Keith Roads v Central Trains Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE SEDLEY,LORD JUSTICE JACOB |
| Judgment Date | 05 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1541 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2004/1094 |
| Date | 05 November 2004 |
[2004] EWCA Civ 1541
Lord Justice Buxton
Lord Justice Sedley
Lord Justice Jacob
B2/2004/1094
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(HIS HONOUR JUDGE O'BRIEN)
Royal Courts of Justice
Strand
London, WC2
MR RICHARD LISSACK QC and MR ANDREW SHORT (instructed by Disability Rights Commission, 2nd Floor, Arndale House, The Arndale Centre, Manchester M4 3AQ) appeared on behalf of the Appellant
MR PHILIP COPPEL (instructed by Messrs Edwards Geldard, Derby DE24 8QR) appeared on behalf of the Respondent
I will ask Lord Justice Sedley to give the first judgment.
LORD JUSTICE SEDLEYThe problem
Mr Roads, a resident of Norwich who is disabled and dependent on an electric wheelchair for mobility, has difficulty in gaining access at Thetford railway station to platform 1, the eastbound Norwich line. Whether he has arrived from Norwich and wishes to cross the track for the return journey, or whether he has gone into Thetford and now wishes to return to Norwich, the only access is from the forecourt on the south side of the station, where the ticket office is located. From there, self-evidently he cannot use the footbridge, and the alternative half-mile route east along Station Lane, passing under the track and returning west to platform 1, is negotiable only with excessive difficulty and risk in his wheelchair.
Mr Roads contends that Central Trains, the lessees of the station, are required by law to provide a suitably adapted taxi to transfer him by the Station Lane route in his wheelchair. Central Trains contend that by going west to Ely, Mr Roads can cross in safety to the Norwich line for his return journey, and that by making this provision they have discharged their duty to him.
Negotiation having failed to resolve the issue, Mr Roads brought proceedings under the Disability Discrimination Act 1995 ("the DDA") against Central Trains Ltd as the material service provider. On 6 May 2004 Judge O'Brien at Norwich County Court rejected the claim. Carnwath LJ gave permission to appeal.
Judge O'Brien concluded that it was not reasonable in the circumstances of the case for Central Trains to make such provision. It is against this finding that Mr Roads appeals, challenging both the way in which the judge reached it and the sustainability of the finding itself. Central Trains cross-appeal, contending that the judge overlooked an antecedent question, which was whether it was unreasonably difficult for disabled persons generally, not just Mr Roads, to use the alternative route unaided.
The law
Although it will be necessary to refer to other provisions, the key provisions are these. Section 21:
"(2) Where a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to -
(a) remove the feature;
(b) alter it so that it no longer has that effect;
(c) provide a reasonable means of avoiding the feature; or
(d) provide a reasonable alternative method of making the service in question available to disabled persons.
…
(4) Where an auxiliary aid or service (for example, the provision of information on audio tape or of a sign language interpreter) would —
(a) enable disabled persons to make use of a service which a provider of services provides, or is prepared to provide, to members of the public, or
(b) facilitate the use by disabled persons of such a service
It is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to provide that auxiliary aid or service."
The facts
The majority of the judge's findings are not in dispute. This appeal therefore proceeds on the footing:
• that access between the platforms at Thetford is part of a service provided by Central Trains to members of the public within Part III of the DDA;
• that the layout of the platforms, the footbridge and the access road are physical features of the station;
• that Mr Roads is a disabled person within the meaning of the DDA and is dependent on a wheelchair for mobility;
• that it was effectively impossible for Mr Roads to use the footbridge;
• that it was unreasonably difficult, though not impossible, for him to use the Station Lane route in his wheelchair, although others had managed it;
• that the provision of a wheelchair-accessible vehicle to take him by the Station Lane route was either an alternative method of making the train service available or an auxiliary service; and
• that if the failure to make such provision amounted to unlawful discrimination, the damages would be £1,097.00.
There is one further element of fact which may well make this case unique. In the course of the pre-trial correspondence, Mr Roads' solicitors wrote to Central Trains' solicitors:
"For the avoidance of any doubt, we confirm that the only positive case that will be asserted by the claimant at trial is that the respondent should provide or secure the provision of a vehicle enabling the claimant access from the main station and platform 2 to platform 1 (and vice versa).
…
In the circumstances, will you now confirm that the respondent concedes that the cost of providing (or securing the provision) of such a vehicle was not and is not a factor which they rely upon in arguing that it was not reasonable for the adjustment to be made. If they do this, we will not require expert evidence. If they do not, the issue has already been determined."
The logic of the proposal (even after Mr Coppel's explanation of it) is not as readily apparent to me as it seems to have been to those instructing him, who replied:
"In view of the response contained within the first paragraph of your letter of today, we are now willing to concede that the issue of funding of a suitably adapted taxi is not an issue on which our client will rely at trial."
In the result, the claim and this appeal have fallen to be conducted on the artificial assumption that the Norwich taxi would come cost-free, eliminating one of the factors which, as §4.22 of the Code of Practice issued pursuant to section 53 of the Act reminds us, would ordinarily have a bearing on what is reasonable and what is not.
The questions of principle
It is desirable first to say something about the cross-appeal. Manifestly no single feature of premises will obstruct access for all disabled persons or —in most cases —for disabled persons generally. In the present case, for instance, the footbridge is not likely to present an insuperable problem for blind people. The phrase 'disabled persons' in section 21(2) must therefore be directing attention to features which impede persons with one or more kinds of disability: here, those whose disability makes them dependent on a wheelchair. The reason why it is expressed in this way and not by reference to the individual claimant is that section 21 sets out a duty resting on service providers. They cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability —impaired vision, impaired mobility and so on. Thus the practical way of applying section 21 in discrimination proceedings will usually be to focus the question and the answer on people with the same kind of disability as the claimant.
The personal right created by section 19 of the DDA operates by fastening a cause of action on to the section 21 duty if the effect of a breach of the duty is "to make it impossible or unreasonably difficult for the disabled person to make use" of the service in question. Thus there is a double test, albeit both limbs use the same phraseology: first (in paraphrase), does the particular feature impede people with one or more kinds of disability; secondly, if it does, has it impeded the claimant?
There is a further question of the meaning and effect of section 21(2). What paragraph (d) requires the service provider to do is "provide a reasonable alternative method" of —in this case —access to the eastbound line. Central Trains' fundamental position was that the station at Ely afforded this, and that this was enough to satisfy the Act. But, as Mr Coppel fairly and rightly accepted, what is reasonable in this special field of law is not always straightforward. Where there is only one practicable solution, it may have to be treated as reasonable even if it is demeaning or onerous for disabled people to use it. If on the other hand there is a range of solutions, the fact that one of them, if it stood alone, would satisfy section 21(2)(d) may not be enough to afford a defence. This is because the policy of the Act, as I would accept, is what it was held to be by Mynors Ch (albeit by way of restricting the duty) in In re Holy Cross, Pershore [2002] Fam 1, §105: "to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large". While, therefore, the Act does not require the court to make nice choices between comparably reasonable solutions, it makes comparison inescapable where a proffered solution is said not to be reasonable precisely because a better one, in terms of practicality or...
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