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

R Bartley - Judicial Member BEFORE: O McDonald - Member J Strickland - Member

PRIMARY LEGISLATION: Anti-Discrimination Act 1977

APPLICATION: Disability Discrimination - Goods and Services -

MATTER FOR DECISION: Primary matter

Applicant: D Hillard, solicitor, Clayton Utz REPRESENTATION: 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.