Ellson v Yellow Corporation - [2009] SAEOT 5

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
ELLSON v YELLOW CORPORATION & ORS
[2009] SAEOT 5
Judgment of Her Honour Judge Shaw, Member Mr D Shetliffe and Member Mr H Yapp
12 June 2009
DISCRIMINATION LAW
Complainant accompanied by guide dog - request by third party for taxi service for complainant - respondent taxi driver refused to provide service. Discrimination alleged by the complainant on the ground of impairment - whether vicarious liability.
Held: Taxi driver misunderstood the nature of the request. No refusal on the ground of impairment - taxi driver not in breach of Equal Opportunity Act. Observations as to vicarious liability - claim dismissed against all respondents.
Passenger Transport Act 1994; Equal Opportunity Act 1984, referred to.
Hills v State of South Australia (2002) 82 SASR 102; Clarke v Behrad [2008] SAEOT 15, considered.

ELLSON v YELLOW CORPORATION & ORS
[2009] SAEOT 5
Shaw DCJ and Members Mr D Shetliffe and Mr H Yapp
Introduction

On 13 March 2007, the complainant (“Mr Ellson”), travelled from Kangaroo Island to Adelaide Airport via Rex Airlines. Mr Ellson is visually impaired and was accompanied by his guide dog.
Mr Ellson set down at the old International Terminal (“the Rex terminal”). He required a taxi to transport him and his guide dog from the taxi rank at the Rex terminal to Adelaide.
A fellow traveller from Kangaroo Island, Mr Amor, accompanied Mr Ellson from the baggage collection carousel to the taxi rank in order to assist him to hail a taxi.
The first respondent (“Yellow Cabs”), is an accredited taxi operator and centralised booking service pursuant to the provisions of s 27 and s 29 of the Passenger Transport Act 1994 (SA).
The second respondent (“GMB Brothers”), is an accredited taxi operator under the Passenger Transport Act 1994 (SA) and a member of the first respondent. GMB Brothers own a fleet of taxis and engage individuals to drive those taxis. The second respondent was unrepresented. Mr Singh, an officer of GMB Brothers appeared on behalf of GMB Brothers.
The third respondent (“Mr Katyal”), was the driver of taxi 3571 on the date of the incident. He is an accredited taxi driver and was engaged by GMB Brothers to drive taxis. Mr Katyal was unrepresented. Taxi plate 3571 was owned by Pro Paint’n Panel and rented to GMB Brothers. It carried the logo and signage of Yellow Cabs. The Yellow Cabs’ despatch system was installed in the taxi.
On 13 March 2007, Mr Katyal drove taxi 3571 to the Rex terminal taxi rank. Mr Amor spoke to Mr Katyal through the passenger side front window for the purpose of hailing a taxi for Mr Ellson and his guide dog. It is alleged that Mr Amor requested Mr Katyal to allow Mr Ellson and his guide dog to enter his taxi and that Mr Katyal refused that request. It is alleged that this refusal contravened s 76(1)(d) and s 88(a) of the Equal Opportunity Act 1984 (SA) (“the Act”).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SAEOT 5
Decision Date: 12 June 2009

CaseChat Overview and Summary

The complainant, Mr Ellson, a visually impaired man, alleged that he had been discriminated against by the third respondent, Mr Katyal, who was the driver of a taxi that Mr Ellson had attempted to hail at the Adelaide Airport. Mr Ellson was accompanied by his guide dog. Mr Katyal, who was employed by the second respondent, GMB Brothers, refused to take Mr Ellson and his guide dog to their destination. Mr Ellson alleged that Mr Katyal refused to take the guide dog because of its nature and not because of any other factor. The first respondent, Yellow Cabs, is an accredited taxi operator and centralised booking service. Mr Katyal’s taxi bore the Yellow Cabs logo and signage and carried the Yellow Cabs despatch system. Mr Ellson brought an action for discrimination against the three respondents, alleging a contravention of the Equal Opportunity Act 1984 (SA). The Tribunal was required to determine whether Mr Katyal discriminated against Mr Ellson on the basis of impairment, contrary to the Act. The Tribunal also needed to decide whether either of the two other respondents was vicariously liable for the conduct of Mr Katyal. The Tribunal found that Mr Katyal did not refuse to take Mr Ellson and his guide dog because they were accompanied by a guide dog. Mr Katyal’s refusal was based on a misunderstanding of the nature of the request. The Tribunal found that there was no discrimination on the basis of impairment, either direct or indirect. The Tribunal also found that neither GMB Brothers nor Yellow Cabs was vicariously liable for the conduct of Mr Katyal. The claim against each of the respondents was dismissed.

Orders