Court of Appeal, 2004. Full judgment: bailii.org.
Mr Ross was charged for the provision of a wheelchair to get from the check-in point at Stansted airport to the plane.
Ryanair argued amongst other things that its service was a transport service and therefore exempt under DDA s.19(5). It provided a transport service and anything ancillary to that was excluded. As a refinement to that, provision of use of a wheelchair was a means of transport which was likewise excluded.
The County Court rejected these arguments, and held that Ryanair was liable for discrimination under DDA Part 3. The court cited the Part 3 Code of Practice which said at para 2.36 that the transport exclusion –
“does not mean that transport providers are wholly exempt from Part III. They still have a duty to avoid discrimination against disabled people and to make reasonable adjustments for them in respect of matters like timetables, booking facilities, waiting rooms etc. at airports, ferry terminals and bus coach and rail stations.
“A wheelchair user has no protection under Part III of the Act if a ferry on which he wishes to travel is not accessible. However, if he is refused service in the buffet bar of the ferry terminal because of his disability that is likely to be unlawful.”
An escalator and travelator could be described as a means of transport, but the court accepted that they do not come within the ambit of the exclusion in Section 19(5). It considered that the use of a wheelchair is in a similar category and is not within the ambit if the exclusion. The service in this case was one of providing access to an airplane and not pushing in a wheelchair. Section 19(5)(b), would apply to the airplane which is a means of transportation within the section.
The compensation award included £1000 for injury to feelings. The court cited a case which had said: “£750 is the least that may now days be awarded for the very slightest injury to feelings, deserving of damages, caused by discrimination on the ground of disability.”
Court of Appeal
The Court of Appeal subsequently held that the Stansted airport authority was jointly liable with Ryan Air.
The transport exemption manifestly did not apply. The services in this case related to Mr Ross’s access to and use of the ‘airside’ of Stansted Airport between the check-in desk and the departure gate on his outward journey and between the arrival gate and the baggage reclaim area on his return journey. These services did not consist of the use of any means of transport. Paragraph 2.36 of the DRC’s Code of Practice (see above) provided helpful illustrations of the effect of the Act in this regard.
On the issue of whether the airport authoirty was jointly liable, the main question that fell to be determined was whether Ryanair, or the authority, or both of them, provided to Ryanair’s passengers the service of access to and use of the relevant airside parts of Stansted Airport. In the Court of Appeal’s judgment they both did. The authority were the owners of the airport, and they allowed members of the public who held a boarding card access to and use of the relevant airside parts of their airport on their outward and return journeys. Ryanair, for their part, provided this service to their passengers because in giving them a boarding card it provided them with the key which unlocked this access for the purposes of their flight and permitted them this use both on their outward and on their return journeys.
The court did not for the purposes of this appeal have to say anything about the other factual situations discussed in arguments before the court: where responsibility lies, for instance, as between the owners of a village hall and a charity which uses it for a jumble sale, or between the owners of a very large block of offices and the occupiers of an office that is being used by a member of the public and is far removed from the main door of the office block. Every case will fall to be determined on its particular facts.
Because the obligations contained in section 21 of the DDA were owed to disabled persons as a class and not to any particular claimant , it was irrelevant whether a particular claimant might have the financial means to pay for the necessary auxiliary aid.
Both Ryanair and the airport authority were 100% liable to Mr Ross under the DDA, and the airport authority was ordered to contribute 50% of the liability to damages and interest.
The (limited) scope of the transport exemption in the Equality Act seems to be much as it was in the Disability Discrimination Act 1995, as interpreted in this case. See Transport services.
There may though now be the issue of whether the Montreal Convention limits the right to compensation: Transport services>Air Travel: Montreal Convention.
Apportionment of liability
The claimant will presumably have been entitled to recover the whole amount of the compensation awarded (once) from either the airline or the airport, on the basis they are jointly and severally liable (see Apportionment of liability).
However, if say the airline paid the claimant 100% of the compensation, the court’s 50/50 apportionment of liability would mean that the airline can itself recover 50% of the compensation from the airport. This is under the Civil Liability (Contribution) Act 1978, which may apply where more than more than one party is liable for the same damage. The 1978 Act gives a right for one party to claim from the other such contribution as a court thinks just and equitable.
The 1978 Act has been held not to apply to employment discrimination claims: Brennan v Sunderland City Council (link to bailii.org), 2012. What about claims against service providers under Equality Act 2010? The Court of Appeal considered that the 1978 Act applied in Ross v Ryanair. The court said that because a claim founded on unlawful discrimination was treated pursuant to s.25(1) Disability Discrimination Act 1995 (DDA) in the same way as any other claim in tort, it could see no reason why it should not be able to order contribution as between Ryanair and the airport (para 28 of the Court of Appeal judgment).
However, that DDA wording mentioned in para 28 of the judgment does not seem to appear in Equality Act 2010. The Civil Liability (Contribution) Act 1978 may still apply to non-employment discrimination cases going to the County Court, but this is not clear.