Moxon v Westbus Pty Limited

[1999] NSWADT 88

Set aside by Appeal: Set aside by appeal on 25/7/2000 Remitted back to Tribunal

CITATION:	Moxon -v- Westbus Pty Limited [1999] NSWADT 88
DIVISION:	Equal Opportunity
APPLICANT:	John Moxon
RESPONDENT:	Westbus Pty Limited
FILE NUMBER:	981001
HEARING DATES:	09/14/1999
SUBMISSIONS CLOSED:	09/14/1999
DATE OF DECISION:	21 September 1999
BEFORE:	R Bartley - Judicial Member O McDonald - Member J Strickland - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Disability Discrimination - Goods and Services -
MATTER FOR DECISION:	Primary matter
REPRESENTATION:	Applicant: D Hillard, solicitor, Clayton Utz Respondent: C Ronalds of counsel instructed by Michael Harmer & Associates
ORDERS:	1. Complaint dismissed. 2. No order as to costs.

Background

1 The Complainant in this inquiry is a person who as the result of a spinal injury needs to use a wheel chair to achieve personal mobility. He lives in Winston Hills, an area in which the Respondent is the only supplier of public transport through its bus fleet.

2 His purchase of a home in this area was dictated by the desire to find a structure that best fitted his mobility needs within and around the dwelling and he did not give consideration to the availability of public transport.

3 The buses which he claimed he wished to use were those running on three specific Routes, the 600, 606 and 607 Routes. The bus stops that were convenient for him were located at sixteen, six and four minutes travel (in his motorised wheel chair) from his home to the each of the 600, 606 and 607 bus routes. He claimed and it was not contested that he could reach each of these locations by travelling safely in his wheel chair along footpaths and only travelling on road surfaces in order to cross the road.

4 He said he had used buses in 1998 and 1999 to visit the Easter Show at the Olympic site Homebush. He was able to do this as the buses being used were fitted with a special ramp. They were not full size buses and not all buses on the Olympic route were so equipped. The buses were owned and operated by West Bus but were under contract to the Olympic Roads and Traffic Authority (ORTA). The timetable was published in a newspaper by ORTA. He found being able to use the buses “quite exciting”.

5 The Complainant is the President of the Physical Disability Council of New South Wales and admitted that he was “a bit of an activist in raising access for people with a disability” .

6 Mr Moxon’s complaint to the President of the NSW Anti Discrimination Board (dated 5 April 1997) details that on 29 March 1997 he attempted to board (while seated in his wheel chair) a timetabled bus (on the 600 Route) operated by the Respondent and was informed by the driver that the bus had no ramp, hoist or other device which would enable him to board the bus. He claimed that the bus driver also stated that no bus operated by the Respondent had any such facilities. The driver when asked “Does that mean that I am unable to use any of the (Respondent’s ) buses”, replied “Yes”.

7 His complaint to the President continued:

“By not providing access (the Respondent) is clearly discriminating against me on the basis of my disability in contravention of the Anti Discrimination Act 1977.”

8 The President of the Anti Discrimination Board referred the complaint to the Tribunal on 19 October 1998.

9 The Complainant’s complaint is one of indirect discrimination in the terms of the Anti Discrimination Act.

10 The Anti Discrimination Act by s 49 B (1) provides-

“a person (‘the perpetrator”) discriminates against another person (“the aggrieved person”) on the grounds of disability if, on the grounds of the aggrieved persons disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) …….

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.”

11 The indirect discrimination in this case is stated to be

“Access to the buses operated by the Respondent on the Routes 600, 606 and 607 is by way of step entry to the vehicle and that this is a requirement or condition with which the Complainant cannot comply because of his disability.”

12 The Respondent conceded that the Complainant for the purposes of section 4, definition of "disability” and section 49A (a), Mr Moxon has a disability.

13 The Complainant seeks orders from the Tribunal to the effect :

(a) That the Respondent ensures that its public transport services on Route 600, Route 606 and Route 607 are made accessible to the Complainant within six months of the Tribunals judgment.

(b) That the Respondent pays the Complainant $40,000 damages for the disability discrimination which he suffers; and

(c) Such other orders as the Tribunal sees fit.

14 The Respondent in this matter is the largest non government operator of suburban bus services in NSW. It operates over 80 commercial bus routes and provides school bus services including the transport of up to 16000 children per day. It owns approximately 420 buses of sizes and configurations that are commercially suitable for the work that is required of them.

15 Of their 80 bus routes, three of them, Routes 600, 606 and 607 are the subject of this complaint in that the buses that are used on these Routes do not allow wheel chairs to enter the buses or be positioned within the vehicles.

16 The Respondent owns 12 buses that do allow wheel chair access. These buses were purchased new in June 1992 at a cost of $310 000 per bus. With normal servicing two of these vehicles will be off the road at any one time giving 10 vehicles for scheduling.

17 The construction of these accessible buses results in a single level flat floor from the entry point near the driver to a point in front of the rear axle where the floor rises to accommodate the engine and power transmission components.

18 The bus suspension is designed to lower about 100 mm at the front and to then tilt giving a further 100 mm lowering of the left hand front corner bringing the floor practically level with the kerb at the bus stop. A hinged flap is manually operated to bridge the small distance between the bus and the kerb.

19 In the centre of these buses is a manoeuvring area, which allows wheel chairs to turn, and a location where wheel chairs can be safely secured against movement during the journey.

20 The need for level access between the load point at the front of the bus and the point where the wheel chair is secured for the journey requires the floor to be lower relative to the centre of the road wheels ie. the wheel arches intrude further into the vehicle than would occur if the floor rose via steps. The wheel arches are too high to be used as seating locations.

21 The evidence was that the Mercedes chassis purchased by the Respondent would carry 57 persons in a floor design that included steps. In a low floor configuration the design allowed 47 seated passengers. When provision was made for 2 wheel chairs the number of seated passengers (including the two passengers in wheel chairs) fell to 39.

22 A further consequence of the design details that allowed wheel chair access is that these vehicles are longer overall and longer in each of: - the front overhang, the rear overhang and the distance between the two axles (the wheel base). This makes the vehicles of this type susceptible to contact with the road at both the front and the rear where the road changes slope sharply (crossing a drain at an intersection) or where “road calming features” such as “chicanes” cause the vehicle to change direction sharply and cause the underside of the middle of the bus to pass over such road features and cause contact.

23 The consequence of this interaction of the low floor buses with the road surface is that six of these buses remain brand new and unused while the other six are successfully employed on roads suitable for their limitations.

24 Mr Paul Brennan, the Chief Operating Officer of the Respondent stated that these twelve buses were purchased in order to comply with the Disability Discrimination Act (Cth) 1992 and that the vehicles were purchased with the intention of introducing a new service with buses running both ways in a loop between Castle Hill- Baulkham Hills - Parramatta- Liverpool - Blacktown and Castle Hill.

25 While application for this service has been made, no approval has been obtained for a range of reasons in which local Councils, the NSW Department of Transport (DOT) and other commercial bus operators are involved.

26 The Tribunal notes that this approval if obtained would provide a partly accessible service on the 600 Route - partly accessible to the extent that ten (with two spare) accessible vehicles would be operating on the Route.

27 Mr Brennan said that two of the routes (606 and 607) which are concerned in this complaint have road features that do not allow the use of the low floor bus. The third route (number 600) does allow the use of the low floor bus.

28 45 buses are needed to provide the services on the three Routes which are the subject of this complaint (Routes 600, 606 and 607).

29 Route 600 when combined into the Castle Hill – Liverpool - Castle Hill (new route 800) would be served by the new low floor buses, all of which would be scheduled for the new service. Mr Hind the Respondent’s Business Development manager in his affidavit said “Route 600 is accessible to low floor buses, however no low floor buses travel this route as current scheduling practices of the Respondent entail a number of different routes will be utilised during a particular driving shift. Accordingly, low floor buses cannot be scheduled for route 600 under current scheduling practices……The new Route 800 as proposed will be self contained and able to carry low floor buses…….Route 600 will be combined with Route 800”.

30 The Complainants case (page 26.8 13/9/99) was that “…there are a number of different types of options available to the Respondent to provide accessible buses, one of which is to provide low floor, ultra low floor buses in the manner the Respondent has purchased. Another is to provide accessible transport through the installation of lifts or hoists. Another would be to purchase other types of buses which are accessible”

31 Evidence on this was given both by Mr Brennan and by Mr Barrie MacDonald, the Executive Director of the Australian Bus and Coach Association (ABCA)on the design of buses that can accept wheel chairs and which do not have features that cause contact with the road surface.

32 This evidence dealt with the possibility and desirability of buying new high floor buses fitted with lifts/hoists and of attempting to achieve the same result via retrofitting the same equipment on existing high floor vehicles.

33 The matters covered included

· Location of the entry point and its effect on bus operation.

· The effect on bus seating capacity and the flow on effect of needing more buses to maintain fleet capacity at peak times.

· The effect on bus loading/unloading times and the flow on effect of this on the ability of the operator to meet timetables.

· The flow on effect of extended timetables reducing peak hour capacity and /or requiring capital investment in more buses and operating expense in drivers.

· The consequences of the effects of these modifications on other uses for the vehicle outside peak hours.

· The limitations of retrofit and the time and cost to carry out modifications.

· The resale value of an old bus and what markets exist for accessible/ non-accessible second hand buses.

· The investment by the Respondent in training drivers in the use of new equipment.

34 Conventional high floor buses can be fitted with hoists or lifts which are lowered to kerb height to allow the person in a wheel chair to move onto the hoist platform. This platform is then raised and moved towards the bus until the person in the wheel chair can move forward on a surface that is practically level into the bus and then manoeuvre and secure the wheel chair into a position suitable for bus travel. The hoist is then stowed.

35 If the entry point is forward of the front axle this introduces a requirement that the wheel chair must be able to pass between the wheel arches to the travel location. This provides limitations on the seating that may exist between the front of the bus and the travel location for the wheel chair.

36 If the entry point is constructed between the front and rear axles the bus driver must leave his seat and supervise the loading operation. Leaving his seat involves shutting down the bus motor (a technical process taking some two minutes on turbo charged engines) and securing his change box. This loading procedure is duplicated at the point of disembarkation with the same time delay. The presence of a second door to the bus that is not directly under the drivers observation creates both technical and regulatory problems in respect of transportation of school children which is a significant part of the Respondent’s business in off peak hours.

37 The effect of extended loading/unloading times on other passengers was explained. The float time to accommodate the possibility of a wheel chair passenger(s) delaying the bus should be built into the schedule so that the bus did not fail to make train/ferry connections. This float time would be required to be in every scheduled trip of the bus. The effect of the float time would be to increase the number of buses required to service the routes in that each journey would take longer. Loading time was variously estimated but what was clear was that buses with hoist loading behind the front axle had the capacity to destroy existing bus schedules if persons in wheel chairs actually used the service with any frequency.

38 Evidence was given and not contested that retrofitting of hoists in front of the forward axle is not possible. The chassis rails continue to the front of the bus and the space beneath the front entry point is taken up with front axle components. There is no room to fit the hoist “cassette".

39 The cost of the fitting of a hoist to a standard bus during manufacture was estimated at about $22000. The cost of retrofitting was higher due to the need to cut a new door in the side of the bus and reinforce the opening to compensate for the loss of strength.

40 Retrofitting of a hoist was estimated to take two weeks for installation in which time the vehicle is clearly not available for fleet operations. The retrofitting of hoists to all vehicles used on the 600, 606, 607 routes would require 70 to 90 weeks during which time an additional vehicle would be needed.

41 The operating life of a bus is controlled both by commercial cost considerations and by regulations. The average age of a bus fleet cannot exceed 12 years and an operator can keep an individual bus well in excess of 12 years if the fleet contains sufficient younger vehicles to maintain the 12 year average life. Tasmania, South Australia and New Zealand were nominated as markets that are unaffected by this 12 year average and it is to these markets that old buses are sold - for the transport of school children. The best resale value is obtained for buses with high numbers of seats and the evidence was that second hand accessible buses (with seats lost due to the necessary seating arrangements) would have their resale value depressed. Evidence was given of sales of old buses outside the transport industry such as for use as motor homes. The amounts the operator failed to recover for these reasons appeared to the Tribunal to be relatively insignificant in the overall cost of provision of wheel chair access within a bus service.

Issues

42 As the case progressed there emerged two substantial issues.

(a) As to whether the requirement by the Respondent that the complainant enter its buses by steps is reasonable or not (49B (1))

(b) Whether the Respondent would suffer unjustifiable hardship if it was required to provide accessible buses on Routes 600, 606 and 607.


Reasonableness

43 The Complainant states that he has been discriminated against by the Respondent bus company because as a potential bus user he is unable to access buses on routes 600, 606 and 607 as they are not wheel chair accessible.

44 The buses are not accessible because they require passengers to negotiate a step.

45 This the Complainant states, is indirect disability discrimination because firstly, the complaint cannot comply with that requirement due to his spinal cord injury.

46 Secondly, a substantially higher proportion of persons without spinal cord injury can comply with the requirement to use steps.

47 Thirdly, the requirement in relation to routes 600, 606 and 607 is not a reasonable one because the Respondent is the sole operator of public bus transport in the Winston Hills area.

48 The Respondent submits that the failure on the part of Westbus to run accessible buses for the Complainant to use is not because of the requirement or condition as identified but because either the existing road impediments prevent the use of such buses or the Department of Transport has failed to make the necessary approvals for the new cross country regional route.

49 Hence the Respondent claims that pursuant to section 49 B(1) (b), it is reasonable having regard to the circumstances of the case.

50 On the evidence, the Tribunal finds that the lack of accessibility of the buses is affected by factors beyond the control of the Respondent however notwithstanding these factors the Tribunal is of the view that having regard to the circumstances of the case the requirement that the Complainant being a handicapped person using a wheel chair enter the bus by steps is not reasonable.

Unjustifiable Hardship

51 The next matter that falls for determination is a consideration of the defence provided to the Respondent pursuant to 49M (2) and section 49C. (It is conceded by the Respondent that it provides a service pursuant to section 49M (1) (b)).

Section 49 M provides

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

(a) …..

(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 the goods or services would Impose unjustifiable hardship on the person who provides the goods or services

Section 49 C 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 account including:

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

(b) the effect of the disability of the person concerned; and

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

COMPLAINANT'S SUBMISSIONS

52 The Complainant submits that the onus lies on the Respondent to establish unjustifiable hardship. He further submitted that under 49 C of the Act “unjustifiable hardship” is explained that in determining what constitutes unjustifiable hardship, for the purposes of the act, all relevant circumstances of the particular case are to be taken into account. Including, there are three matters that are identified, they are not exclusive, three matters; the nature, the benefit, or the detriment that is likely accrue or suffered by any persons concerned; the effect of the disability of a person concerned; and thirdly, the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. The Act sets up a balancing exercise. It balances the rights and responsibilities of sides and takes into account the circumstances of any other affected persons.

53 The Complainant further submits what needs to be importantly considered from the outset of this matter is that from the Complainant's point of view he faces the situation of total inaccessibility of the Respondent's services, he is not able to use them whatsoever because of his disability.

54 Certainly the Respondent has suggested that it will be put to some financial cost and that there are some problems they face. It's not simply a question for determining unjustifiable hardship whether there is an imposition on the Respondent or whether there is a burden on the Respondent; the question is whether or not that burden is an unjustifiably hard one.

55 Commissioner Graeme Innes in the decision of Francey & Meeuwissen v Hilton Hotels of Australia Pty Ltd (1977) EOC 92-903, under the Disability Discrimination Act, the Commissioner explained in that case that many Respondents imply that the expenditure required to redress discrimination should be given greater weight than other factors. Whilst it is important, the Commissioner held the “question of financial concerns must be considered along with all other provisions of the Act” .

56 The Commissioner said, at EOC p.77,453:

"I do not suggest that intolerable financial imposts should be placed on the Respondents. However, for this defence to be made out the hardship borne must be unjustifiable. Therefore, if other factors mitigate in favour of preventing the discrimination - which is the Parliament's intention in this legislation - then the bearing of a financial burden by the Respondent may cause hardship which is deemed justifiable".

57 That is the entire concept before the Tribunal today. We are not denying that there is going to be some hardship imposed on the Respondent in making their routes 600, 606 and 607 accessible to Mr Moxon but in no way does the evidence suggest that the burden is an unjustifiable one.

58 The balance of the complainant’s submission appear in the transcript pages 134 to 147.

RESPONDENT'S SUBMISSIONS

59 The Respondent relied on the various reports and submissions in the Respondent’s bundle of documents as demonstrating that there is nil or negligible evidence of any increase in patronage when buses are wheelchair accessible.

60 In particular, the report by Professor Henscher and cited by Mr.Graham (Graham 28) sets out the conclusions of the research that our best estimate of an increase in one-way trips is less than 1% (RD:907, vol 3 tab 22).

61 The only definitive study in Australia on the cost impact on making the private bus industry fully wheelchair accessible was commissioned by ABCA in November 1996 and was published in February 1997. It was based on a survey in Newcastle, Central Coast, Sydney metropolitan and Wollongong bus operators. Price Waterhouse concluded that “ the private route bus industry will not be viable after the fifth or sixth year of implementing the Standards’(RD 483,Vol 2 , tab 17)

62 The Regulatory Impact Statement Draft Working Paper (revised) (April 1997) agreed with the Price Waterhouse methodology and differed only in the quantum of costs (RD 560, vol 3, tab 18).

63 There is a significant detriment to be incurred by the Respondent if all buses on routes 600,606 and 607 were to be made accessible to wheel chairs at all times (as apparently sought in the proposed order).

64 The introduction of accessible buses results in a loss of seating capacity through the allocated space and the different design of the low floor bus itself (Brennan 14). This results in a 17% loss of seating capacity . Passengers prefer to travel seated, especially on longer journeys (RLG 2: 8-9).

65 These major factors are not specific just to Westbus but currently under consideration by all private bus operators across Australia(ABCA) (submn) PD 263-267, vol 2 tab 14.

66 The relevant factors include:

(a) capital expenditure on up to 45 new accessible buses, surplus to current requirements

(b) financial cost , lost time, and inappropriateness of retro-fitting hoists to all or some of the existing fleet.

(c) failure to recover any or only minimal capital by way of sale of existing fleet:

(d) significant loan funds which would threaten the long term financial stability of the company.

(e) loss of seating capacity of 17%,

(f) increased operating costs

67 The current infrastructure problems on routes 606 and 607 and the failure of the Department of Transport to approve the alterations to route 600 means that any future developments are beyond the capacity of the Respondent to address or amend.

68 It is submitted that the defence of unjustifiable hardship has been established by the Respondent and the terms of section 49M(2) have been met.

CONCLUSIONS

69 The Tribunal has considered the effect on the Respondent’s business of the Respondent being required to make each of the buses that run on Routes 600, 606 and 607 accessible to persons in wheel chairs.

70 The Respondent’s preferred solution is to use the low floor buses it has already purchased. These buses allow a wheel chair passenger to enter or leave the bus and the only intervention by the driver is to fold over a manual ramp plate. The bus has only a front door and is well suited to the carriage of school children even though without access provision it could carry more passengers. It cannot use these buses on Routes 606 and 607 because of road impediments on these Routes. The only way that it can provide buses on those Routes that allow wheel chair access is to either fit the existing buses that serve the Routes with hoist or lifts at a cost of $22000 each or dispose of the existing buses and purchase new buses already fitted with hoists or lifts. There are 45 buses serving Routes 600, 606 and 607. The Tribunal is not aware of the actual number serving 600 and 606 alone but has taken a figure of fifteen per route ie 30 buses which would require to be purchased new or retrofitted with hoists or lifts. The Tribunal considers that variations in the actual number of buses would not materially affect its decision.

71 The fitment of hoists or lifts reduces the number of seats available on the bus and affects the capacity of the bus to carry peak hour passengers which passengers generates the principal income of the bus service. Loss of peak time capacity creates a need for additional buses and drivers to be employed in peak hour. Secondly, the other significant use of buses outside peak hours is the transport of children and the loss of seats penalises the use of the buses in this application. Thirdly the installation of a second doorway for the hoist creates some safety difficulties in the use of the buses in the transport of school children.

72 The use of the hoist or lift to assist a passenger in a wheel chair to board or leave the bus has a significant time penalty. The Tribunal accepts that 4 minutes per load or unload cycle is conservative. A thirty minute journey which included one loading and one unloading of a wheel chair passenger would result in the bus being 8 minutes late. The bus operator has the choice of increasing all its timetables to accommodate this event or risk the ongoing connections of all other passengers each time a wheel chair passenger used the service. The increase in journey time would require a proportionate increase in equipment and drivers to provide the same service.

73 The purchase of new equipment versus retrofitting existing buses and the loss of resale value due to selling the existing buses before their useful life is reached are variations on the general cost theme of lifts/hoists in the context of the Respondent’s operations.

74 The Respondent has equipment (the low floor buses) that would allow it to provide a wheel chair accessible service on route 600. The way it currently runs its business, the other uses of the buses that serve this route do not fit with the configuration of the low floor bus. The Respondent’s answer to that has been to attempt to reconfigure its services to allow it to continue its business and allow the low floor buses to operate on Route 600. To this date it has been unsuccessful due to events beyond its control which are described elsewhere in this judgement.

75 The Tribunal has carefully considered all the submissions of each party and all the exhibits. In view of the number of pages (approx 1000) it is not possible to summarise the effect of all the documents. The Complainant accepts what the documents say but says different inferences should be drawn from them to what the Respondent draws.

76 It appears to the Tribunal that the Respondent company is conscious of its obligations to the travelling public and the need to provide accessible transport to handicapped persons and others needing this type of access.

77 The matter raised by the Complainant in this application is not one of easy resolution. It cannot be dealt with in isolation from other prevailing factors as the Complainant has submitted. The Complainant has told the Tribunal that there were a number of options open to the Tribunal to provide relief for the Complainant and that it was a matter for the tribunal to select the option rather than for the Complainant to state his preferred option. The Tribunal does not accept this submission.

78 There is the wider aspect of access by disabled persons to public transport generally and this has been under the consideration of the Commonwealth Government, State Governments, Local Government, various stakeholders in the industry and the organisations representing persons with a disability since 1994, without resolution other than the preparation of a Draft Standard.

79 The Draft Standard has been publicised and opened generally for comment but at this stage the Standard remains in Draft form.

80 Taking into account all of the matters set out in the evidence, the exhibits and submissions, the Tribunal is of the view especially having regard to the requirements of 49C the Respondent has proved on the balance of probabilities that “unjustifiable hardship” would occur to it in the provision of the access to its buses sought by the Complainant.

81 The Respondent having discharged its onus in respect of sections 49M (2) and 49C, the complaint is dismissed.

ORDERS

(1) The complaint is dismissed.

(2) By consent no order as to costs.