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Smith v Air New Zealand [2005] NZHRRT 30 (22 September 2005)

Last Updated: 6 April 2006

Decision No. 30/05

Reference No. HRRT 37/02


BETWEEN VALERIE JOAN SMITH

Plaintiff

AND AIR NEW ZEALAND LIMITED

Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

Mr R D C Hindle Chairperson
Ms P A K McDonald Member
Mr G J Cook Member

HEARING: 9, 10, 11 & 12 August 2004 (Wellington)

APPEARANCES:

Mr R Hesketh for plaintiff
Mr H Waalkens QC & Ms J Libbey for defendant


DATE OF DECISION: 22 September 2005

DECISION

Preliminary

[1]The plaintiff suffers from a congenital condition. One consequence is that she has limited lung capacity. At night when she sleeps, and on occasions during the day, she needs extra oxygen to help her breathe. So too when she travels in an aircraft. The lowered air pressure in the cabin when the aircraft is at altitude makes it difficult for her to take in enough oxygen.

[2]One solution is to have a cylinder of compressed oxygen in the aircraft with her. That is how the plaintiff has travelled by air since she first became aware of her need to have extra oxygen in flight.

[3]The central question that this case raises is this: When Air New Zealand requires the plaintiff to organise and pay for her own oxygen support for any given flight, or when it asks her to contribute to the costs of providing oxygen support when supplied by it, does it thereby discriminate against her in an unlawful way because of her disability?

[4]In her claim the plaintiff has asked the Tribunal to make various declarations and restraining orders to prevent Air New Zealand from imposing additional charges on passengers with disabilities or illnesses, and who as a result require particular services or support when flying with Air New Zealand. There is a claim for a comparatively small sum that the plaintiff was charged for the provision of oxygen support when she took an Air New Zealand flight to Melbourne in December 1999. There is also a claim pursuant to ss.92I(3)(c) and 92M(1)(c) of the Human Rights Act 1993 (‘the Act’) for $3,000 on account of humiliation, loss of dignity and injury to her feelings.

[5]Air New Zealand’s reply is to the effect that nothing it has done during its association with the plaintiff has given rise to any proper claim of unlawful discrimination. In any event it takes issue with the broad way in which the relief sought by the plaintiff has been framed.

[6]Of course all of the claims need to be considered on their merits, but we do not think that it does a disservice to plaintiff’s case generally to say that it has been brought to test Air New Zealand’s practices in regard to the provision of facilities for disabled people.

[7]The claim was filed in August 2002. Air New Zealand filed its statement of reply in February 2003. On 24 June 2003 the Tribunal was asked to deal with a number of interlocutory issues: see Smith v Air New Zealand Limited (HRRT Decision 23/03, 24 June 2003).

[8]The substantive issues came on for hearing in Wellington on 9 August 2004. At the request of counsel for the plaintiff, after the evidence and argument was completed a timetable was put into place to allow for the filing of extra written submissions on behalf of the plaintiff. The timetable also allowed for submissions in reply to be filed on behalf of Air New Zealand. That exchange of submissions was completed on 23 November 2004. Subsequently in February 2005 counsel for the plaintiff drew our attention to a decision that had been issued in respect of a case that was referred to in argument at the hearing. By letter dated 14 February 2005 the Tribunal was notified that Air New Zealand did not wish to make any further submissions in respect of that decision.

[9]We regret the time that it has taken to issue this decision. At least in part the delay has been a result of a large number of hearings conducted by the Tribunal in the 2004 calendar year, with a consequential backlog of decisions (particularly in complex matters) that have had to be issued. The circumstances have been compounded by the fact that, until May 2005, the role of Chairperson of the Tribunal was a part-time one only.

[10]It is to be hoped and expected that delays of the sort suffered in this matter will not occur in future, particularly now that the Chairperson has a full-time commitment to the work of the Tribunal. In the meantime, we express our regret to the parties in this matter at the length of time that it has taken us to deliver this decision.

[11]This decision is organised under the following headings:


Preliminary

Background to the litigation

The changing focus of the case

The training issue

Less favourable treatment: the competing arguments

Less favourable treatment: discussion and decision

Can Air New Zealand reasonably be expected to supply its services without requiring more onerous terms?


Conclusion

Costs

[12]We begin by setting out the context of the case in greater detail.


Background to the litigation

[13]The plaintiff first discovered that she needed oxygen support in flight in 1997 when she flew to the United States. She got into difficulties with her breathing on the first sector out of New Zealand, and was given oxygen by the cabin crew from one of the oxygen cylinders kept on board for emergencies. After she arrived in the United States oxygen was arranged for her for each sector of her ongoing travel. She was charged US$75 for each sector. We should say that none of this travel was with Air New Zealand.

[14]One lesson that the plaintiff learned from this episode and which is of some relevance in the present proceedings, however, is that the rate at which oxygen is delivered to her is very important. On her trip to the United States she was unwittingly given too much. She had been unable to clear her lungs fully after each breath. As a result she suffered a build up of carbon dioxide in her body. By the time she arrived back in New Zealand she was very ill indeed. She had to spend several weeks in hospital. At one point there were fears for her life.

[15]Fortunately with proper monitoring and therapy her condition improved. Since then, however, she has had to have oxygen support when she sleeps at night. That involves having a mask over her face, to which two machines are attached. One is about the size of a household dehumidifier. It takes air in and concentrates the oxygen that the air contains. The oxygen is then delivered to the face mask by a plastic tube. The second machine is much smaller. It is called a ‘Bi-Pap’ machine. The machine regulates the flow of oxygen to the plaintiff. Importantly, it also helps to deflate her lungs after each breath so that carbon dioxide does not build up.

[16]All of this equipment is geared up to deliver oxygen to the plaintiff at the particular rate at which she requires it, namely 1 litre per minute. The evidence made it clear that her required rate for extra oxygen is low when compared to others who have need of oxygen support.

[17]The Bi-Pap machine is small enough for the plaintiff to be able to take it with her when she travels, although she does not need to use it on flights if she is going to be awake throughout the journey. The concentrator, however, is too big to be carried easily. It would certainly be impracticable to carry it in an aircraft cabin, much less use it there.

[18]The plaintiff explained that when she is going to travel away from home overnight she will usually contact the local District Health Board in the area to which she is travelling in advance of her travel. She does so in order to arrange for the use of an oxygen concentrator owned by the District Health Board in the place that she is going to (enquiries made by counsel for Air New Zealand suggests that practice amongst District Health Boards varies; some charge for the supply of equipment needed by travellers who require extra oxygen, and others do not).

[19]The plaintiff will also contact her doctor to obtain a medical certificate known as a MEDA (‘Medical Fitness for Air Travel’) form which says that, in the doctor’s assessment, the plaintiff is safe to undertake the proposed flight(s). The MEDA form also states that the plaintiff will either be able to take care of her own meals, transfers, administering of medication and other needs in flight, or that she will be accompanied by someone who can assist her with those needs. It is relevant to note that, in the case of lung disease, the form has to be supplied by anyone whose disease prevents them from walking 100 metres on the flat, or which has required them to use extra oxygen at home or on previous flights.

[20]Although the need to obtain such a certificate puts the plaintiff to the inconvenience of having to contact her doctor, and sometimes to a cost of around $50.00 for an appointment with her doctor, she did not say that the requirement that she must provide the certificate involves anything like unlawful discrimination against her. It was accepted that the airline is entitled to an appropriate assurance that she is fit to fly.

[21]The December 2003 version of the MEDA form contains the following information to travellers:

"The aircraft oxygen supplies are for emergency use only and not for planned use. However, oxygen is available for medical reasons with adequate notice (usually four days). Where possible Air New Zealand will refer you to an authorised provider who can supply the required oxygen directly to you. You will be responsible for operating the equipment and following any safety instructions. Alternatively Air New Zealand may supply oxygen for some international journeys. Your doctor can advise you whether oxygen will be necessary in flight,...."

[22]We should make it clear that this decision concerns situations in which the need for extra oxygen is understood before a flight is undertaken; it does not deal in any way with issues related to the supply of extra oxygen in an emergency.

[23] As at the date of the hearing, there were two different regimes for the supply by Air New Zealand of extra oxygen in fight. The first is associated with domestic travel, i.e., where the flights are from and to destinations within New Zealand. In those cases the airline does not supply the extra oxygen at all. For safety reasons, however, the airline requires that the oxygen cylinder and the associated equipment that will be used in flight must be obtained by the passenger from an approved provider called BOC Gas Limited (‘BOC’). Air New Zealand has an arrangement with BOC to ensure that when BOC supplies a passenger with equipment the equipment will meet relevant safety requirements.

[24]During argument at the hearing this arrangement was referred to as the ‘bring your own’ approach. That is because, although Air New Zealand requires that the relevant safety standards must be met, ultimately it is the passenger who must contact BOC, ensure that the equipment is available, and that what is provided is capable of delivering oxygen at the particular rate required by the passenger in question. The passenger must also uplift the equipment from BOC and return it to BOC after travel. The passenger pays all of the costs involved direct to BOC. The cost no doubt varies depending on what equipment is needed and how long it is needed for, but in this case the plaintiff said that the extra costs she incurred in late 2002 included:

[a]A delivery fee for transport of the equipment to and from the plaintiff’s home, if she or her partner are unable to go to the BOC depot to pick it up or drop it off – around $20.00 each way;
[b]A cost of $21.81 per gas bottle (‘size A’);

[c]An additional cost of $28.69 for the regulator/flow meter travel pack;

[d](Possibly) a cost of $6.12 per bottle for filling the bottle – it is not clear to us whether filling the bottles is charged for separately by BOC under this system, but in any event any cost of filling bottles will obviously vary depending on bottle size and (perhaps) the number of bottles required; and

[e]An $18.00 annual BOC administration fee.

(We will refer to these arrangements in this decision as ‘the BOC system’ or ‘the BOC approach’.)

[25]International flights are different. For reasons that are related both to the international regulation of on board oxygen, and the fact that international flights are longer than domestic flights, when extra oxygen is required on an international flight Air New Zealand provides it.

[26]Prior to around 1998, for long haul flights a large cylinder of about 3,000 litre capacity was used. The cylinder could be used for seated passengers as well as stretchered patients, but it occupied the space of about two seats on a 767 aircraft and 3 seats on a 747 aircraft. Air New Zealand’s practice was to charge for the extra seats taken up by the oxygen cylinder. In order to alleviate the loss of space and cost that resulted, in 1998 Air New Zealand introduced much more compact oxygen concentrators. A concentrator takes in the air in the cabin, and extracts oxygen from it to deliver the concentrated oxygen to the passenger’s mouth or cannula (pipes which deliver oxygen to the passenger’s nose). It is powered by aircraft electricity. The concentrators are used on long-haul flights where the total volume of oxygen required for the journey will be highest.

[27]Mr May (who was at material times an Air New Zealand employee responsible for issues of this kind) told us that the cost of introducing the concentrator units was around NZ$14,000 each. Initially the Airline purchased five, although not all are serviceable at any one time. The equipment is stored under the passenger’s seat, so that the passenger requiring extra oxygen is charged only for the cost of providing the oxygen and not for the seats that would otherwise be taken up with equipment.

[28]Mr May told us that the concentrators have a life span of three to seven years. He said that there were ‘considerable’ costs involved in fitting and servicing them each time they are required on a particular flight. The units are treated as aircraft components, and therefore have to undergo rigorous testing each time they are returned to service. Mr May told us "the Airline introduced these oxygen concentrators of its own accord to provide a better, more comfortable, and less expensive service to those of its passengers who require it." (The emphasis is ours, in order to highlight the use of the word ‘service’ in this passage of evidence. It is a matter we will refer to below).

[29]The business of providing extra oxygen for use in flight gives rise to a number of logistical issues. At least as importantly, whether supplied from a cylinder or a concentrator, the presence of concentrated oxygen in flight also creates a number of significant safety concerns. We will need to return to the subject later in this decision, but it suffices to say here that oxygen is volatile and highly combustible. In the presence of hydrocarbons such as oils or grease oxygen can ignite with just a small ignition source. As Mr May said: " ... aircraft are literally covered with lubricants, from the seat mechanisms themselves to the more complex air frame controls that make the aircraft fly, to make sure that everything continues to work smoothly. The scenario of a pressurised oxygen cylinder being ruptured and exploding, or of a fire fuelled by leaking oxygen, does not bear thinking about. It is taken very seriously due to the high level of risk."

[30]The problems are not limited to compressed oxygen from a cylinder. A discussion document and draft rule circulated in July 2004 by the Federal Aviation Administration (‘the FAA’) in the United States regarding use of privately owned oxygen concentrators in flight establish that even when a concentrator is used there are risks. Dangers include the possibility of the cannula being left under something like a covering or cushion that can result in a build up of oxygen. If a passenger has used a hydrocarbon based lotion or salve on their skin, then an increased risk of fire exists (we take this from discussion about user requirements under the rule proposed by the FAA; we will refer to the proposed rule in more detail below).

[31]Compressed oxygen is therefore treated as a dangerous good in flight. A number of national and international regulations apply. Specifically, Air New Zealand must at least comply with:

[a]the Civil Aviation Act 1990 (NZ);
[b]New Zealand Civil Aviation Rules;
[c]the International Air Transport Association Resolution 700 and Dangerous Goods Regulations;
[d]US Federal Aviation Regulations; and
[e]International Civil Aviation Organisation Technical Instructions.

[32]It is not necessary to set out the detail of these various instruments, or the precise way in which they impact on Air New Zealand’s operations. The plaintiff did not contest the airline’s assertion that they constitute a restrictive set of rules which, at least for international travel, effectively require that extra oxygen in flight can only be provided from a source which is controlled by the airline and which meets the relevant management, supply and maintenance protocols. Nor was it suggested that the regulations are in themselves a source of any human rights issues.

[33]Aside from the issues arising out of the provision of extra oxygen in flight for the safety of the aircraft, there is another important consideration. As the plaintiff’s experience of her 1997 trip to the United States demonstrates, whenever a person uses extra oxygen the rate at which the oxygen is delivered to the user is important, and can become critical over a period.

[34]For completeness, we add that there are some variations in the broad distinction between international flights and domestic flights. For example, if a passenger arriving on an international flight into New Zealand has a very short stopover before flying to a destination within New Zealand, then Air New Zealand may arrange and supply the oxygen cylinders needed for the domestic route. In addition, apparently in the earlier part of the period there may have been some provincial airlines (the "Link" airlines) which allowed passengers to bring their own oxygen cylinders on board.

[35]We return to the narrative of events.

[36]When this case was first filed it was focussed squarely on a particular trip that the plaintiff took to Melbourne in December 1999. As it happened, the trip had been paid for using frequent flyer rewards that the plaintiff had accumulated on another airline, but because of Air New Zealand’s membership of the Star Alliance network of airlines, the carrier was Air New Zealand. Before travelling, the plaintiff notified the airline of her need for extra oxygen in flight. Compressed oxygen was arranged by the airline. The equipment included a ‘baby regulator’, which is a special kind of regulator used for infants. It was suitable for the plaintiff because her need is for only a small extra flow of oxygen per minute, i.e., approximately one litre per minute. The standard Air New Zealand bottles and regulators could not supply at that rate; they were designed to supply rates of 2, 4 or 6 litres per minute, or alternatively 2 or 7 litres per minute. Thus the plaintiff’s requirements necessitated the use of non-standard equipment.

[37]The plaintiff was charged by Air New Zealand for the oxygen and use of the associated equipment. The amount was calculated on the basis of a standard charge of $US75 per sector for the supply of extra oxygen in flight – i.e., the charge would have been the same even if the oxygen had been supplied from a concentrator. The flights to and from Melbourne constituted two sectors, with a total cost of $US150 that converted to $NZ 298.00.

[38]The plaintiff complained to the Human Rights Commission about the charge before she left for Australia in December 1999.

[39]When she returned to New Zealand the plaintiff also complained that the Air New Zealand cabin staff both going to and returning from Melbourne were not very familiar with the oxygen system that was brought on board for her. In particular she said they were unfamiliar with the use of the baby regulator, and there seems to have been difficulty in attaching the tubing to the cylinder and gauge. The plaintiff said that the whole trip became unnecessarily stressful because of the uncertainties surrounding the use of the equipment.

[40]The plaintiff’s account of the events of the flight from Wellington to Melbourne was challenged by the defendant. The person who had been the purser on that flight was called to give evidence. She remembered what had happened. She said that in all the time that she worked as an in-flight attendant or purser this was the only occasion when she had had difficulty dealing with the oxygen cylinders in flight. She accepted that she had difficulties getting the tubing to fit the regulator properly. It was her evidence, however, that the difficulties were overcome with the assistance of the plaintiff’s partner, and at the time the plaintiff did not seem to react adversely to the situation. The purser recalled that the plaintiff was interested in getting properly ‘hooked up’, but that she appeared to be patient and understanding. Indeed although the purser later filed a flight report in conformity with normal practice, her report mentions errors in the meals that were supplied for the plaintiff but said nothing about the difficulties in connecting the oxygen system for her. It was the purser’s evidence that the whole incident did not warrant mention. In support of that, it is to be noted that the plaintiff has not at any stage suggested that she did not receive the oxygen she needed while on either of the 1999 flights with Air New Zealand to and from Melbourne.

[41]It is not necessary for us to decide whether the plaintiff’s evidence is to be preferred to that of the purser or vice versa. Both are clearly describing the same events, if from different perspectives. We accept that the plaintiff would have been anxious to know that she was going to be properly ‘hooked up’ to an appropriate oxygen supply for a flight of four hours or so. But we think it goes too far to suggest that the purser’s difficulty in setting up the particular system used on that flight demonstrates any systemic difficulty with training. After all, it was the plaintiff’s own evidence that her need for a particularly low level of oxygen meant that special equipment had to be brought onto the aircraft. It was not what the purser was used to using. If anything the events of these flights seem to us to highlight the difficulties of expecting an airline to be responsible for meeting particular medical needs of individual passengers.

[42]In part because of the complaint by the plaintiff, and in part because of other concerns about the delivery of extra oxygen in flight, in early 2000 Air New Zealand initiated a project to address a number of the needs relating to the carriage of medical passengers. The project was wide ranging, but included the question of provision of extra oxygen in-flight. Ultimately it gave rise to a complete overhaul of the way in which Air New Zealand delivers oxygen support, at least on domestic routes. The plaintiff was invited to join the working party for the project and she did so.

[43]We were shown and have considered minutes taken at various meetings of the working party, and other correspondence related to its work. Mr May also gave us an overview of the matters that had been raised for consideration and why various solutions were preferred to other outcomes. For present purposes, the most important result of the review was the introduction by Air New Zealand in October 2002 of a new system for delivery of in-flight oxygen support for domestic flights.

[44]In broad terms, Air New Zealand stopped supplying either the equipment or the gas. Instead, the arrangement with BOC was established. Air New Zealand said that in large part the change was motivated by a desire to provide the oxygen-dependent passengers with the peace of mind that would come from knowing that they had the oxygen they needed before arriving at the airport for their particular flight. If, for example, the plaintiff’s flights in December 1999 had been domestic flights then all of the stress that she suffered at the time would have been avoided. She would have arrived for her flights with her system in her possession, confident that the bottle was as full as required, that the equipment would deliver what she needed, and that she or her companion could operate it.

[45]There was something of an undercurrent in the evidence and argument for the plaintiff to the effect that the changes were really no more than a cost cutting measure by Air New Zealand, because the BOC approach places the cost and inconvenience of obtaining the oxygen and the equipment on the passenger. But we think that such an assessment would be unfair. It may be that Air New Zealand has reduced its costs to an extent, but we cannot find any reason to reject the evidence given by Mr May on behalf of the airline in this regard. He said that one of the reasons for the changes was to empower passengers with particular needs for additional in flight oxygen to be able to make their own arrangements, so as to improve what had in the past been an admittedly imperfect situation.

[46]One consequence of the October 2002 changes for domestic flights was that cabin crew were instructed that, although they could help passengers to stow the oxygen equipment on board, they were not to assist in managing the extra supply of oxygen in flight or adjusting the flow of oxygen. Since October 2002 it has explicitly been the passenger’s responsibility to administer the amount of oxygen needed for themselves or, if they are not capable of doing that, to arrange for someone to accompany them to do so.

[47]The plaintiff voiced concern about the meetings of the working party that she attended, and the outcome that was proposed and then later adopted for domestic travel. In response to some of that evidence, Air New Zealand called another person who was involved for part of the working party process, and who had attended meetings at which the plaintiff was present. That person had also been oxygen dependent in 1999, and she too described a stressful experience when she had flown from Australia to New Zealand in early 2001 and there had been difficulties in arranging and then administering the extra oxygen that she needed in flight. Although she subsequently complained, she said that she was more than satisfied with the efforts that Air New Zealand had taken to try and address her concerns. She recognised that there was a cost to providing oxygen support in flight. She saw no reason why Air New Zealand ought not to be able to either ask the passenger to arrange oxygen in an approved way, or to recover a contribution towards the cost of supplying oxygen.

[48]In the end, all of the evidence about what the working party did and the different attitudes expressed by the plaintiff, the other oxygen-dependent traveller and others only emphasises the complexity of the issues that had to be dealt with, and the potential for controversy surrounding them. What is also clear is that the subject of handling passengers with particular requirements such as the plaintiff’s is an industry wide issue that is not limited to Air New Zealand.

[49]Notwithstanding her concern about a change to the new BOC system, in October 2002 the plaintiff agreed to do a trial run of the system on a trip that she had to take from Wellington to Invercargill via Christchurch that same month. As a result she hired a bottle of oxygen, cylinder, regulator and carrying case from BOC in Lower Hutt. She picked the equipment up the night before the flight. She took it with her when she went to the airport, and she also took it on and off the plane. Eventually she returned the equipment to BOC after her return to Wellington.

[50]It was the plaintiff’s evidence that the experience was traumatic. She said that Air New Zealand staff had apparently been told not to assist her, although "... several informed me they felt bad about this, and wanted to help". She said she could not lift the oxygen system that weighed over 6.3 kilos in total. She also had to carry her Bi-Pap machine and another small bag of other medication that she might need. The whole situation then deteriorated when she was accidentally put onto the wrong aircraft in Christchurch. When the mistake was discovered she had to be transferred hurriedly to the correct aircraft through the rain. She also spoke of inadequate facilities on board the aircraft for storage of the oxygen bottles.

[51]We do not doubt that the travel was stressful to her. But even so, there is a curious lack of particularity in this part of the plaintiff’s evidence. This was, after all, a trial run. It was carried out after the adoption by Air New Zealand of a policy which the plaintiff did not approve of. Even if it is unrealistic to expect the plaintiff to have taken notes in flight, we nonetheless think that some reasonably contemporaneous record of the events that gave rise to her complaints about the trip could have been expected. The plaintiff did a draft report for BOC, and that certainly records issues about the new system and sets out some concerns about her experiences. But the draft report paints a far less critical picture of the way in which she was treated by Air New Zealand staff than was suggest in her evidence to the Tribunal.

[52]In our view the evidence in this respect establishes no more than that Air New Zealand staff on the flights were unwilling to help administer the oxygen that the plaintiff needed in flight. That was exactly what the change was all about, i.e. introducing a system in which the passenger would take responsibility for the administration of the oxygen needed. The written materials prepared by Air New Zealand for therapeutic use of oxygen on domestic flights (a copy of which was sent to the plaintiff before she travelled to Invercargill in October 2002) made the position clear:

"Our cabin crew are there to ensure your comfort and safety however the control of your oxygen medication is your own responsibility. If you need assistance to operate the oxygen equipment, you must fly with a companion capable of assisting you. ...
"Our staff will help you to stow the equipment on board the aircraft however as oxygen is medication, staff are not permitted to assist in dispensing of the oxygen or adjusting the flow."

[53]We understand that the plaintiff has flown within New Zealand on perhaps four or five occasions since the trip to Invercargill. She told us that she has also flown internationally twice since 1999, but on both occasions she flew with a different airline. With respect to the domestic travel that she has taken on Air New Zealand, again there were a number of somewhat imprecise references to the way in which she had been treated by Air New Zealand staff, and to shortcomings which she found in the system for delivering extra oxygen in-flight. But given that the plaintiff first complained to the Human Rights Commission in 1999, and that by October 2002 these proceedings in the Tribunal were already under way, the fact that she has not been able to give any specific evidence, supported by more or less contemporaneous notes or other documents, seems surprising.

[54]In our assessment the plaintiff’s criticisms about the way she has been treated by Air New Zealand staff are not specific enough to establish a foundation for an allegation of unlawful discrimination.


The changing focus of the case

[55]As we have said, this claim was first filed in August 2002. At that time it was focused squarely on the events surrounding the December 1999 trip to Melbourne. The claim was filed before Air New Zealand changed to the BOC system for in-flight oxygen on domestic flights. It was also before the trip that the plaintiff took in late 2002 to Invercargill when she tried the new system. It was before any of the other flights that were mentioned by the plaintiff in her evidence.

[56]At the time this case came to a hearing, however, the events of December 1999 were only a component of the evidence that was offered against the defendant. Indeed even as the hearing unfolded we had the impression of an issue that was continuing to evolve. In opening Mr Hesketh sought to place some emphasis on the new rule proposed by the FAA concerning the delivery of extra oxygen in-flight from personalised concentrators. But the rule was only in preliminary draft form. It was circulated as a discussion document inviting comment on 14 July 2004, only a month before the hearing in the Tribunal. The FAA proposed rule and the commentary that accompanies it suggests that technology may now have moved to a point where compact oxygen concentrators could become a viable option for the supply of in-flight extra oxygen. The proposed rule is all about what restrictions ought to apply when passengers who have that kind of equipment wish to bring it onto an aircraft. But there are obviously still many issues to be resolved about the use of these kinds of machines, which still present their own potential hazards.

[57]We mention the matter because part of the argument for the plaintiff was directed towards the possibility that that kind of technology and approach could be adopted by Air New Zealand, so that Air New Zealand is able to supply the needs of travellers who need extra oxygen in that way. But as we have said, when this case started it was about something that happened in 1999. We think it would be quite wrong to judge the rights and wrongs of events in the year 1999 by taking into account the possible availability of new technology in the year 2004 (particularly when the technology is far from established as a viable alternative).

[58]The relief sought by the plaintiff was as follows:

[a]First, the plaintiff sought a declaration –

"... that the defendant has breached sections 21(1)(h) and 44(1)(b) of the Act, in that as a supplier of goods and/or services to the public, namely air flights, it treated the plaintiff ... less favourably in connection with the provision of an air flight than would otherwise have been the case:

[i] by charging her for the supply of oxygen which she required on the flight because of her disability ... , and

[ii] by failing to provide appropriately trained staff able to assist her with the equipment that was necessary on the flight, because of her disability.

[b] Secondly, the plaintiff sought an order restraining the defendant from –

"repeating a breach of the Act, by engaging in any similar conduct including:

[i] by imposing additional charges on passengers with disabilities and illnesses who require Air New Zealand’s flights to be provided in a special manner; and

[ii] by failing to pay any additional costs that are charged to passengers by third party suppliers of goods and/or services, where those goods and/or services are a component of the provision of flights in a special manner which is required because of the passenger’s disability or illness; unless the company cannot reasonably be expected to provide flights in any particular special manner without requiring more onerous terms; and

[iii] by ensuring that appropriately trained staff are present on flights with passengers with disabilities or illnesses, to assist those passengers with any necessary equipment."

[c] There are also the claims for pecuniary losses amounting to $298, and compensation for humiliation, loss of dignity, injury to feelings in the sum of $3,000.

[59]We are bound to say that when this case was filed the terms of the declaration and restraining orders that were sought were far too wide. This case has to do with those passengers who have need of oxygen support in flight. There is simply no basis to suggest that the Tribunal can or should make sweeping declarations and/or restraining orders purporting to deal with all manner of disabilities and illnesses. It can hardly be suggested that the differing conditions of concern to those who travel by air involve the same medical, logistical or policy considerations in every case.

[60]Indeed the width of the remedies sought serves only to highlight the shortcomings of trying to have complex issues of that kind litigated out in the context of proceedings in the Tribunal. By the very nature of its process the Tribunal has to come at the issues through the narrow focus of specific events and the particular parties that come before it. If what is really wanted is an evaluation as to whether an industry practice amounts to unlawful discrimination, then what is really needed is a public inquiry across the industry. Of course a plaintiff can always bring a ‘test case’ to the Tribunal. But, as this case demonstrates, such an approach does not allow for the potentially large number of variations that may apply depending on the precise detail of what medical condition is involved, which carrier is being considered, and even whether the state of technology at any given moment supports one conclusion or another.

[61]None of the foregoing is intended to suggest that the Tribunal does not have a role to play in considering the facts of particular cases that come before it, and by determining what the legal consequences of those facts are, effectively setting standards that have application beyond the particular participants. But there must be a limit to what can realistically be expected. The Tribunal is an adjudicative body, not a legislative one. We therefore make it clear that this decision is limited to a consideration of the issues raised in the case of disabled people who can get a MEDA certificate and are fit to travel by air as long as they are provided with extra oxygen in flight (i.e., a flow of oxygen that is greater than the oxygen that is provided by the airline for other passengers who do not have that kind of disability).

[62]We add that, despite the pleadings, Mr Hesketh opened the case for the plaintiff by identifying three much more limited and pragmatic issues as the central questions that we are asked to decide. Specifically, they were:

[a]Whether, when flying domestically, the plaintiff should be required by Air New Zealand to organise the supply of extra oxygen equipment from a third party;
[b]Whether, when flying domestically or internationally, the plaintiff should be required by Air New Zealand to pay for the use of extra oxygen equipment on board an aircraft;
[c]The extent to which Air New Zealand aircrew should be trained in the use of equipment needed to supply extra oxygen.

The training issue

[63]It is convenient to begin with the third of these issues.

[64]The short answer to the question is that we were not provided with any satisfactory evidence to demonstrate that there is or was any shortcoming in the training programmes run by Air New Zealand for its cabin crew. Apart from the rather vague allegations made by the plaintiff about travel undertaken by her since the proceedings were first filed, the only specific evidence (i.e., evidence related to a particular flight and in respect of which the airline could reasonably have been expected to respond) concerned her 1999 flights to and from Melbourne. Both the plaintiff and the purser who gave evidence for Air New Zealand agreed that, at least on the flight from Wellington to Melbourne, there was a difficulty in connecting the regulator to the oxygen cylinder. But, as we have already noted, it was the plaintiff’s own evidence that the regulator she needed was non-standard because her particular requirement for extra oxygen involved a regulator that was different from the standard regulators that Air New Zealand used. It is clear that the difficulties that were experienced that day were stressful for the plaintiff, but in our view the incident falls far short of establishing any sort of systemic problem with Air New Zealand training for its cabin crew. To the contrary, the evidence established that the relevant crew on the very few flights we heard about were trained in the use of the oxygen bottles that were ordinarily kept on board for emergency purposes, and that the extent of the training that crew have in emergency procedures varies depending on what kind of aircraft and routes they are flying.

[65]There is no sufficient foundation in the evidence that we heard that would begin to justify any generalised conclusions about (much less criticism of) the way in which Air New Zealand trains its cabin crew. In our assessment the evidence on this issue falls well short of demonstrating anything like unlawful discrimination against the plaintiff. In any event it is not at all clear to us just what we might have been expected to do when asked to deal with (for example) the extent to which air crew should be trained in the use of supplementary oxygen equipment.


Less favourable treatment: the competing arguments

[66]We turn to deal with the other questions raised by Mr Hesketh, namely:

[a]Whether, when flying domestically, the plaintiff should be required by Air New Zealand to organise the supply of extra oxygen and the necessary equipment from a third party; and
[b]Whether, when flying domestically or internationally, the plaintiff can be required by Air New Zealand to pay for the use of extra oxygen and the related equipment on board an aircraft?

[67]Both questions raise the same general issues under the Human Rights Act 1993. Furthermore, although the plaintiff has had to pay an additional charge for supply of extra oxygen on an international flight and also has experience of the domestic BOC arrangements, in the way in which the case was argued it effectively concerned all passengers who require additional in flight oxygen. The case tests Air New Zealand’s practices in that regard.

[68]Mr Hesketh and Mr Waalkens each referred us to a number of different authorities, and we mention some of them below. Counsel were agreed, however, that there are no directly applicable authorities to guide us. In Mr Hesketh’s submission, that is because the issues are novel, brought for the first time in order to test the practices involved. For his part, Mr Waalkens submitted that there are no authorities because it is so obvious that the practices are not discriminatory for anyone else to have thought it worth making such an argument.

[69]It is appropriate to say something about the extent of the practices in issue.

[70]Mr May gave evidence that, in the year 2001, there were approximately 400 flights (or ‘sectors’) across all of Air New Zealand’s domestic and international services where requests for extra oxygen were made (the figure can be compared with his evidence that Air New Zealand has around 450 flights per day).

[71]Of the 400 sectors in 2001 where extra oxygen was requested, 235 were international (and about 60 of those were long haul flights lasting longer than five hours, so that an oxygen concentrator rather than a cylinder would likely have been the preferred solution). Evidence in respect of 2003 showed that around 170 passengers asked for extra oxygen on international journeys. We accept Mr May’s suggestion that, if most of those passengers booked return tickets, then that equates to something around 250 to 300 sectors per annum. Our impression is that, in very round terms, there are probably somewhere between 250 and 300 international sectors every year where extra oxygen is requested.

[72]There were approximately 165 domestic sectors in 2001 where extra oxygen was requested. Assuming again that most passengers buy return tickets, it is possible to guess that the number of domestic journeys (i.e., treating return travel as one ‘journey’) affected in 2001 was probably around 80 or so. It needs be emphasised that the 165 figure relates to sectors rather than to passengers. The evidence does not therefore allow us to say how many people were involved, but we imagine that at least some of the affected passengers probably travelled more than once during the year.

[73]Mr May told us that in 2003, 65 passengers used the BOC system for domestic flights. Again assuming that most had return tickets, that also seems to fall very roughly in line with the 165 domestic sectors for which extra oxygen was required in 2001. It suggests that the number of domestic sectors where extra oxygen is requested runs at something like 60 to 80 per annum.

[74]In any event, what is clear is that for passengers who have need of extra in-flight oxygen, the cost of travelling on any given sector is greater than for those who do not need extra oxygen. The passenger who needs extra oxygen must either pay the international supplement of $US75 to Air New Zealand, or go to the time and cost of arranging supply through BOC. So for any given fare advertised by Air New Zealand, the real cost of the travel will be greater for the person who needs extra oxygen than it is for those who do not.

[75]This is the essence of the plaintiff’s claim that the practices contravene the anti-discrimination provisions of the Human Rights Act 1993. Mr Hesketh says that people like the plaintiff are treated less favourably by Air New Zealand than others, because of their disability. He relied on s44 of the Act, the relevant parts of which provide:

"It shall be unlawful for any person who supplies ... services to the public ...
(b)To treat any person less favourably in connection with the provision of those ... services than would otherwise be the case, –

by reason of any of the prohibited grounds of discrimination."

[76]The following matters are not in dispute, namely that:

[a]The plaintiff is someone who has a disability within the meaning of s.21(1)(h) of the Act;
[b]Air New Zealand supplies a service to the public, being the transportation of persons by air (several different abbreviations were used during argument, but we will call the service that of providing ‘air travel’);

[c]Air New Zealand accepted that the air travel service it provides includes some incidental services (such as check-in, baggage handling, access to and from the aeroplane, provision of rest rooms, selling of refreshments, and meals) and that these are not properly divisible or severable from the air travel service, but are included within the fare that is charged by Air New Zealand for the air travel services it offers to the public;

[d]If there is less favourable treatment of the plaintiff by Air New Zealand then the cause of that is her disability (the essence of the case for Air New Zealand being that the plaintiff is not treated any less favourably than anyone else).

[77]Mr Hesketh accepted for present purposes that there is another element that needs to be established (certainly if any remedies beyond a declaration are to be awarded), namely that there has been harm or disadvantage of some kind as a consequence of the unlawful discrimination alleged. But as a result of discussion at the hearing, it was agreed that the question of remedy would be left to be dealt with after the Tribunal has determined the underlying issues as to liability. As a consequence the question of what harm the plaintiff has or may have suffered as a result of any unlawful discrimination was not the subject of detailed argument. Although those issues are still at large, we think it is clear enough that - if unlawful discrimination is established at all - then this element of the claim (namely the need to show disadvantage of some kind) is established at least in as much as (i) passengers like the plaintiff have to pay an oxygen supplement for international flights or (ii) they have had to arrange their own extra oxygen, and incur the costs of doing that, for domestic flights since 2002.

[78]The central issue, therefore, is whether either of the practices for domestic flights or for international flights constitute ‘less favourable’ treatment of those who need extra oxygen in flight, in connection with the air travel services that Air New Zealand offers to the public?

[79]Mr Hesketh began his argument by reminding us that the Human Rights Act is legislation of a kind which must be given a fair, large and liberal interpretation consistent with its special character and the objectives for which it was enacted: See e.g., Coburn v Human Rights Commission [1994] 3 NZLR 323 (including the reference in that decision to a decision of the Canadian Supreme Court in Ontario Human Rights Commission v Simpson-Sears Limited 1985 CanLII 18 (SCC); [1985] 2 SCR 536), New Zealand Van Lines Limited v Proceedings Commissioner [1995] 1 NZLR 100 and Director of Human Rights Proceedings v New Zealand Thoroughbred Racing Inc. [2002] NZCA 88; [2002] 3 NZLR 333. We add that Mr Waalkens did not challenge these propositions, although he did emphasise the need to interpret legislation in a way that is ‘fair’.

[80]There were many references in argument to the idea of ‘discrimination’. But as Mr Hesketh observed, the Human Rights Act does not define what ‘discrimination’ is. Indeed, in Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523 Gault J observed (at p 527) that discrimination is not capable of precise definition. Nonetheless Mr Hesketh helpfully drew our attention to various relevant observations from the Court of Appeal’s decision in Quilter:

"Discrimination generally is understood to involve differentiation by reference to a particular characteristic (classification) which characteristic does not justify the difference." (Gault J at p 527);

"The essence of discrimination lies in difference of treatment in comparable circumstances. For discrimination to occur one person or group of persons must be treated differently from another person or group of persons. Of course difference of treatment will not necessarily of itself amount to discrimination; and not all discrimination will be unlawful. In considering whether there is discrimination, it is necessary to define two things: first, the subject matter of and, second, the basis for the alleged discrimination. What does the difference of treatment relate to and upon what factor or factors is the difference based?"

"In deciding what is the subject matter of the alleged discrimination and upon what factor or factors the difference of treatment is based, it is appropriate to adopt an approach which accords with the broad purpose of anti-discrimination laws. That purpose is to give substance to the principle of equality under the law and the law’s unwillingness to allow discrimination on any of the prohibited grounds unless the reason for the discrimination serves a higher goal than the goal which anti-discrimination laws are designed to achieve." (Tipping J at p. 573);

"The spirit of the Bill of Rights and the Human Rights Act suggests a broad and purposive approach to these problems. Such an approach leads to the proposition that it is preferable to focus more on impact than on strict analysis" (Tipping, J at p. 575).

[81]Mr Hesketh also submitted that s.44(1)(b) effectively provides a working definition of ‘discrimination’ in the idea that the supplier of a service to the public cannot treat any person less favourably in connection with the provision of that service than would otherwise be the case by reason of any of the prohibited grounds of discrimination.

[82]Difference is an essential element of unlawful discrimination. That involves a comparison. It is clear enough that in this case we must compare the way in which the plaintiff is treated by Air New Zealand with the way in which other people, who do not have her kind of disability, are treated by Air New Zealand in order to assess whether or not the plaintiff is being treated less favourably. But what is the baseline? How does Air New Zealand treat passengers who do not have the plaintiff’s kind of disability?

[83]In essence the plaintiff’s case argues that, when Air New Zealand makes a particular fare available to the public, then she should be able to travel for that fare on terms that are no less favourable than would apply if she were not disabled. Anyone else who buys the fare is supplied by Air New Zealand with the oxygen they need during the flight. They do not have to pay a supplement or arrange their own supply of oxygen. Not so for the plaintiff. Air New Zealand either charges her an additional amount for the provision of the oxygen she needs, or puts her to the additional cost and inconvenience of arranging her own supply. The cost and inconvenience results in the passenger who needs extra oxygen because of a disability being treated less favourably than others who do not require extra oxygen.

[84]Mr Hesketh put his case at its highest when he submitted that, when all is said and done, there is an element of a right of access involved. Those who need extra oxygen to travel by air have to have that oxygen, otherwise they are not able to use the air travel services offered by Air New Zealand. Mr Hesketh argued that the relevant services can be identified in either of two ways, namely (i) that Air New Zealand provides an air travel service, an integral and non-severable part of which is the provision of the oxygen that allows all passengers to breathe in the aircraft cabin at altitude, or (ii) that, in addition to providing an air travel service, Air New Zealand separately provides a number of associated services including such things as making reservations, handling baggage, and (so he submits) providing extra oxygen in-flight for those who need it. But, whichever of these approaches is taken, in Mr Hesketh’s submission Air New Zealand is providing a service to the public which includes oxygen for everyone who travels at altitude, and extra oxygen for those who have the need of it.

[85]Mr Hesketh drew our attention to the fact that for international travel any extra oxygen is supplied by the airline; passengers are not allowed to bring their own equipment or supply their own extra oxygen. The same applies even now for domestic passengers who have come off an international flight and who have not the time or ability to make their own arrangements with BOC for supply of extra oxygen for the domestic sectors. In this context Mr Hesketh also drew attention to the way in which Mr May described circumstances in which extra oxygen is supplied in his evidence as ‘a service’: see the passage we set out at paragraph [28] above.

[86]Mr Hesketh rejected the idea that the provision of extra oxygen in flight might be seen as something closer to the supply of a medicine. Everyone needs oxygen to travel in an aircraft at altitude; it is just that the plaintiff has need of a bit more than most. In these respects he submitted that provision of extra oxygen is different from the administration of a medicine such as insulin for a diabetic passenger, or ventolin for an asthmatic passenger. In those kinds of cases he accepted that Air New Zealand could not be expected to provide the medicine, much less see to its administration. But since Air New Zealand supplies sufficient oxygen to meet the needs of the vast majority of its passengers, and because the supply of oxygen is an indispensable part of air travel, in Mr Hesketh’s submission Air New Zealand cannot escape the responsibility of providing the extra oxygen needed by the plaintiff. To do otherwise is to treat the passenger who needs extra oxygen less favourably than others.

[87]Mr Hesketh contended that the situation is somewhat analogous with the use of wheelchairs by those who have need of them in order to access aircraft. We were referred to a decision of Judge Crawford Lindsay, Q.C., in the Central London County Court (Unreported, CL 209468, 30 January 2004) in Ryanair v Ross. In that case the plaintiff needed a wheelchair in order to get from the check-in point at Stansted Airport to the aeroplane. He claimed that both Ryanair and Stansted Airport had discriminated against him in contravention of the Disability Discrimination Act 1995 (UK) because, if he did not have his own wheelchair with him, he had to pay a supplement for the use of another wheelchair. The decision refers to a number of regulatory provisions, Codes of Practice and Standards Agreements that were material. The Judge held that providing access to the aircraft was part of the service being offered by Ryanair, so that there was unlawful discrimination when Ryanair sought to charge for the cost of providing a wheelchair to go from check-in to the aeroplane. The Judge held, however, that Stansted Airport was not liable. The matter later came before the England and Wales Court of Appeal in December 2004: Ross v Ryanair Limited & Stansted Airport Limited [2004] EWCA Civ 1751. The Court upheld the decision in relation to Ryanair, but found that Stansted Airport was equally liable. The Airport was directed to pay one half of the compensation that had been awarded at first instance to the plaintiff against Ryanair.

[88]We think Mr Hesketh is right to accept, however, that the decision is not directly applicable to what we have to decide. Quite apart from differences in the relevant legislation, regulations and Codes of Practice that apply, the reality is that the supply of extra oxygen in-flight raises safety issues that go well beyond anything that might seriously be suggested in the case of wheelchair access to an aeroplane.

[89]An analogy was discussed during the course of argument. In the present case the plaintiff needs oxygen at night when she sleeps. But no one could seriously suggest that she is a victim of unlawful discrimination if the management of the hotel where she stays when away from home does not provide or pay for the extra oxygen she needs. How is that to be distinguished from the plaintiff’s need for extra oxygen in flight? Mr Hesketh’s answered that there is nothing unnatural about the situation of the hotel, and no one would expect to be supplied with oxygen when staying in such a hotel. That is because the service provided by hotels is accommodation, not oxygen. When one flies at altitude, however, oxygen is an indispensable part of air travel.

[90]As we have indicated, the starting point for Mr Hesketh’s argument was to say that the ‘baseline’ treatment (against which the way the plaintiff is treated should be measured) is that when Air New Zealand makes a particular fare available to the public, then a disabled person should be able to travel for that fare on terms which are no less favourable than apply if the person was not disabled. But what if the starting point of the discussion is changed? What if (as Mr Waalkens submits) the correct starting point is the proposition that no one expects an airline to provide medication for the illnesses or disabilities of passengers, much less to administer that medication. So for example, no one who is dependent on insulin for a diabetes condition ordinarily expects an airline to provide insulin while they are in flight. On this approach, the provision of extra oxygen and its administration in-flight is no more and no less than the provision of medication.

[91]Mr Waalkens submitted that there is no basis to conclude that the plaintiff is treated any less favourably than anyone else when Air New Zealand either requires additional payment for the extra oxygen the plaintiff needs, or when she has to incur a cost and any inconvenience of providing the extra oxygen for herself. He argues that the plaintiff is treated just like everyone else, and the additional cost or requirements for passengers who need extra oxygen in flight exist only because the plaintiff has special needs that others do not. Thus in his submission there is no contravention of s.44(1), either in respect of the domestic arrangements involving BOC or in respect of international flights where the extra oxygen is supplied at an additional cost. He also submitted:

[a]The provision of extra oxygen is not ‘integral’ to the air travel service that is ordinarily provided; it is simply a facility which Air New Zealand chooses (but cannot be compelled) to make available to passengers who have disabilities such as the plaintiff’s;
[b]In fact, some airlines do not offer extra oxygen in-flight at all. In this respect Mr Waalkens relied on the evidence of Mr Murray, who has a background in the aeronautical industry and now specialises in providing analytical services to industry and government. Mr Murray had surveyed the practices of a number of airlines regarding the supply of extra oxygen in flight for those needing it. The result of his survey was presented as a table, and we will attach it to this decision as Appendix A. Mr Murray also produced a survey carried out by the Cystic Fibrosis Trust in the United Kingdom in August 2003. We will attach a copy of that survey as Appendix B;

[c]Cases dealing with issues such as wheelchair access for disabled people are not comparable with the present situation; wheelchairs meet a need for access to an aircraft, but extra oxygen is a medical service that is not part of the air travel service itself;

[d]Consumer transport legislation in Canada, Great Britain and the United States all recognise that the supply of extra oxygen is a separate and distinct service which is seen as an auxiliary service to meet a medical need and for which airlines can charge.

[92]Mr Waalkens suggested the case of a person (A) in a nursing home who needs a certain level of care. The service in question is the provision of nursing care. There is another person (B) who, having a different complaint, requires more (or more expensive) nursing care. B is charged more for the service she receives than A is charged for the service he receives. But no one would suggest that A is therefore being treated less favourably than B because of his particular disability. The charge to the two patients is different only because of the extra care required by B. Mr Waalkens submitted that this could not possibly be considered unlawful or discriminatory. It does no more than reflect the increased costs of providing the additional service to B.

[93]Drawing all of these things together, Mr Waalkens concluded that the plaintiff does pay the same basic fare as any other passenger for the air travel services that Air New Zealand offers. There is no less favourable treatment for her. To the contrary, because Air New Zealand only levies a part-charge for extra oxygen on international flights (when in Mr Waalkens submission it would be entitled to recover the whole cost of providing the service), Air New Zealand treats the plaintiff and other customers requiring extra oxygen in a favourable and sympathetic manner.


Less favourable treatment: discussion and decision

[94]We think there is considerable force in a number of the submissions made by Mr Waalkens. As the plaintiff’s experience in travelling to the United States in 1997 establishes, the supply of extra oxygen in flight raises significant health issues. It will be recalled that the plaintiff’s need for extra oxygen is at a rate of one litre per minute. We do not know what flow she received from the oxygen she was supplied with, but it was too much. She became very ill; indeed she told us that at one point her life was thought to be in jeopardy. Clearly the administration of extra oxygen in flight is not something to which a ‘one size fits all’ kind of solution can be applied.

[95]Quite apart from the rate of delivery of oxygen required by different passengers, there are also difficulties in finding that Air New Zealand should be responsible for ensuring that individual passengers get exactly the oxygen they need in flight. What if, for example, someone travelling with extra oxygen takes the cannula out of their nose and then falls asleep. The situation is noticed sometime later. The passenger gets into difficulties. It can hardly be suggested that airline staff should have to take responsibility for assessing whether the cause of the passenger’s difficulties is too much oxygen or too little. Even if there were good reasons to believe more oxygen is required (perhaps because it is noticed that the cannula has been out of the passenger’s nose for some time), again airline staff can hardly be expected to know how much more oxygen needs be delivered, or for how long.

[96]Overlaying these concerns there is, of course, the concern for all of the other passengers on the aeroplane. Even if the oxygen is being provided from a concentrator rather than a cylinder of compressed gas, any accumulation of concentrated oxygen in the cabin gives rise to an inherently dangerous situation.

[97]We also agree with Mr Waalkens that no airline could be expected supply, much less to administer, a person’s medication such as insulin or ventolin as part of its standard operating service.

[98]But the inescapable difficulty with the argument for Air New Zealand in all of these respects is that - notwithstanding all of the safety and other concerns - the simple fact is that the airline does provide the service of extra oxygen on its international and long-haul flights. It manages to do so notwithstanding the medical issues and a very high degree of regulation. And, as the schedules provided by Mr Murray establish (see Appendices A and B), so too do many other airlines. As serious and complex as the safety issues may be, they are obviously not so overwhelming as to stop airlines from making extra oxygen available to those who need it. Nor are they so overwhelming as to prevent domestic passengers from being able to bring BOC leased equipment onto an aeroplane within the parameters that have been set by Air New Zealand.

[99]We are also concerned by the submission that was advanced on behalf of Air New Zealand, to the effect that its decision to make extra oxygen available is a purely voluntary one. Mr Waalkens said that it would be ‘unfair’ to elevate Air New Zealand’s willingness to provide extra oxygen for some international travel to a ‘service’ but that, even if it be found to be a service, it is not one that Air New Zealand could be compelled to provide. Indeed he went so far as to say that, if the outcome of this litigation were adverse to Air New Zealand, then there is a risk of the facility being withdrawn altogether.

[100]We will deal with the issues raised in the context of the defence provided by s.52 in the next section of this decision, but in our view the answer to the conundrum presented by the opposing arguments on this aspect of the case lies in an understanding the inter-relationship between ss. 44 and 52.

[101]The Act recognises the reality that there are circumstances where, in order to supply a service to the public in a way that does not treat persons with disabilities less favourably than others, the service provider will have to provide the service in a special way. This is consistent with what Tipping, J described in the Quilter case (supra) as a purpose of anti-discrimination legislation, namely to give substance to the principle of equality. We also respectfully agree with His Honour’s observation that in cases of this kind it is important to focus on impact, rather than strict analysis.

[102]We have come to the conclusion that Mr Hesketh is right to say that an integral part of the air travel service that Air New Zealand supplies to the public is the oxygen that its passengers need when at altitude to maintain life and health. If that were not so, people would not be able to travel by aeroplane, certainly not at high altitude. If (as Air New Zealand concedes) services such as check in, baggage handling, the provision of restrooms and access to the aeroplane are all integral parts of the service of air travel, then it is difficult to see how or why the provision of the oxygen that is essential for flying can be seen as a separate ‘facility’ and not an essential part of the service.

[103]For the majority of passengers this does not pose any problem. Aeroplanes are equipped to supply the oxygen ordinarily needed for flying at altitude, and do so. But for some passengers that is not enough. The oxygen they need has to be supplied in a special way. In our view this is exactly the sort of situation that ss.44 and 52 of the Act are intended to cover. We have more to say about the application of s.52, but in this part of the argument we have been persuaded by Mr Hesketh that passengers who must either pay a supplement, or go to the trouble of supplying some part of their own oxygen requirements, are treated less favourably by Air New Zealand than those who do not.

[104]The argument that the provision of extra oxygen is nothing more than the supply of a medicine overlooks the fact that everyone who flies at high altitude needs some oxygen over and above the oxygen that is found at altitude. The same is not true of the kinds of medicine that were discussed in argument, like insulin or inhalers for asthma. Putting aside the possibility of dealing with an emergency, in its standard operating procedures Air New Zealand does not supply insulin or inhalers to anyone. It supplies oxygen to everyone. It is true that there are medical issues raised by the supply of extra oxygen for particular passengers, but it does not in our view follow that oxygen is not something that is supplied by an airline.

[105]We are not convinced that the analogy of two different patients in a nursing home is as helpful to Air New Zealand’s case as was suggested. In that case both patients are receiving the level of care that they need, and we certainly agree with Mr Waalkens that neither is being treated more or less favourably than the other just because the cost of meeting the individual needs of each is different. But applying the same principle to the situation of passengers in an aeroplane, it rather seems to us to support an argument that people are treated equally by the airline when they are provided with the oxygen they need at altitude – even if the cost and complications of achieving that is greater in some cases than others.

[106]To approach the matter in the way for which Air New Zealand contends would be to accept the legal consequence that a flat refusal to carry passengers such as the plaintiff would be legitimate. Again we agree with Mr Hesketh on this point. Even acknowledging that a discussion about access by wheelchair raises different questions, ultimately this is a debate about the extent to which those who have the plaintiff’s kind of disability can access air travel. We are not willing to accept that the effect of the Human Rights Act is that, because of her condition, Air New Zealand is free to refuse to carry the plaintiff.

[107]Nor do we think that it can ever be a sufficient answer to a claim under s44 of the Act to say that there is no less favourable treatment because, although there are differences in the treatment of a disabled person, the only reason for the differences is the disability. To accept such an argument would be to undermine the legislation in a potentially significant way. The obvious purpose of these provisions in the Act is to see that, despite differences of treatment that are necessitated by the disability, the service provided to all should be the same irrespective of disability - unless and only to the extent that a service provider cannot reasonably be expected to provide the service in the special way demanded by the disability without imposing more onerous terms.

[108]For these reasons, we are persuaded that in providing air travel services to the public, Air New Zealand treats those who need extra oxygen in flight - i.e., in addition to that which is needed by passengers who do not have the plaintiff’s kind of disability - ‘less favourably’ (within the meaning of those words in s 44(1)(b) of the Act) than others who do not have the plaintiff’s kind of disability.

[109]We hasten to say that there is no evidence that Air New Zealand has ever refused to carry passengers because they need extra oxygen at altitude. To the contrary, as we discuss in the next section of our decision in more detail, we think Air New Zealand has taken a number of responsible and inclusive steps to meet the needs of passengers who have the kind of disability from which the plaintiff suffers.


Can Air New Zealand reasonably be expected to supply its services without requiring more onerous terms?

[110]Our conclusion that Air New Zealand treats passengers with disabilities of the kind suffered by the plaintiff less favourably than its other passengers when it imposes extra conditions on them is not the end of the matter. Mr Waalkens argued that if (contrary to his first argument) we should find that a breach of s.44(1) is indicated nevertheless the steps taken by Air New Zealand to meet the needs of those who must have extra oxygen in flight bring Air New Zealand within the provisions of s.52(b) of the Act:

"It shall not be a breach of section 44 of this Act for a person who supplies facilities or services –. .
(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."

[111]As with s.44, we understand that there are no authorities in New Zealand which deal directly with the interpretation of s.52 in this kind of situation. Instead Mr Hesketh sought assistance from comparable provisions including the Disability Discrimination Act 1995 (UK) (referred to in the Ryanair decision, supra), the Australian Disability Discrimination Act 1992 and the Canadian Human Rights Code. He also placed particular emphasis on the way in which the Supreme Court of Canada dealt with s.8 of the Human Rights Act SBC 1984 (as amended in 1996) which provided:

"A person must not, without a bona fide and reasonable justification . . .
[b] Discriminate against a person or class of persons with respect to any accommodation, service or facility customarily available to the public,
because of the race, colour, ancestry, place of origin, religion, marital status, physical or mental disability . . .".

[112]The section is different from the New Zealand provisions. It combines both the liability and exception/defence provisions that are dealt with separately in ss.44 and 52 of the Human Rights Act 1993 (NZ). Nonetheless, Mr Hesketh submitted that the approach of the Supreme Court of Canada in British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) [1999] 3 SCR 868 (also called the Grismer case) should inform our analysis of the comparable provisions in New Zealand. In particular he referred us to various passages from the decision which make it clear that " ... those who provide services subject to the Human Rights Code must adopt standards that accommodate people with disabilities where this can be done without sacrificing their legitimate objectives and without incurring undue hardship." (p 894, para 44; emphasis added). He also drew our attention to the following passages:

"...in a case where accommodation is flatly refused there must be some evidence to link the outright refusal of even the possibility of accommodation with an undue safety risk. If the government agency can show that accommodation is impossible without risking safety or that imposes some other form of undue hardship, then it can maintain the absolute prohibition" (p 893 para 43)

"All too often, persons with disabilities are assumed to be unable to accomplish certain tasks based on the experience of able-bodied individuals. The thrust of human rights legislation is to eliminate such assumptions and break down the barriers that stand in the way of equality for all" (p 873, para 2);

"The Superintendent alluded to the cost associated with assessing people with [a condition giving rise to reduction of peripheral vision], although he offered no precise figures. While in some circumstances excessive cost may justify a refusal to accommodate a person with disabilities, one must be wary of putting too low a value on accommodating the disabled. . . .I do not assert that cost is always irrelevant to accommodation. I do assert, however, that impressionistic evidence of increased expense will not generally suffice." (pp 891 to 892, para 41)

[113]Mr Hesketh submitted that we should approach the present case on the basis that the plaintiff should be provided with what she needs to access Air New Zealand’s services free of charge, unless Air New Zealand can establish that it is not reasonable for it to have to provide the facility without cost. The Grismer case was argued to stand as authority for the proposition that the threshold of what is ‘reasonable’ in any case is a high one, designed to ensure reasonably equal access by disabled people to services.

[114]Because of the association of the subject matter of s.52 in the New Zealand Human Rights Act and the other provisions that we have referred to, both counsel tended to refer to s.52 as the ‘reasonable accommodation’ defence. We have no particular objection to labelling s.52(b) in that way, and referring to authorities in other jurisdictions, but only as long they are kept in proper context. When all is said and done, our task is to interpret and apply the words of s.52(b) as we find them in the New Zealand legislation. The word ‘accommodation’ does not appear at all and, more importantly, the phrase that is used in s.52 to set the standard required of a service provider such as Air New Zealand is whether or not the provider can reasonably be expected to supply the service in such a way as to meet the special needs without requiring more onerous terms than those on which the service is made available to other persons.

[115]In the present case we are concerned with the provision of oxygen to people who travel by air. The plaintiff’s disability requires that part of the service supplied by Air New Zealand must be provided to her in a special manner (either from a gas bottle or a concentrator). The real question is whether it is unreasonable to expect Air New Zealand to provide either of those facilities without requiring more onerous terms.

[116]At this point we think it important to consider the BOC arrangements for travel within New Zealand, and the oxygen that is provided by Air New Zealand to international travellers, separately.

[117]We take the arrangements for domestic passengers first. In this situation the ‘more onerous terms’ involve putting the passenger to the cost and undoubted inconvenience of arranging for an oxygen cylinder (or cylinders) to be provided to meet the exigencies of the travel they are going to undertake.

[118]We are satisfied that Air New Zealand cannot reasonably be expected to provide extra oxygen in the special way that is necessary because of the plaintiff’s disability without requiring the sort of arrangements that have been adopted since 2002 in the case of domestic air travel. There are a number of reasons, including:

[a]As we have explained, the exact requirement of each passenger who needs extra oxygen in flight is something that is peculiar to each passenger. This is not a question of cost, but passenger safety. We do not think Air New Zealand can reasonably be expected to provide a service which responds to (and ultimately takes responsibility for) the individual needs of each passenger who requires extra oxygen in flight;
[b]When it comes to supplying extra oxygen for those who need it, we do not see the situation as being different in kind from situations such as the passenger whose disability demands that they be accompanied by someone to support them, or where there is a need to stretch out over several seats, or travel in business class in order to be able to elevate a leg. It is difficult to accept that the airline must provide the facilities required in those cases without charging for them in an appropriate way – as Mr Waalkens submitted, Air New Zealand is a commercial airline not a philanthropic organisation;

[c]Apart from these factors, we accept the substantial body of evidence given by Air New Zealand concerning the way in which the BOC solution was arrived at. We appreciate that the outcome was not to the plaintiff’s liking, but we are satisfied that there has been a process of thoughtful consultation and that the solution represents a responsible (and reasonable) reaction to the many different influences and factors that had to be taken into account. As Mr May said in his evidence, the system empowers the person who has the need for extra oxygen in flight to see that the equipment that they bring to the aircraft is set up in the configuration that they require, and that it will deliver the particular flow of oxygen that meets their needs (although it was in the context of an international flight, it will be remembered that it was uncertainty surrounding these issues that contributed significantly to the plaintiff’s distress when she flew to Melbourne in 1999);

[d]Air New Zealand’s responsibility for ensuring the safety of all passengers on any given flight is such that it seems to us not only reasonable, but absolutely inevitable, that Air New Zealand must control and therefore be entitled to stipulate what kind of equipment can be used, and how it is to be packaged and made available to bring on to the aircraft. The solution of stipulating that the equipment must be supplied from a given supplier (which itself understands and can meet Air New Zealand protocols in that regard) makes good sense.

[119]That leaves the question of the additional cost of $US75.00 per sector that is charged by Air New Zealand for use of extra oxygen on international/long haul routes. Can the airline reasonably be expected to provide that extra oxygen without imposing the additional charge?

[120]It is clear enough that when it comes to international travel, the BOC kind of solution that has been adopted for domestic routes is impracticable. This is not just a question of the high level of international regulation (which, given the safety issues concerned, is hardly surprising) but also the fact that, because journeys are longer, a bigger supply is needed. Since the September 2001 attacks on the World Trade Centre in New York, there are also heightened concerns about any passengers bringing items such a cylinder of compressed gas onto an aeroplane. It is virtually impossible to assess what is contained in a sealed oxygen container.

[121]It was not strenuously argued for the plaintiff that she should be able to avoid the cost increment by providing her own gas equipment, or her own concentrator. We mention the matter, however, because the proposed new FAA Rule that was issued for discussion in July 2004 does suggest at least the possibility of ‘personalised’ concentrators that are small enough for an individual passenger to be able to bring their own concentrator into an aircraft cabin. It is, therefore, important to note that we did not hear enough evidence about that potential solution to form any judgement as to whether it is a viable alternative to the present regime.

[122]When a passenger books an international flight he or she will tell the agent that extra oxygen is required. A MEDA form is then obtained, which explains the medical condition and the specific requirements of the passenger (for example, whether intermittent or continuous flow is needed, or the rate of flow required). Staff at Air New Zealand assess the MEDA form against criteria set by the airline’s Chief Medical Officer so as to be satisfied that the passenger is fit to travel. If so, the booking is confirmed and the agent is made aware of the extra charge or charges. Air New Zealand then alerts the cabin crew of the flight concerned, the pilot (who of course has the ultimate responsibility for the aircraft and all passengers), the logistics personnel who will arrange for the oxygen to be delivered to the aircraft, the relevant staff at the departure and arrival airports, and the staff at engineering stores who will see to the dispatch of the equipment needed. If the oxygen is to be supplied from cylinders, then they are dispatched to the departure airport a day or two before the flight.
[123]Because Air New Zealand supplies any extra oxygen needed on international flights, the question in respect of those routes is really a financial and economic one. In this respect we have to say that some of the evidence given by Air New Zealand was short on specifics. For example, Mr May’s evidence was that initially Air New Zealand bought 5 concentrators at a cost of ‘about’ $NZ14,000 each. But it emerged during examination of the witnesses that by the time of the hearing Air New Zealand might have 7 or perhaps 8 concentrators. He also told us that if Air New Zealand was unable to make the $US75 charge then that would represent a cost to Air New Zealand of ‘approximately’ $NZ50,000 per annum (although we have to say that there are very considerable uncertainties about how that figure was arrived at).

[124]Mr Hesketh was critical of the fact that there was, as he put it, no clear evidence of what costs were really being recovered from the $US75 charge, or what it would mean to Air New Zealand’s cost structure if Air New Zealand either did not or could not impose such a charge. There were other criticisms besides. The criticisms are relevant because, as s.92F(2) of the Act makes clear, the onus of establishing the s.52 defence lies squarely on Air New Zealand.

[125]Mr Hesketh went on to submit that such evidence as was put forward by Air New Zealand on this topic did not establish that it would suffer (with reference to the Grismer decision) ‘undue hardship’ to if it were unable to recover the charge. If the test in New Zealand were that of ‘undue hardship’ then we would have agreed that the evidence for Air New Zealand did not cross that threshold. Even accepting all of the evidence about the volatility of the airline industry and the consequences that might flow if Air New Zealand were unable to recover the $US75 per sector charge, we are not willing to accept that inability to secure extra pre tax revenue of $NZ50,000 per annum (if that is what is really involved) would cause ‘undue hardship’. The sum needs be considered 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)

[126]But, as we have noted, the test under the Act in New Zealand is not that of ‘undue hardship’. While the Grismer decision is an helpful reminder that we should be wary of putting too low a value on accommodating the disabled, it does not state the law that we are obliged to apply. The question under s52 of the Act in New Zealand is whether Air New Zealand ‘ ... cannot reasonably be expected ...’ to provide extra oxygen for passengers who need it without charging the $US75 supplement.

[127]If one were to try to account for all of the costs that Air New Zealand has to meet in order to provide extra oxygen on international flights, the exercise would have to take into account (the following list of considerations may not be exhaustive):

[a]The capital cost of the equipment: With respect to the concentrators, as we have noted in 1998 or thereabouts Air New Zealand acquired 5 of them at a cost of ‘about’ $NZ14,000 (the last one acquired before the hearing in the Tribunal had been acquired in 2000 for $NZ14,200). They have a life span of between 3 to 7 years (we do not know why there is such a wide range). Not all are serviceable at any given time, no doubt because they are taken out of service from time to time for maintenance. At the time of the hearing Air New Zealand may have had 7 or 8 of them. Having regard to their life span, we assume that some (or perhaps all) of the concentrators that were initially acquired have been replaced. With respect to cylinders for compressed gas, we do not know how many there are, but we were told that they have a cost of $US850 each;
[b]The cost of maintaining the equipment: As we have noted the concentrators are treated as aircraft componentry and have to meet certain maintenance protocols as a result. The equipment is delivered to the airline’s engineering division. That involves a logistical exercise in co-ordinating the location and movement of equipment around the airline’s network. There is a cost of staff time associated with that. As for the servicing itself, there is obviously a cost for the engineering time involved. Mr May gave us figures of $NZ125 and $NZ450 as estimates respectively for the time cost involved in co-ordinating the movement of the equipment and servicing it (we take these to relate to the concentrators in particular).

[c]Logistics: When a passenger asks for extra oxygen to be available on any given flight, it is necessary to ensure that the required equipment is at the departure airport (wherever that may be) and is either installed into the aircraft (in the case of the concentrators) or filled and ready to be used (in the case of compressed gas from bottles). Again these activities involve staff costs. Furthermore, 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 $NZ200 associated with the shipping of dangerous goods via a freight forwarding agency;

[d]Compliance costs: There are costs associated with ensuring the equipment is compliant with the various regulations and restrictions that apply;

[e]Training and other staff costs: There are costs associated with training required for pilots, cabin crew and other staff in connection with the use of the equipment and the business of ensuring that the appropriate equipment is available in working order at the relevant departure airport at the right time.

[128]Mr May offered evidence that it costs something like NZ$776 to provide extra oxygen on any given flight. It is not altogether clear whether that figure relates to supply from a concentrator or a cylinder (we are inclined to think that it concerned supply from a cylinder) but, whichever it is, the figure does not include any allowance for capital cost or depreciation. Mr May also told us that the charge of US$75 per sector for international flights represents a recovery of only a maximum of about 20% of the actual costs.

[129]We think that Mr Hesketh was right to be critical of the lack of precision in the evidence from Air New Zealand on this important topic. We also respectfully agree with the observation in the Grismer case that, in cases of this kind, impressionistic evidence of increased costs will not generally suffice. But even taking those matters into account, we think it would be unrealistic not to recognise that Air New Zealand does incur very real additional costs when it supplies extra oxygen for those who need it on international flights.

[130]It also seems to us highly unlikely that the charge of US $75 per passenger is enough to fully recover the costs Air New Zealand incurs to provide the extra oxygen. We say ‘highly unlikely’ because we do not know the actual figures. If a full accounting were to be carried out, it would have to reflect – in addition to the matters listed at paragraph [127] above - 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. Our best information in that regard is as set out in paragraph [71] above, namely that in 2001 there were 235 international sectors where requests for extra oxygen were made, and in 2003 there were 170 passengers (involving, say, around 300 sectors) who asked for extra oxygen to be arranged. In very round terms at US$75 per sector that represents a recovery of about US$22,500. Thus it is only if the number of passengers being charged for extra oxygen on international flights is very much greater than was indicated to us that Air New Zealand might have any prospect of recovering anything close to the real cost of providing the extra oxygen).

[131]We draw the following conclusions from the evidence we heard and from the foregoing analysis:

[a]The supply of extra oxygen for international flights does require Air New 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 charge 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 the extra oxygen).

[132]In his submissions Mr Waalkens referred to a number of considerations which he invited us to take into account in Air New Zealand’s favour on this issue. Some we do not see as relevant, because of the view that we have taken in respect of the applicability of s.44 of the Act. Others have in effect been addressed in the foregoing discussion about costs. There is, however, one further matter that ought to be noted.

[133]As Appendices A and B show, most airlines offer extra oxygen for those who need it, but many (like Air New Zealand) impose an extra charge for doing so. The extra charges vary from airline to airline. Mr Waalkens submitted that the survey establishes that Air New Zealand’s practice is not out of line with industry practice generally.

[134]We were also referred to various statements of practice and expectations in other countries. So, for example, Mr Waalkens drew our attention to a brochure issued by the Canadian Transportation Authority "Taking Charge of the Air Travel Experience – A Guide for Persons with Disabilities" (March 2004) in which it is explicitly stated that the supply of supplementary oxygen is something that an airline can charge extra for (the Agency takes the view that the supply of extra oxygen meets a medical need). He also made the point that Air New Zealand’s extra charge passes scrutiny under the guidelines advocated by the Cystic Fibrosis Trust in its statement (Appendix B to this decision) because it is a modest amount that does no more than contribute to the costs incurred by the airline to provide extra oxygen.

[135]In his evidence, Mr May referred to the US Air Carrier Access Act 1986, and a document entitled "New Horizons Information for the Air Traveller with a Disability" which he described as the ‘consumer version’ of that Act. The document makes it clear that carriers under that legislation are entitled to add ‘reasonable, non-discriminatory’ charges for medical oxygen used on board an aircraft.

[136]The overall thrust of the evidence and submissions was that Air New Zealand’s practice should be judged to be reasonable because it is in step with industry practice. It was also argued that, if we were to find against Air New Zealand, then Air New Zealand would be at a significant disadvantage in comparison with the other airlines with which it competes in a world-wide market.

[137]We have some reservations about accepting as a general proposition that, since Air New Zealand is in step with industry practice, it follows that its approach to the provision of its services to the plaintiff must be within the defence provided by s.52 of the Act. In and of itself, the fact that a given practice is an industry ‘norm’ cannot in our view ever be a complete answer to a claim under the Act. In every case the question must focus on the practice and its impact. But having said that, we do accept that industry practices are not altogether irrelevant when it comes to considering what should or should not be expected of a service provider like Air New Zealand when s.52 is in issue. And we also accept that the assessment in this case needs to recognise the very high level of regulation that exists (for good reason) in the international airline industry.

[138]Taking these various matters into account, we come back to the question we have to decide, namely whether Air New Zealand ‘ ... cannot reasonably be expected ...’ to provide extra oxygen for passengers who need it on international flights without charging the $US75 supplement.

[139] In our assessment it cannot. We see the situation in this case as being exactly the kind of situation that ss.44 and 52 of the Act are intended to cover.

[140]In order for the plaintiff 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.

[141]Air New Zealand certainly does not appear to us to be making any extra profit from the plaintiff by charging her an extra sum because of her disability.


Conclusion

[142]For the foregoing reasons, we have concluded:

[a]When Air New Zealand either requires passengers who need extra oxygen in flight to arrange for oxygen to be supplied by BOC gases (for domestic routes) or charges a cost of US$75 per sector for oxygen supplied by Air New Zealand (on the international/long haul routes) it does treat the plaintiff less favourably in the provision of air travel than it treats other members of the public to whom those services are offered; but
[b]In all the circumstances, Air New Zealand cannot reasonably be expected to provide the service of additional oxygen for passengers who need it without requiring more onerous terms, namely:

[i]In the case of domestic routes, the arrangements pursuant to which passengers have to obtain their own in-flight supply of oxygen from BOC gases in advance of travelling, and pay for that,

[ii]In the case of international routes, in charging a contribution towards the overall cost of providing the extra oxygen in the sum of $US75 per sector.

[143]We have been persuaded that the s.52 defence to the plaintiff’s claim under s.44 of the Act is established. The plaintiff’s claim must be dismissed.

[144]There is an important postscript. It is this. Our assessment of what can and cannot reasonably be expected has been made on the evidence that was available to us. If technology changes, and if a solution emerges that is of a kind which Air New Zealand can reasonably be expected to adopt, and which does not justify the imposition of more onerous terms on the passenger, then our conclusion in future might well be different. We should say, however, that the experience of the working party set up by Air New Zealand to deal with these problems is an indication that Air New Zealand is aware of these issues. We hope and expect that Air New Zealand will continue to be responsive to changing technology and its obligations under the Human Rights Act to treat all passengers alike.


Costs

[145]We were not addressed on the question of costs, and we have no firm view as to how they should be allocated in this case. We also recognise that there may be evidence which bears on the assessment but which has not yet been presented to us. Nonetheless we observe that, although the plaintiff has not succeeded in obtaining the relief she contended for, she was successful in her argument regarding s.44 of the Act. As we have also noted, there is clearly an element of this having been a ‘test case’. In the circumstances, it would not surprise us if the parties were to agree that costs in the matter should be left to lie where they have fallen, and that no order for costs will be sought from the Tribunal by either side.

[146]In case that approach is not acceptable to both parties, we direct that any application for costs will be dealt with according to the following time-table:

[a]Any application for costs to be filed by way of memorandum accompanied by any supporting materials within 28 days from the date of this decision;
[b]Any submissions or other materials in response to be filed and served within a further 21 days;

[c]Unless either party indicates to the contrary, the Tribunal will deal with the question of costs on the basis of those papers and without any further hearing.

__________________ __________________ _____________________

Mr R D C Hindle Ms P A K McDonald Mr G J Cook

Chairperson Member Member

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