Flight of fancy – Jetstar’s epic gaff

Jeremy marvels at just how badly Jetstar might have got it wrong…

Tuesday’s debacle involving Jetstar’s treatment of Tanya Black and Dan Buckingham (the disabled presenters of the TVNZ show Attitude) raises some topical and contentious issues around society’s attitudes towards people with disabilities (and others who arguably fall outside our arbitrary “norms”).

I agree that Jetstar’s performance was appalling (and could they have chosen two more capable people to take on?!) but were they wrong only from a moral and human perspective, or did they get it all wrong legally as well…?

When you book a plane flight, you enter into a contract with the airline.  However you do it (in person, over the phone, through a travel agent or on the internet) the terms of that contract must be certain and disclosed to you before you enter into the contract.  With some exceptions, the law says that if you don’t bother to ascertain all the terms of the contract before you sign up, you assume the risk that there’s something inconvenient (or downright nasty) in there somewhere.  In today’s fast paced world, we enter into contracts every day without a clue as to what we’ve really agreed to and, most of the time, life simply goes on…

I doubt that Tanya and Dan gave any thought to Jetstar’s conditions of carriage (which will have been incorporated into their ticket, at least by reference) when they booked their flight.  So, they very likely assumed the risk that there may be unappealing terms in their contract (such as the need to be accompanied by a “carer”).  Can they really complain if Jetstar wants to enforce the clear terms of the contract?

The answer is No, they can’t – if, and it’s an important if, those terms were actually in the contract.  I’ve just read Jetstar’s conditions of carriage – they’re 18 pages long and quite boring.  If you can stay awake long enough, you’ll come to a number of provisions which allow Jetstar to refuse to carry a passenger.  Generally, they relate to the health and safety of the passenger and of other passengers, the safety of crew and staff and the prevention of illegal activity.  There’s no suggestion Dan and Tanya were acting illegally, so let’s concentrate on their safety, and that of other passengers and crew.

Here are the conditions of carriage Jetstar would probably say justified their actions:

3.4 Health

(a) We may refuse to carry you if we, acting reasonably, are not completely satisfied that it is safe for you to fly. Before you make a Booking you should tell us if you suffer from any illness, disease or other condition which may make it unsafe for you or other Passengers if you fly. (my emphasis)

Can Jetstar really say that it reasonably formed the view that it was unsafe for either Dan or Tanya to fly?  Clause 3.4 goes on to deal at some length with people who have DVT (deep vein thrombosis) or are in various stages of pregnancy – are they categorising being in a wheelchair as similar?  Dan and Tanya were both experienced travellers (something that should have been fairly easy to verify) and without anything else, I don’t think it is reasonable for Jetstar to be concerned for their or anyone else’s safety (particularly on a one hour flight).

Clause 3.4 also says the passenger “should” tell Jetstar of any relevant condition affecting safety – if I was Jetstar, I think I’d want to be relying on a stronger obligation (e.g. “must”) to cancel the contract.

4.5 Limited special assistance

Generally we will not allow a person to travel without an Accompanying Passenger unless the person can travel independently, meaning that they can travel safely without assistance, supervision or both. …

However, we do provide limited special assistance … for customers who require a wheelchair (see 5.3) …. If you need to use these special services please make arrangements through Jetstar Reservations. (again, my emphasis)

5.3 Carriage of Wheelchairs …

Your fare also covers carriage of your … wheelchair, if you require one to travel. Please notify Jetstar Reservations of your requirements when you make your Booking. Limits may apply.

Both clauses 4.5 and 5.3 allow the passenger to elect whether they require special assistance and if they do, to notify Jetstar of what they need.  Dan and Tanya didn’t need assistance, so they didn’t request it.  These provisions have been drafted so that passengers can’t complain when they turn up and expect assistance, unless they have previously requested it.  Jetstar seems to have wrongly interpreted them as creating an obligation on the passenger to notify Jetstar, even if the passenger decides they don’t require assistance.

And even if you give Jetstar the benefit of the doubt, Dan and Tanya did have an able-bodied companion flying with them.  Is it reasonable to require both of them to bring a “carer”?  On a one hour flight?  C’mon Jetstar…

10.1 Refusal of carriage

Even if you have a Booking, we may refuse to carry you and your Baggage if any of the following circumstances have occurred or we reasonably believe will occur:

• because you require special assistance and you have not previously made arrangements for (see 4.5 )

(Other bullets have been intentionally deleted)

This is the provision I think Jetstar is really hanging its hat on – but Tanya and Dan didn’t require special assistance under clause 4.5, so Jetstar can’t rely on this either.

Finally, Jetstar has been reported that it has a “policy” that, if a passenger needs help boarding, they are required to bring along another person as a carer.  I haven’t been able to find that policy on Jetstar’s website – if it wasn’t clearly communicated to Tanya and Dan, before they bought their ticket, that it was a condition of boarding, Jetstar can’t rely on it.

One commentator has already labelled Jetstar’s performance as a FAIL. I’d be inclined to call it an epic one…

Disclaimer:  We haven’t seen all the terms of Tanya and Dan’s bookings – this blog has been written on the assumption that Jetstar’s terms of carriage were the principal provisions of the contract.  If additional terms of the booking negated, augmented or were substituted for the standard terms of carriage, our view may well be different.