how important a particular accommodation may be for a

disabled person or disabled persons generally, failure to provide it is not a

breach of the Act per se. Rather, s 5(2) has the effect that a discriminator

does not necessarily escape a finding of discrimination by asserting that the

actual circumstances involved apply equally to those with and without

disabilities. No doubt as a practical matter, the discriminator may have to

take steps to provide the accommodation to escape a finding of

discrimination. But that is different from asserting that the Act imposes an

obligation to provide accommodation for the disabled. 13

McAlister v Air New Zealand Ltd [2009] NZSC 78, [2010] 1 NZLR 153. 14

At [51]. 15

See at [33] per Elias CJ, Blanchard and Wilson JJ and at [69] per Tipping J. 16

At [105]. 17

At [201]. 18

At [203].

[30] Three points can be made about this aspect. The first is that the

Supreme Court in McAlister acknowledged the need to look at all aspects of the

statutory scheme including the inter-relationship between the protection given to the

particular ground of discrimination in issue and any defences available to the person

against whom the discrimination is alleged.19

[31] The second point is that although in the present case as we shall see not a

great deal of work is left to the comparative exercise that is not necessarily always

going to be the position. There are a range of disabilities and a range of potentially

prejudicial actions. One illustration of a different case from this one is that where

the service provider does not provide the service because he or she does not want a

disabled person to be able to use the service. In such a situation, the primary focus

of the inquiry will be on whether the disabled person is treated less favourably under

s 44.

[32] Finally, in terms of Purvis, it is necessary, as the Supreme Court observed in

the context of consideration of the comparator in McAlister, to keep in mind the

different statutory provisions in issue.20

In our view, the different approach in that

case reflects the different wording of the Australian statute.21

[33] Returning to the detail of the statutory scheme, the wording of s 52 also

supports our approach. The exception it creates applies to excuse the provision of

services when that is too onerous. That suggests an inherent requirement to

accommodate otherwise ie where accommodation is not too onerous.

19

At [34]. 20

At [34]. 21

The provision considered in Purvis provided as follows:

(1) For the purposes of this Act, a person (“discriminator”) discriminates against

another person (“aggrieved person”) on the ground of a disability ... if, because of

the aggrieved person‟s disability, the discriminator treats or proposed to treat the

aggrieved person less favourably than, in circumstances that are the same or are

not materially different, the discriminator treats or would treat a person without the

disability.

(2) For the purposes of subsection (1) circumstances in which a person treats or would

treat another person with a disability are not materially different because of the

fact that different accommodation or services may be required by the person with

the disability.

[34] Further, the premise of the exceptions in subss (a) and (b) is that the person‟s

disability requires the services to be provided “in a special manner”. Given that s 52

is an exception to s 44, that suggests there is a requirement in s 44 to provide

services in a special manner.

[35] We note that Brennan J in Waters v Public Transport Corp22

was not attracted

to this argument in the context of a disability case under the Victorian Equal

Opportunity Act 1984. The claim was that the removal of conductors from trams

and the imposition of a particular kind of ticket discriminated against disabled

persons. Because it exemplifies the contrary view, it is helpful to cite his Honour‟s

observation that:23

The difficulty encountered by disabled people who wished to use the modern

trams arose simply because the services available fell short of their needs. If

such shortfalls in a service can be transformed into a requirement or

condition imposed by the person performing the service, the Act becomes a

charter of the minimum standards of service which a person performing the

service must provide or at least maintain to cater for the needs of the

disabled. That is not the purpose of the Act.

Brennan J was concerned that anti-discrimination legislation not be asked to “carry a

traffic it was not designed to bear”.24

[36] The issue is not without difficulty. We note that in Victoria the legislation (in

terms similar to the New Zealand statute) was amended following two review

exercises both of which recommended including a specific requirement to make

reasonable adjustments in relation to disability.25

[37] The final aspect of the statutory scheme to which we refer is s 65. The

appellant and the Commission in particular make a link between s 44 and the

prohibition on indirect discrimination in s 65. There is certainly force in the

argument that s 65 aids in the interpretation of the specific prohibitions on

22

Waters v Public Transport Corp (1991) 173 CLR 349 (HCA). 23

At 377. 24

At 372. 25

Julian Gardner An Equality Act for a Fairer Victoria: Equal Opportunity Review Final Report

(June 2008), and Scrutiny of Acts and Regulations Committee Inquiry into Exceptions and

Exemptions in the Equal Opportunity Act 1995 (2010).

discrimination in Part 2 of the Act, including s 44, by explaining what amounts to

discrimination.

[38] For these reasons, we conclude that those covered by Part 2 must provide

services to the disabled or treat those persons no less favourably in connection with

the provision of those services subject to a reasonableness requirement. That does

not mean that no comparative exercise is required at all. Air New Zealand says that

in working out the appropriate comparator, the key question is whether Ms Smith is

entitled to have extra oxygen supplied for no cost. Air New Zealand supports the

approach taken to the comparative exercise taken by the High Court. However, the

High Court applied the approach taken by this Court in Air New Zealand Ltd

v McAlister26

in determining the appropriate comparators. That approach has

subsequently been overtaken by that of the Supreme Court in McAlister.

[39] In any event, on the approach we take to ss 44 and 52 the comparative

exercise in this case is straightforward. Essentially, the comparison is between

Ms Smith and all other passengers without Ms Smith‟s disability-related need for

oxygen. On that analysis, Ms Smith has been treated less favourably in relation to

the provision of oxygen by reason of her disability. We agree with the Tribunal‟s

analysis summarised at [11] above. This conclusion is not a finding that Air New

Zealand has acted unlawfully, but rather is a step in the process of determining the

lawfulness of Air New Zealand‟s actions in the light of s 52.

[40] The issue then becomes whether Air New Zealand‟s response is reasonable in

terms of s 52. As the case was argued, that requires consideration first of the

appropriate test under s 52 and, secondly, the application of that test to the facts of

the present case. We deal with each in turn.

The test in s 52

[41] The Tribunal said that s 52 required an assessment of the reasonableness of

Air New Zealand‟s response. The Tribunal accordingly rejected the argument made

by the appellant, and which is repeated in this Court, that the test imposed by s 52 26

Air New Zealand Ltd v McAlister [2008] NZCA 264, [2008] 3 NZLR 794.

requires the application of a disproportionate or an undue burden/undue hardship

test.27

Air New Zealand says the test is the reasonableness test applied by the

Tribunal. The High Court did not decide this issue.

[42] In support of the submission the test is that of undue burden or hardship,

counsel for the appellant, the Commission and the Attorney-General rely, first, on the

international instruments to which New Zealand is a party. Particular reference is

made to the definition of “reasonable accommodation” in art 2 of the UNCRPD28

and, of course, to the premises underlying the protections against discrimination on

the basis of disability which we have discussed above. As we have noted, the

UNCRPD definition incorporates the disproportionate or undue burden language.

[43] Secondly, counsel rely on the approach taken in the overseas jurisprudence.

They do so on the basis that this suggests how the understandings in this area are

being developed.

[44] The high point for the latter argument is found in the Canadian jurisprudence.

An appropriate starting point in terms of the Canadian cases is that of

British Columbia (Public Service Employee Relations Commission) v BCGSEU

(Meiorin).29

That case dealt with the human rights codes from British Columbia.30

At issue was the general statutory prohibition on discrimination in employment.

There was no mention of a duty to accommodate but the relevant codes included a

“bona fide occupational requirement” exception.31

For present purposes, Meiorin is

important for the conclusion that the bona fide occupational requirement could be

resorted to by an employer if they could establish, amongst other matters, that the

impugned standard was reasonably necessary for the accomplishment of a legitimate

work related purpose. To show it was reasonably necessary it must be demonstrated

27

In this context, we see no difference between the undue hardship phraseology adopted by the

appellant and that of an undue burden utilised by the Commission. 28

See also Directive 2000/78/EC of the Council of the European Union, 27 November 2000,

establishing a general framework for equal treatment in employment and occupation, recital (4)

and art 5. 29

British Columbia (Public Service Employee Relations Commission) v BCGSEU (Meiorin)

[1999] 3 SCR 3. 30

Human Rights Code RSBC 1996 c 210. 31

Section 13(4) Human Rights Code.

that accommodation was impossible without imposing undue hardship on the

employer.32

[45] The approach in Meiorin was applied to all discrimination, not just

employment matters, in British Columbia (Superintendent of Motor Vehicles) v

British Columbia (Council of Human Rights) (Grismer).33

That case dealt with s 8

of the British Columbia Human Rights Code.34

That section provided that a person

must not “without a bona fide and reasonable justification” discriminate on the

prohibited grounds.

[46] In Grismer the Court said that to take advantage of the bona fide and

reasonable justification exception the defendant had to show, amongst other matters,

that the impugned standard was adopted for a purpose rationally connected to the

function being performed, it was reasonably necessary to accomplish that purpose

and that the defendant could not accommodate persons such as the claimant without

incurring undue hardship.35

[47] In the United States, the Americans with Disabilities Act 1990 42 USC

§ 12112(b) provided that “discriminates” included:

(5)(A) not making reasonable accommodations ... unless such covered

entity can demonstrate that the accommodation would impose an

undue hardship on the operation of the business of such covered

entity; ...

[48] Reasonable accommodation and undue hardship were both defined in the

following way:36

The term “reasonable accommodation” may include (A) making existing

facilities used by employees readily accessible to and usable by individuals

with disabilities; ...

...

32

At [54]. 33

British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human

Rights) (Grismer) [1999] 3 SCR 868. 34

RSBC 1996 c 210. 35

At [20] - [21]. 36

§12111.

In general, the term “undue hardship” means an action requiring significant

difficulty or expense ...

[49] In Vande Zande v State of Wisconsin Department of Administration,37

a case

considering this legislation, the United States Court of Appeals, Seventh Circuit,

discussed how costs entered into the equation. Posner CJ for the Court said:

[6,7] ... The employee must show that the accommodation is reasonable in

the sense both of efficacious and of proportional to costs. Even if this prima

facie showing is made, the employer has an opportunity to prove that upon

more careful consideration the costs are excessive in relation either to the

benefits of the accommodation or to the employer‟s financial survival or

health. ... One interpretation of “undue hardship” is that it permits an

employer to escape liability if he can carry the burden of proving that a

disability accommodation reasonable for a normal employer would break

him.

[50] However, the undue burden standard is not universally adopted. Rather, in at

least some cases where the statute adopts the language of reasonableness,

reasonableness is the test.

[51] For example, in Waters the High Court of Australia was considering s 29(2)

of the Equal Opportunity Act 1984 (Vic). That subsection provided that

discrimination was outside the section if, in consequence of a person‟s impairment,

the service had to be performed in a special manner:

(a) that cannot reasonably be provided by the person performing the

service; or

(b) that can on reasonable grounds only be provided by the person

performing the service on more onerous terms than the terms on

which the service could ... reasonably be provided to a person not

having that impairment.

[52] Brennan J discussed the section only in terms of reasonableness.38

Dawson

and Toohey JJ considered reasonableness for the purposes of the section was a

question of fact, with what was relevant differing from case to case.39

The other

Judges did not consider the meaning of reasonableness in the s 29 context.

37

Vande Zande v State of Wisconsin Department of Administration 44 F 3d 538 (7th Cir 1995). 38

See 378 and following. 39

At 395.

[53] In Archibald v Fife Council40

the claimant had been dismissed after she

became physically unable to do her job as a road sweeper. The House of Lords was

considering the matter in terms of ss 5 and 6 of the Disability Discrimination

Act 1995 which protected employees against discrimination on the basis of

disability.41

Section 5(1) dealt with less favourable treatment and the employer‟s

obligation to show the treatment is justified. Section 5(2) dealt with unjustifiably

failing to make adjustments. Section 6(1) required the employer to take such steps

as were reasonable to avoid placing the disabled person at a disadvantage.

“Reasonable” in this case was just taken to mean reasonable.42

[54] The same approach was taken in Roads v Central Trains Ltd43

a case dealing

with s 21 of the 1995 Victorian Act. Again, the duty of the service provider was

expressed in terms of the steps that were reasonable. There was no suggestion in the

case that reasonable meant anything other than reasonable.44

[55] The overseas jurisprudence accordingly reflects both approaches and the

statutory language used can be decisive. We consider it is important that

“reasonable” is the word used in s 52. Obviously, the section has to be interpreted in

a way which is consistent with the statutory purpose. The international instruments

have a bearing there. But as Dr Butler acknowledged, the UNCPRD is silent on the

practical implications of implementing reasonable accommodation.45

[56] The words “reasonable” or “unreasonable” are used in a number of different

contexts in the New Zealand Act, not all of which relate to exceptions. As an

illustration of a use of the word in a different context, s 23 makes it unlawful to use

application forms for employment which indicate or “could reasonably be

understood as indicating” an intention to breach s 22. Section 22 prohibits

40

Archibald v Fife Council [2004] UKHL 32, [2004] 4 All ER 303. 41

The position in the UK has changed with the enactment of the Equality Act 2010. 42

See at [19] and [21] per Lord Hope, at [33], [39], [40], [43] and [44] per Lord Rodger and at

[47], [65] and [69]-[70] per Baroness Hale. 43

Roads v Central Trains Ltd [2004] EWCA Civ 1541. 44

See at [35] per Sedley LJ; and at [39]-[40], [42] and [45] per Buxton LJ. 45

Both the departmental report on the 2008 Bill and the national interest analysis appended to the

select committee report on the Bill do make reference to an undue burden standard: at [82] and

[74] respectively.

discrimination in employment.46

There are also variations on “reasonable”, for

example, s 65 provides an exception to indirect discrimination on the basis that

“good reason” for the relevant conduct is established.

[57] The word “reasonable” may of course have different meanings in different

parts of the Act. However, when used in the context of exceptions to what is

otherwise unlawful conduct, some consistency in approach in the Act may be

expected. It would not be appropriate for us to decide the point but we note that

where the word “reasonable” is used in relation to at least one of the other forms of

exceptions in the Act, it appears the legislature envisaged a test of reasonableness of

the type adopted by the Tribunal in this case. We refer in this respect to s 29(1)(b).

That subsection provides that different treatment based on disability is excused

where the environment in which the relevant duties are being performed is such that

the person could only perform the duties with a risk of harm, including the risk of

infecting others with an illness, and it is not reasonable to take that risk.

Section 29(2) provides that s 29(1)(b) does not apply if the employer could, “without

unreasonable disruption, take reasonable measures to reduce the risk to a normal

level”.47

It is hard to envisage that an undue hardship standard is incorporated in the

context of the risk of such harm.

[58] In any event, we are not sure how much difference there is in fact between

the two formulations of the test. The Supreme Court of Canada in Council of

Canadians with Disabilities v VIA Rail Canada Inc48

dealt with the Canada

Transportation Act SC 1996 c 10, s 5 of which required carriers “as far as is

practicable” to carry traffic under conditions that did not constitute an “undue

obstacle to the mobility of persons” including persons with disabilities. In

discussing the earlier jurisprudence, Abella J for the majority noted that undue

hardship was reached when “reasonable means of accommodation are exhausted and

46

See also ss 61(1)(c) and 67(1). 47

Sections 29(1)(b) and (2) are mirrored in ss 36(4) and (5) relating to partnerships, ss 37(2A) and

(2B) (professional bodies), ss 39 (qualifying bodies), s 41(2) and (3) (vocational training

bodies), ss 43(4) and (5) (access to places and facilities), and ss 56(1) and (2) and 60(2) and (3)

(further exceptions in relation to disability). 48

Council of Canadians with Disabilities v VIA Rail Canada Inc [2007] 1 SCR 650.

only unreasonable or impracticable options for accommodation remain”.49

Further,

Abella J said:

[133] It bears repeating that “[i]t is important to remember that the duty to

accommodate is limited by the words „reasonable‟ and „short of undue

hardship‟. Those words do not constitute independent criteria. Rather, they

are alternate methods of expressing the same concept”: Chambly, at p.546,

citing Central Okanagan School District No. 23, at p 984. The factors set

out in s.5 of the Canada Transportation Act flow out of the very balancing

inherent in a “reasonable accommodation” analysis. Reconciling

accessibility for persons with disabilities with cost, economic viability,

safety, and the quality of service to all passengers (some of the factors set out

in s 5 of the Act) reflects the reality that the balancing is taking place in a

transportation context which, it need hardly be said, is unique.

[59] The point is also illustrated by a consideration of the analysis undertaken in

Grismer where the undue hardship approach was adopted. The claimant in that case

suffered from a condition which eliminated most of his left side peripheral vision in

both eyes. His driver‟s licence was cancelled on the basis that he did not meet the

standard of a minimum field of vision of 120 degrees. While exceptions to this

requirement were permitted, people with the claimant‟s condition were not allowed

to hold a driver‟s licence in British Columbia. The Court confirmed that the

claimant had established prima facie discrimination. Although it could be shown

that the objective of the standard, reasonable highway safety, was legitimate and

rationally connected to the general function of issuing driver‟s licences, the Court

was not satisfied that it was reasonably necessary to accomplish the objective. That

was because it had not been demonstrated that persons with this condition could

never achieve reasonable highway safety. Further, it had not been shown that the

risk or cost associated with providing an individual assessment constituted undue

hardship. Indeed, on the evidence, at least two tests for road safety of people with

this condition had been developed.

[60] The Court accepted that excessive costs may justify a refusal to accommodate

those with disabilities but the Court had to be careful of putting too low a value on

accommodating the disabled. Impressionistic evidence of increased expense would

not generally suffice and there may be ways to reduce costs.50

49

At [130]. 50

At [41].

[61] We agree with these comments. An evidential foundation is necessary. But,

what s 52 requires is an evaluative analysis of the proportionality or reasonableness

of the provider‟s response. That will, as in Grismer, ultimately involve broad value

judgments taking into account the overall benefits in comparison with the costs.

The application of s 52 to the present case

[62] Leave to appeal was not given specifically on this issue. Air New Zealand

challenged the appropriateness of considering the matter in the circumstances. The

position taken by Mr Waalkens was that if the Court was to find that s 52 imposed an

undue burden standard in literal terms the matter would have to go back to the

Tribunal for further consideration. If, however, we concluded that s 52 was

synonymous with an enquiry in the realm of reasonableness then there were

sufficient findings to say that Air New Zealand acted reasonably. If the latter

approach was adopted and the Court was able to find in Air New Zealand‟s favour

then Mr Waalkens was content to proceed on that basis.

[63] When the matter was raised with the appellant‟s counsel, she was given time

to take instruction and after the hearing filed a memorandum. The memorandum

records Ms Smith‟s agreement to the Court determining the s 52 issue on the basis of

the very long period of time the case has been running and the opportunity it presents

to conclude the matter shortly.

[64] For the reason given by Ms Smith, it is sensible for us to deal with this

matter. The case has been on foot for a number of years now. We understand that

the technology in terms of the provision of oxygen on flights has changed and there

have been some changes in industry practice. If the matter went back to the Tribunal

it would probably be in reality, as Mr Waalkens submitted, a new case.

The approach in the Tribunal and in the High Court – the arrangements for domestic

travel

[65] The Tribunal concluded that Air New Zealand could not reasonably be

expected to provide extra oxygen to Ms Smith without requiring the sort of

arrangements that have been adopted since 2002 in the case of domestic air travel.

The reasons given for this were as follows:

(a) The exact requirements of those needing extra oxygen were particular

to each passenger.

(b) The situation was no different from those cases where a passenger

with a disability wanted an accompanying person or there was a need

to stretch out over several seats. The Tribunal considered the airline

did not have to provide the facilities required in those cases without

charging for them in an appropriate way.

(c) The Tribunal accepted the evidence given by Air New Zealand about

the way in which the BOC solution was reached. The Tribunal noted

that although the outcome was not to Ms Smith‟s liking, it was

satisfied there had been a process of “thoughtful consultation” and

that the solution “represented a responsible and reasonable reaction”

to the various factors that had to be taken into account.51

(d) Finally, the Tribunal took the view that given Air New Zealand‟s

responsibility for ensuring passenger safety, it was not only

reasonable but “absolutely inevitable” that Air New Zealand must

control and therefore be able to set out what kind of equipment is to

be used and how it is to be packaged and made available for aircraft

storage.52

[66] The High Court noted that the Director of Human Rights Proceedings, who

was then arguing the case on Ms Smith‟s behalf, did not challenge what the Court

took as the basic conclusion of the Tribunal on this point. That is, that the approach

taken by Air New Zealand reflected a responsible reaction to the variables that had to

be taken into account. The Court did not see that there was any basis for taking a

different view on this given the way the appeal had been argued.53

51

At [118]. 52

At [118]. 53

At [121] – [122].

The approach in the Tribunal and in the High Court – the arrangements for

international travel

[67] In considering the additional cost of US$75 charged for each sector on

international flights, the Tribunal had some criticisms of the evidence provided by

Air New Zealand. However, the Tribunal concluded that the same arrangements as

for domestic flights could not have applied to the international leg. There were two

reasons for that conclusion. One was the need to comply with various aspects of

international regulation and, the other, the fact that the journeys were longer and so

required a larger supply.

[68] The Tribunal looked at costs in terms of the overall costs of the provision of

supplementary oxygen by Air New Zealand, how those costs compared with the

airline‟s overall profitability, and the extent to which the US$75 involved the

recovery of its costs by Air New Zealand. The Tribunal drew these conclusions from

the evidence:

[131] ...

(a) The supply of extra oxygen for international flights does require

Air Zealand to incur significant extra costs that it would not

suffer if the extra oxygen were not supplied;

(b) There is no sufficient basis in the evidence we heard to find that

the US$75 charged recovers anything more than the real cost to

Air New Zealand of providing extra oxygen to those who need

it on international flights (to the contrary, the high probability is

that the charge recovers only a small fraction of the real cost of

providing extra oxygen).

[69] The Tribunal‟s overall conclusion was as follows:

[140] In order for [Ms Smith] to be able to use its air travel services, Air

New Zealand has to supply the oxygen that she needs in a special manner.

But it cannot do so without incurring extra costs. In another case, the special

manner in which a service has to be provided may not involve extra cost, or

the extra cost may not be so great as to justify more onerous terms such as an

additional charge. But in this case the extra cost is one that, in our

assessment, Air New Zealand cannot reasonably be expected to suffer

without looking to the passenger for some contribution. And, despite the

lack of precision in the evidence, we are satisfied that the extra US$75 that is

charged is highly unlikely to be an over-recovery by Air New Zealand – to

the contrary, the charge is almost certainly a significant under-recovery of

the extra costs.

[70] The High Court similarly considered Air New Zealand acted reasonably

noting that the US$75 was a generally applied international charge and one which

recovered only a small part of Air New Zealand‟s costs.54

The submissions

[71] Apart from the criticism of the test applied by the Tribunal, there are two

broad themes emerging from the submissions of the appellant and the Commission

as to whether s 52 is met:

Air New Zealand‟s evidence was not sufficient to discharge the onus.

Ms Joychild for the appellant refers, by contrast, to the rigour applied in

the VIA Rail case.

There was little evidence of proportionality and in particular an absence

of any consideration of alternative practices and policies.

[72] Mr Waalkens essentially supports the reasoning of the Tribunal.

Our evaluation

[73] There is no dispute that the onus to show that the test in s 52 is met is on

Air New Zealand. Section 92F(2) of the Act provides that the onus of proving that

unlawful conduct is within an exception lies on the defendant. Nor is there any

dispute that the standard is proof on the balance of probabilities.

[74] We have to acknowledge that there was, as the Tribunal noted, a lack of

precision about Air New Zealand‟s evidence, particularly on the issue of costs.

There are now, however, concurrent factual findings in the Tribunal and the

High Court that the evidence was sufficient to meet the reasonableness test.55

Having reviewed the evidence, we see no basis for taking a different view.

54

At [120]. 55

The High Court left unanswered the question of whether the finding as to reasonableness would

satisfy an “undue burden” test: at [122]. The Tribunal did not consider an undue burden test

would be met in relation to international travel: at [125].

[75] To put the matter in context, we need to say a little more about the evidence

relating to oxygen needs whilst flying. The Tribunal was told that to enable human

passengers to breathe during flights, aircraft cabins are pressurised at about the

equivalent to what is found at 6,000 to 10,000 feet altitude, usually closer to 6,000

feet. It is not uncommon, as a result, for people with respiratory problems to need

supplementary oxygen when flying.

[76] Further, Air New Zealand has to carry extra oxygen on all flights for

emergencies. This covers the situation of a passenger becoming unwell during flight

and when there is an aircraft emergency. Supplementary oxygen can be supplied in

an aircraft cabin either via an oxygen cylinder or via a concentrator.

[77] There is no dispute that, because oxygen is volatile and highly combustible,

there are safety issues inherent in the transportation of extra oxygen in an aircraft.

[78] We turn then to the approach to domestic travel. As the Tribunal said,

Air New Zealand‟s way of dealing with the provision of supplementary oxygen on

domestic flights was not a question of cost but passenger safety. We agree with the

Tribunal that Air New Zealand could not reasonably be expected to provide a service

which responded to and ultimately took responsibility for the individual needs of

each passenger who required extra oxygen on domestic flights.

[79] The appellant takes issue with the latter proposition on the basis that Air New

Zealand does take responsibility for individual needs on international routes. She

also says that the medically certified form she provides with her travel details means

all that is required is to set the gauge to the correct level. However, the increased

risk posed by the probability of longer periods of travel on international routes and

so a need for larger supplies, as the Tribunal said, does provide some basis for

differentiation between domestic and international travel. Further, there was

evidence that while Air New Zealand planned to roll out the BOC travel pack

internally and then move to trans-Tasman and other Pacific flights, that was stymied

by a decision by one of the regulators that no externally owned compressed gas

cylinder would be allowed in the cabin of Air New Zealand aircraft on international

flights. Subsequent security alerts appear to have reinforced prohibitions in this

respect.

[80] The appellant also challenges the Tribunal‟s acceptance of a submission from

Air New Zealand that it is a commercial airline not a philanthropic organisation.

However, in our view that simply reflects the reality that Air New Zealand is in the

business of providing a service for, ultimately, profit. That must be a factor in

considering the reasonableness of Air New Zealand‟s response. This is not to say

that private service providers will not have to meet some extra costs in order to make

provision for persons with disability to use their services in the same way as

everyone else. Rather, the question is one of proportionality. If the extra costs are

reasonable, the service provider will be in breach of s44/s52 if it refuses to bear them

and thereby excludes disabled persons or treats them less favourably than others.

[81] The appellant is also critical of the weight given by the Tribunal to the

working party process which preceded the change to Air New Zealand‟s approach to

the domestic arrangements. There was considerable evidence on this and, in our

view, it is an answer to the criticism that the Tribunal did not consider alternative

practices or procedures. While Ms Smith did not agree with the outcome of the

working party process, it did represent a methodical consideration of the various

ways in which this issue could be addressed. The Tribunal was correct to weigh this

aspect in the evaluative exercise.

[82] Ultimately, in the context of considering whether the requirements of s 52 are

met, no issue can be taken with the Tribunal‟s conclusion that the solution of

requiring that the equipment be supplied from a given supplier which in itself

understands and can meet Air New Zealand protocols makes good sense. Once those

sorts of arrangements are in place, it is reasonable for the passenger to have to bear

the costs of arranging the supplies.

[83] The position with respect to international travel is less clear cut.

[84] The evidence as to overall cost was that if Air New Zealand was unable to

make the US$75 charge that would represent a cost to the airline of some NZ$50,000

per annum. The Tribunal considered that in the context of an airline with the

following financial results in the period 1998 to 2003:

Year Net Surplus/Deficit after tax and unusuals (NZ$)

1998 145,000,000 (surplus)

1999 214,000,000 (surplus)

2000 600,000,000 (deficit)

2001 83,000,000 (surplus)

2002 318,000,000 (deficit)

2003 165,700,000 (surplus)

[85] Importantly, however, the Tribunal observed that if an attempt was made to

account for all of Air New Zealand‟s costs in respect of the provision of

supplementary oxygen, that exercise would also have to take into account matters

such as the capital cost of the equipment, maintenance, logistics, compliance, and

training and other staff costs.56

[86] Taking each of these in turn, in terms of capital costs, five concentrators were

acquired by Air New Zealand in about 1998 at a cost of about NZ$14,000 each.

They have a life span of between three to seven years. Cylinders of the compressed

gas cost US$850 each.

[87] As to maintenance costs, concentrators are treated as aircraft componentry

and so have to meet certain maintenance protocols as a result. The equipment is

delivered to the airline‟s engineering division so this involves a logistical exercise

and a need to co-ordinate the movement of equipment around the airline‟s network.

There is a cost of staff time associated with that and a cost for the engineering time

involved in servicing. The figures provided to the Tribunal were NZ$125 and

NZ$450 respectively for the time cost involved in co-ordinating the movement of the

concentrators and servicing them.

[88] As to the logistical costs, the Tribunal referred to the staff costs involved

when a passenger wants extra oxygen. That reflects the fact that it will be necessary

to ensure that the equipment is at the departure airport and is either installed into the

56

At [127].

aircraft or filled and ready to be used. Further, to the extent that compressed gas

needs to be carried to the airport of departure, there can be a cost to Air New Zealand

of NZ$200 associated with the shipping of dangerous goods via a freight forwarding

agency.

[89] The compliance costs are those associated with ensuring the equipment is

compliant with the regulatory regime. In terms of this aspect, there is no dispute that

to allow a person to have access to supplementary oxygen, Air New Zealand is

required to comply with a number of national and international regulations. At the

time, these included the Civil Aviation Act 1990, New Zealand Civil Aviation Rules,

the International Air Transport Association Resolution 700, Dangerous Goods

Regulations, US Federal Aviation Regulations and International Civil Aviation

Organisation (ICAO) Technical Instructions. Similarly, there is no contest to

Air New Zealand‟s assertion that these provisions constituted a restrictive set of

rules. Those rules meant that, at least for international travel, extra oxygen in flight

could only be provided from a source controlled by the airline which met the

relevant management, supply and maintenance protocols. These various provisions

reflect the significant safety concerns arising in relation to the supply of extra

oxygen whilst in the air.

[90] Finally, the Tribunal accepted there were costs associated with training for

pilots, cabin crew and other staff in connection with the use of the equipment and

ensuring that the appropriate equipment is available in working order at the relevant

departure airport at the right time.

[91] The Tribunal accepted that it costs something like NZ$776 to provide extra

oxygen for any given flight. Further, it was accepted that the charge of US$75 per

sector represented a recovery of a maximum of only about 20 per cent of the actual

cost.

[92] The figures would have to reflect also the number of times concentrators as

opposed to cylinders are used and the actual number of times in any given period

either kind of equipment was required. The best information the Tribunal had was

that in 2001 there were 235 international sectors where requests for extra oxygen

were made and in 2003 there were 170 passengers involving some 300 sectors who

asked for extra oxygen. In very round terms at US$75 per sector that represents a

recovery of about $22,500. Accordingly, it is only if the number of passengers being

charged for extra oxygen on international flights was very much greater than was

indicated to the Tribunal that Air New Zealand might have any prospect of

recovering anything close to the real cost of providing the extra oxygen.

[93] It is not easy to weigh up the relative significance of these costs. But

undoubtedly they are real and not without significance. There was evidence before

the Tribunal that the international airline industry was “notorious” for the low level

and inconsistency of its profits and the cost/profit comparison has to be viewed in

that light.

[94] There is also another factor which needs to be brought into the equation.

That is, the fact that the imposition of a charge for the provision of supplementary

oxygen was common internationally, at least at the time of the Tribunal hearing.

[95] The Tribunal concluded on the basis of evidence from Air New Zealand that

the international practice of most, although not all, airlines was to offer extra oxygen

for those who need it and that many include an extra charge for doing so. The

charges vary from airline to airline but the rate of US$75 charged by Air New

Zealand was the figure recommended by ICAO. While, as the Tribunal accepted,

industry practice does not provide a complete answer, industry practices are not

altogether irrelevant. In that context, the Tribunal was cognisant of the fact that

Air New Zealand would be at a significant disadvantage in comparison with its

airline competitors if it could not charge for this service. This factor is relevant to

the extent to which there are alternative practices or procedures available to Air New

Zealand.

[96] The appellant relies on decisions of the Canadian Transportation Agency

which have required, for example, some of the Canadian airlines to make changes to

their policies in relation to the provision of services to the disabled. For example,

some specified airlines were given 12 months to develop a one passenger, one fare,

policy so, for example, those disabled by obesity and requiring more than one seat

are charged only for one seat.57

However, these cases turn very much on the

particular set of facts and do not support the application of such an approach across

the board. Further, as Mr Waalkens submits, one of the cases, whilst critical of other

aspects of Air Canada‟s policy, proceeds on the basis oxygen supplies are the subject

of a charge.58

[97] When all of these factors are taken into account, we agree with the Tribunal‟s

conclusion that the charge imposed by Air New Zealand for the provision of

supplementary oxygen for international travel was reasonable. We do not consider

that Air New Zealand could reasonably be expected to provide supplementary

oxygen without the imposition of the charge. Accordingly, while we agree with the

appellant that there was a prima facie breach of s 44, Air New Zealand‟s approach is

not unlawful because it falls within s 52. There was some debate about whether, if

this conclusion was reached, it is necessary then to deal with the matter under s 65.

Mr Waalkens submitted that this was inappropriate. Leave, he explained, had been

given on the basis of a consent memorandum which, in turn, reflected the parties‟

discussions about what matters should be dealt with in this Court. Further,

Mr Waalkens said s 65 had not been addressed in any detail below. After we heard

argument on this point we said that while we would hear from counsel on how s 65

informed the interpretation of s 44, in particular, we would not deal with s 65 as a

discrete basis of claim.

Disposition

[98] For these reasons, the appeal is dismissed. Costs are reserved.

Solicitors: Office of Human Rights Proceedings, Auckland for Appellant Air New Zealand Ltd, Auckland for Respondent Crown Law Office, Wellington for Attorney-General as Intervener Human Rights Commission, Auckland as Intervener

57

Decision No 6-AT-A-2008, 10 January 2008. 58

Decision No 336-AT-A-2008, 26 June 2008.