Air travel and disabled

Dr Ruwantissa Abeyratne

In November 2008, the Federal Court of Appeal of Canada handed down its decision against Air Canada that it and other carriers do not have the right to charge disabled or obese people for an extra ticket when they need an additional seat or an attendant to accompany them. The Court refused to hear an appeal from the airline and rejected a Canadian Transportation Agency ruling that the applicant had to satisfy the Agency both that she was disabled by reason of her obesity and that she had encountered an undue obstacle in air travel.

The majority of the three-member panel dismissed the application on the preliminary ground that the applicant did not satisfy the first condition.

This ruling, although seemingly isolated, brings to bear the need to revisit the subject of the rights of a disabled passenger in the context of global principles as well as regional and national laws with a view to harmonizing them, primarily by incorporating global principles in national legislation.

This article discusses global principles as well as regulations applicable in Europe and the United States and inquires as to how domestic jurisdictions should be guided in interpreting global rules within their internal rules and procedures.

Medical evidence

In order to obtain the remedy which she was seeking, the applicant, who was morbidly obese and attributed her obesity to a condition known as the Stein-Leventhal syndrome, had to show that although no medical evidence establishes the cause of her obesity it was not disputed that her morbidly obese condition had been medically established.

She therefore had to satisfy the Agency both that she was disabled by reason of her obesity and that she had encountered an undue obstacle in air travel.

The majority of the three-member panel dismissed the application on the preliminary ground that the applicant did not satisfy the first condition.

The applicant appealed against a finding of the Canadian Transportation Agency which dismissed the applicant’s complaint. The majority concluded that the applicant inappropriately relied on inapplicable criteria to establish her disability.

The Agency equated the limitation encountered by the applicant to an obstacle and held that considering the obstacle in determining the applicant’s disability was inconsistent with the scheme of the CTA. The majority went on to find that the applicant’s obesity did not constitute a disability for the purposes of Part V of the CTA and dismissed her complaint on that basis.

Workplace discrimination

On January 14, 2003, the Federal Court of Appeal granted the applicant leave to appeal. The Court held that a disability cannot be determined by mere definition or in the abstract and that it should be taken in context. The Court cited with approval a dictum of Binnie J for a unanimous Court in a case decided in 2002 involving workplace discrimination on account of an alleged disability.

Justice Binnie was of the view that a disability, unlike, for example, race or colour, may entail pertinent functional limitations. An individual may suffer severe impairments that do not prevent him or her from earning a living. Beethoven was deaf when he composed some of his most enduring works. Franklin Delano Roosevelt, limited to a wheel-chair as a result of polio, was the only President of the United States to be elected four times. Terry Fox, who lost a leg to cancer, inspired Canadians in his effort to complete a coast-to-coast marathon even as he raised millions of dollars for cancer research.

Professor Stephen Hawking, struck by amyotrophic lateral sclerosis and unable to communicate without assistance, has nevertheless worked with well-known brilliance as a theoretical physicist. (Indeed, with perhaps bitter irony, Professor Hawking is reported to have said that his disabilities give him more time to think.)

The fact they have steady work does not, of course, mean that these individuals are necessarily free of discrimination in the workplace. Nor would anyone suggest that, measured against a yardstick other than employment (access to medical care for example), they are not persons with daunting disabilities.

In civil aviation parlance, the disabled airline passenger is referred to as a person with disabilities. The Convention on Civil Aviation (Chicago Convention) recommends that when travelling, persons with disabilities should be provided with special assistance in order to ensure that they receive services customarily available to the general public.

Such assistance includes the offering of information and directions in media that can be understood by travellers with cognitive or sensory disabilities. The operative word in the Annex is disabilities as compared with impairment and handicap.

In 1976 the World Health Organization handed down its definitions of the three words disabilities impairment and handicap. These definitions brought to bear a distinct correlation between the words as flowing from one to the other.

According to the WHO definitions an impairment is any loss or abnormality of psychological, physiological or anatomical structure or function; a disability is any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being; and, a handicap is a disadvantage for a given individual, resulting from an impairment or a disability, that prevents the fulfilment of a role that is considered normal (depending on age, sex and social and cultural factors) for that individual.

Therefore, one could deduce that a passenger with disabilities in an aircraft would have a restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being through a loss or inability and that such persons would be handicapped.

Accordingly passengers in an aircraft in flight including those: with ambulatory challenges; who are blind or mute; and who need support to consume food or drink, would be considered disabled.

The European Union defines a disabled passenger as any person whose mobility when using transport is reduced due to any physical disability (sensory or locomotors, permanent or temporary), intellectual disability or impairment, or any other cause of disability, or age, and whose situation needs appropriate attention and the adaptation to his or her particular needs of the service made available to all passengers.

Action by the United Nations

In 1975, the United Nations General Assembly adopted the Declaration on the Rights of the Disabled Persons (Resolution 3447 XXX) which inter alia recognized the inherent right of disabled persons to respect for their dignity and self-reliance.

Paragraph 8 of the Declaration provides that disabled persons are entitled to have their special needs taken into consideration at all stages of economic and social planning.

Later, in 1976, at its 31st Session, the United Nations General Assembly adopted a Resolution which proclaimed 1981 as the International Year of the Disabled, identifying in paragraph (c) as one of the objectives of the Resolution, the encouragement of study and research projects designed to facilitate the practical participation of disabled persons in daily life, for example by improving their access to public buildings and transportation systems.

In 1979, at its 34th Session, the United Nations General Assembly, by Resolution 34/154, recalling its Resolution of 1976, further resolved that the theme of the International Year of Disabled Persons should be expanded to “full participation and equality” to promote the realization of the right of disabled persons to participate fully in the social life and development of the societies they live in.

To be continued