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Articles | Thu 30th Apr, 2020
I recently appeared for the Claimant, JG, in a strike out application brought by the Defendant, a no-frills airline. It is an important reminder that courts should refuse to strike out proceedings that may, after evidence at trial, result in any number of desirable developments in the law.
Background
In brief terms, JG’s claim concerns the potential scope of the Defendant airline’s duty to make reasonable adjustments for disabled passengers. JG requires special assistance for his mobility issues. On arriving at Ben Gurion airport in Tel Aviv in 2018 he was left unassisted as he went to collect his bag from the luggage carousel and, as he made his way to the exit, he fell fracturing his right shoulder.
In its strike-out application the Defendant contended its obligations under the Equality Act 2010 (“EqA”) were displaced.
Striking out a claim
CPR 3.4(2)(a) provides
‘The court may strike out a statement of case if it appears to the court—(a)that the statement of case discloses no reasonable grounds for bringing or defending the claim;’
A list of cases disclosing no reasonable grounds can be found in Practice Direction 3APD, 1.4 and the White Book commentary at 3.4.1 and 3.4.2. The commentary, referring to Farah v British Airways, The Times, January 26, 2000, CA and Hughes v Colin Richards & Co [2004] EWCA Civ 266 reminds courts and practitioners that it is inappropriate to bring proceedings to a premature end where the law is evolving.
Disability discrimination: a duty to make reasonable adjustments
A failure to comply with the duty to make reasonable adjustments is a type of unlawful conduct prohibited under s.21 EqA. Specifically, it is unlawful for an airline (as a “service provider”) to discriminate against a disabled passenger by failing to comply with its duty to make reasonable adjustments (sections 29(7) and 20 EQA)
The duty to make reasonable adjustments under the EqA is displaced in certain situations. The EqA Schedule 3 paragraph 33 states:
(1) Section 29 does not apply to—
(a)transporting people by air;
(b)a service provided on a vehicle for transporting people by air.
(2) Section 29 does not apply to anything governed by Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air.
The airline argued that the exception in paragraph 33(1)(a) applied on grounds that it only provided air transport to JG and accordingly no EqA duty was owed to make reasonable adjustments.
Turning to interpretation and application there is an important Court of Appeal decision in Ross v Ryanair [2004] EWCA Civ 1751 and, more recently, a County Court decision in Campbell v Thomas Cook [2014] Eq. L.R. 108.
Mr Ross, a sufferer of cerebral palsy, had to pay for a wheelchair to take him from the check-in-desk to the plane, a distance he couldn’t walk unassisted. Ryanair had adopted a policy where they passed on the cost of hiring a wheelchair to passengers who opted to use one. The Court of Appeal, reversing the decision acquitting the airport company of unlawful discrimination, held Ryanair remained partly-liable and in doing so rejected the argument that an airline’s service consisted solely of the use of a means of transport (thus they were not exempt from liability under Part III of the Disability Discrimination Act 1995).
More recently, in Campbell, Thomas Cook breached its obligation to make reasonable adjustments in not providing Mrs Campbell with a wheelchair as she queued at check-in at the Tunisian airport of Monastir; those obligations had not been displaced under paragraph 33(2) to schedule 3.
Comment
The Court rejected the Defendant’s argument that Ross is authority for the proposition that an airline’s potential liability ends before a passenger removes his baggage from the carousel; The Court of Appeal in Ross did not decide “at what physical location in the airport or its environs, the airline’s duty might begin or end”.
Why is the scope of airlines’ duties to their disabled passengers developing law? Although the issues are relatively unlitigated, neither are they clearly decided. Neither case decides the scope of an airline’s obligations owed to passengers after disembarkation in foreign airports nor the extent to which those obligations are displaced under paragraph 33(1)(a) to schedule 3.
Further, both Ross and Campbell show that airlines will struggle to pass the full blame for failing to make reasonable adjustments for disabled passengers before they board the plane; there can be no principled difference with disembarkation.
Together with the courts’ apparent willingness to interpret narrowly the circumstances in which a service provider’s duties are displaced, JG’s position may be bolstered by the DfT Access to Air Travel for Disabled People – Code of Practice which states at 9.11 that ‘Assistance should be provided to disabled people from the aircraft up to the point of onward travel, e.g. car park…’.
Surely a decision based on findings of fact will benefit both disabled passengers and no-frills airlines in knowing the extent of an airline’s responsibility to think ahead. It is a welcome decision that allows JG’s claim to live and fight another day.
Sarah Prager and Patrick Lyons acted for the Claimant in this case.
Patrick Lyons is a probationary tenant at 1 Chancery Lane.
