The claimant was required to hire a wheelchair to get from the airport check-in point to the plane, rather than being provided with one free of charge. The airline and airport were both held liable for unlawful discrimination, under the Disability Discrimination Act 1995 (DDA). Each was 100% liable to the claimant, but as between each other the Court of Appeal split the compensation 50/50.
[2004] EWCA Civ 1751, Court of Appeal. Full judgment: www.bailii.org/ew/cases/EWCA/Civ/2004/1751.html.
Facts
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 s.19(5) DDA. 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.
County court
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 did not come within the exclusion in s.19(5). It considered that the use of a wheelchair was in a similar category, and not within the exclusion. The service in this case was one of providing access to an airplane and not pushing in a wheelchair. S.19(5)(b), would apply to the airplane, which is a means of transportation within the section.
The compensation award of £1,336 included £1000 for injury to feelings. The county court cited Purves v Joydisc 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 held that as well as Ryanair being liable, the Stansted airport authority was also liable for unlawful discrimination.
The transport exemption manifestly did not apply. The services in this case related to the claimant’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 Stanstead airport authoirty was jointly liable with Ryanair, 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 was the owner of the airport, and it allowed members of the public who held a boarding card access to and use of the relevant airside parts of its airport on their outward and return journeys. Ryanair, for its part, provided this service to its 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 s.21 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. However, the court could order contribution as between Ryanair and the airport authority. The latter was ordered to contribute 50% of Ryanair’s liability as to damages and interest. (§§28, 36-38)
My comment
Transport services
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 could presumably recover the whole amount of the compensation awarded (once) from either Ryanair or the airport, on the basis they are jointly and severally liable (see Apportionment of liability).
Ryanair had probably already paid the claimant the compensation awarded by the county court. The Court of Appeal ordered that the airport bear 50% of the compensation, so the airport would have to repay this to Ryanair. 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.
An EAT in Brennan v Sunderland City Council (bailii.org), 2012 considered that the 1978 Act does not apply to employment discrimination claims (see Apportionment of liability). The EAT was not happy to reach this conclusion. It said at §26 that there is nothing special about discrimination which makes such an outcome acceptable – indeed the Court of Appeal in Ross v Ryanair had held that the 1978 Act applies in the case of discrimination claims justiciable in the ordinary courts.
