Moxon v Westbus Pty Ltd [2001] NSWADT 159 (24 September 2001)

Last Updated: 3 October 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Moxon -v- Westbus Pty Ltd [2001] NSWADT 159

PARTIES: APPLLICANT

John Moxon

RESPONDENT

Westbus Pty Ltd

FILE NUMBERS: 001098

HEARING DATES: 14, 15, 16/05/2001

SUBMISSIONS CLOSED: 16/05/2001

DECISION DATE: 24/09/2001

BEFORE: Bartley R - Judicial MemberMcDonald O - MemberStrickland J - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Druett and Cooper (NSW) 2000 HREOC 17.4.2000

Langtry v Niland (1981) 2 NSWLR 107/108

Scott v Telstra Corporation Ltd (1995) A & NZ Equal Opportunity Law Practice 92-717

APPLICATION: Disability Discrimination - Goods and Services

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

J Griffiths, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

C Ronalds, barrister

ORDERS: Complaint dismissed.

Reasons for Decision:

1 On 5th April l997 Mr John Moxon (the Complainant) made the following complaint to the President of the Anti-Discrimination Board against Westbus Pty Ltd (the Respondent).

2 The Complaint stated:

I wish to lodge a complaint on my own behalf against Westbus in relation to the bus service it offers to the public. As a person with a disability, which requires that I use a wheelchair, I am unable to independently access and/or fully utilise the bus service offered by Westbus.

On 29 March, 1997 at approximately l.10 p.m. at Parramatta Railway Station (Darcy Street) I attempted to board a Westbus vehicle No MO 7973 which carried a sign indicating that it would be going on Route 600 to Knightsbridge via Rogans Hill. I was informed by the driver, Avon, that the bus had no ramp, hoist or other device, which would enable me to board. Avon also stated that no Westbus has such facilities. When asked if that mean that I am unable to use any of Westbus buses he replied `yes'

On 3 April l997 at approximately 2.40 p.m I telephoned Westbus and spoke with a person who gave her name as `Daniela' who confirmed that Westbus has no buses that provide access for people who use wheelchairs.

Until independent access is provided I cannot use any Westbus bus.

The failure of Westbus to provide access which would allow me to independently use the buses prevents me from enjoying my right to fully participate in the community.

By not providing access Westbus is clearly discriminating against me on the basis of my disability in contravention of the Anti-discrimination Act 1977.

I would therefore like Westbus to install access facilities, which will enable me to use and enjoy the bus services to the same extent individuals who do not have mobility disability.

I am able to be contacted by writing to the above address.

3 A copy of the complaint was sent to the respondent on 7th April l997

4 The Complaint was based on section 49M and 49C of the Anti-Discrimination Act 1997.

5 Section 49M provides:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms in which he or she provides the person with those goods or services

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of goods and services would impose unjustifiable hardship on the person who provides the goods or services.

6 Section 49C states what constitutes unjustifiable hardship. It provides:

In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into accounting including:

(a) the nature of the benefit or detriment likely to accrue or be suffered by any person concerned, and

(b) the effect of the disability of a person concerned, and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship

7 This Tribunal on 21st September l999 found that whilst Westbus Pty Ltd had indirectly discriminated against the Complainant on the grounds of disability, the Respondent had not breached the Anti-Discrimination Act 1997 because the respondent had made out the defence of unjustifiable hardship

8 The Tribunal dismissed the Complaint.

9 The Complainant lodged an appeal against the decision on 25th July 2000 and having heard the appeal, the Appeal Panel, in allowing the appeal made the following orders:

(i) The Appeal is upheld.

(ii) The decision of the Tribunal made on 21st September 1999 that West Bus Pty Ltd has made out the defence of `unjustifiable hardship' under section 49M(2) of the Anti-Discrimination Act 1977 is set aside.

(iii) This aspect of the case is remitted to be heard and decided by the Tribunal as originally or similarly constituted

(iv) No order as to costs

10 Each Party is in agreement that all the findings of the Tribunal made at the earlier hearing stand except the finding that the Complaint be dismissed on the grounds the Respondent had made out the defence of unjustifiable hardship under s 49M(2) of the Act.

11 Each party agreed that the proof of the exception lay on the Respondent due to the operation of s 109 of the Anti-Discrimination Act 1977.

12 At the hearing additional evidence was submitted in respect of the present factual situation concerning bus routes 600, 606 and 607 and the finances of the Respondent. The Tribunal accepts the submission of the Respondent that the Complaint (if it did apply generally) had been narrowed to only bus routes 600, 606 and 607

13 Counsel for the Respondent submitted that the time for assessing the defence of unjustifiable hardship was the date of the Complaint, 5th April l997. Further that any new evidence tendered to this hearing unrelated to the `justifiable hardship `issue should only be considered in deciding what orders the Tribunal would make if it found the `justifiable hardship' issue not made out, and on that basis the Complaint was proved.

14 Counsel for the Complainant has submitted that the material that was before the Tribunal has been substantially updated by each party and that there is no real doubt that the Tribunal is under a legal obligation to have regard to that fresh material now in determining whether or not the defence of unjustifiable hardship is made out at the relevant times; not just April l997 but ongoing until today. It was submitted that the complaint was an ongoing complaint, that until a remedy is provided for the discriminatory conduct about which the Complainant has complained he is still being discriminated against until the discriminatory conduct is removed.

15 Each party agreed that the fresh evidence tendered to the Tribunal at this hearing could be taken into account in deciding the kind of orders the Tribunal would make if it found the Complaint proved.

16 The Tribunal has considered the written and oral submissions made by the parties and finds that the relevant time the Respondent has to prove the exception in s 49(2) is April l997 (the date of the complaint): See Druett and Cooper (NSW) 2000 HREOC 17.4.2000 para 11: Langtry v Niland (1981) 2 NSWLR 107/108.

17 The Respondents have tendered sensitive business records as part of their defence of unjustifiable hardship. The Tribunal has issued a permanent suppression order in respect of this material. In this decision we propose to follow the method adopted for similar suppressed material in Scott v Telstra Corporation Ltd (1995) A & NZ Equal Opportunity Law Practice 92-717 at p 78401.

Unjustifiable hardship

18 S 49C of the Act deals with the determination of unjustifiable hardship (Para 6 of this decision). The matters to be taken into account relevantly include, but are not limited to,

(i) benefits and detriments to any person concerned

(ii) the effect of the disability of the complainant.

(iii) the financial circumstances of the respondent and estimated cost of provision of services that complied with the Act.

19 The complainant desired to use the bus service for possible recreational opportunities that he might reach via public transport.

20 He did not suggest that he was otherwise unable to access those services.

21 He did not suggest that the non-availability of bus transport created a financial penalty for him.

22 He did not put his desire to use the bus service higher than:

(a) It would be nice to use public transport;

(b) He was actively pursuing the principle that public transport should be accessible to persons who need to use wheel chairs for personal mobility;

(c) In the period since the first hearing of this matter he had found that the problem of getting from his home to the one bus route that had become accessible (Route 600) was overall too difficult and the service was not an ongoing option for him;

(d) He did not suggest that he depended on, or would depend on the bus service (if it was accessible) for any essential transport, eg travel to work or medical treatment or essential shopping.

23 The Tribunal considered the evidence of both hearings on the question of detriment to the Respondent if it were required to provide wheel chair access to all of the buses it used on the 600, 606, 607 routes.

24 At the time of the complaint the only equipment option open to the Respondent was to retrofit an additional door with lift mechanism, in the middle (kerb) side of the bus or, alternatively, buy new buses with such a door installed. The cost of such fitment was of the order of $25,000 per bus. Retro fitting created the problem of buses being unavailable during fitment. New buses required the availability of additional capital. On the face value of the original complaint all buses would have required fitment - on the submissions put to the tribunal only 45 buses would have needed to be fitted. Alternative equipment options of low floor buses with tilting access did not function satisfactorily on the routes that were open to the Respondent at the time.

25 The detriment to the respondent s not confined to the costs of side doors and lift mechanism. The Respondent would bear operating penalties due to the delays in using the side doors to load a wheel chair passenger. Failure to meet timetables has an implication for other passengers seeking to make connections. Creating timetables with a built in cushion for delays requires more buses to deliver equivalent trips. Buses with side doors have limited use for the school excursion trade, which provides significant off peak income for the respondent.

26 The minimum capital cost is of the order of $25000 x 45 = $1,112,500 plus recurrent costs of making the change and then running the service.

27 The loss of seating space in buses, when provision for wheel chairs is made, has penalties for other users in peak hours and for the potential use of the bus for school excursions. The loss of seating space reduces the resale value of the bus and effectively increases the changeover cost.

28 The Respondent tendered the Financial Statements of itself and of its principal shareholder over the relevant time period. Having made the decision that the relevant time at which unjustifiable hardship is to be considered is the date of the complaint, then any financial data after this date should not be considered unless, having found no unjustifiable hardship existed, the financial material could be relevant when the Tribunal considered the orders that might flow from such a finding.

29 The Tribunal considered data relevant to 5 April 1997. The Tribunal considered the ratio of liabilities to assets. It considered the profitability of the Company and the likelihood that it could at that time wisely borrow additional funds to cover the cost of retrofitting of access doors and lift mechanisms or buses. The Tribunal was assisted in this evaluation by the evidence of the Westbus Company Officers.

30 The Tribunal did not consider the detriments or benefits of transferring accessible buses from Penrith to the relevant routes as this possibility became available after the effective date of this complaint.

31 In addition, there is no option put to us or referred to in the evidence that would have enabled the Respondent to avoid unlawful conduct in April 1997.

32 Balancing all of these matters the Tribunal is of the view the Respondent has proved the defence as set out in s 49M(2).

Order

33 The complaint is dismissed.