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					                                                    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
                                           2

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
                                           3

          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
                                           4

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
                                             5

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
                                            6

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
                                             7

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
                                            8

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.
                                           9

[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-
                                             10

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.
                                             11


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.
                                            12

          [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
                                           13

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:

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;

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;

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
                                          14

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:

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

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
                                           15

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
                                           16

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] 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] 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 [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
                                           17

     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
                                            18

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
                                            19

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:

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;

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;

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;

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.
                                            20

[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
                                            21

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.
                                            22

[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.
                                           23

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 –

That person‟s disability requires those facilities or services to be provided in a special
manner; and

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 . . .”.
                                            24


[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
                                            25

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:

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;

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;

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);
                                            26

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.
                                           27

[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.
                                           28


[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):

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;

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).

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;

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

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.
                                          29

[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:

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;

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
                                            30

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.
                                            31


Conclusion

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

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

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:

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,

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.
                                          32


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:

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;

Any submissions or other materials in response to be filed and served within a further
21 days;

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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