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||Neutral Citation Number:  EWCA Civ 1541
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
||5th November 2004
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE SEDLEY
LORD JUSTICE JACOB
(Computer-Aided Transcript of the Palantype Notes of
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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
HTML VERSION OF JUDGMENT
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- LORD JUSTICE BUXTON: I will ask Lord Justice Sedley to give the first judgment.
LORD JUSTICE SEDLEY:
- 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.
- 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 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  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 of the legislative policy, is available. That was this case.
- Against this backdrop, I agree that the judge should have addressed the question of impeded access in relation to wheelchair users as a class before asking and answering it in relation to Mr Roads. The two questions then were:
A. Is it impossible or unreasonably difficult for wheelchair users to use the Station Lane route to get to platform 1?
B. If it is, had Central Trains taken such steps as it was reasonable for them to have to take in order to provide an alternative means of access for wheelchair users?
- Both of these questions arise under section 21(2). If they are answered against Central Trains, the judge's findings entitle Mr Roads to succeed under section 19(1), which makes it:
"... unlawful for a provider of services to discriminate against a disabled person -
(b) in failing to comply with any duty imposed on him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service ..."
- It is not disputed that such a failure would amount to discrimination within the meaning set out in section 20.
- Until 1994 there was a barrow-crossing over the track at one end of the platforms, which might have answered Mr Roads' problem subject to considerations of safety; but in that year Railtrack closed it. The only way from the south side of the station to platform 1 for those who cannot use the footbridge has since then been the Station Lane route. The sections of road making up that route are not all in Central Trains' occupation or under their control, so they cannot do anything about its surface. Instead they offer this solution: to take the train west to Ely where there are full facilities for wheelchair-dependent passengers, and to change to the Norwich line there. This option is provided free of extra cost, but it adds over an hour to the 36 minutes ordinarily required for a rail journey from Thetford to Norwich.
- It is Mr Roads' case, in these circumstances, that when he wishes to travel back to Norwich from platform 1 at Thetford, and provided he has given them adequate notice of his requirement, Central Trains should make available to him a taxi adapted for carrying a wheelchair. The evidence before the judge was that no suitably adapted taxi is licensed in the Thetford area. The nearest one is in Norwich, from where it would have to come and to where it would normally return. It was this choice of solutions - a round trip through Ely or the summoning of a taxi from Norwich - that the judge had to make.
- Mr Roads is a member of the management committee of the Norfolk Coalition of Disabled People. On their behalf he wrote to Central Trains in February 2002 about the lack of disabled access at Thetford, proposing a foot-crossing and an accessible toilet and offering to work with Central Trains on the problem. In April 2002 there was a meeting. Mr Roads put himself forward as a test case, but to make the point a group of disabled people came along. Neither the meeting nor subsequent correspondence produced any proposal from Central Trains which was satisfactory to Mr Roads and his committee, and these proceedings were consequently issued in October 2002.
- To furnish appropriate evidence, Mr Roads gave notice of his intention to travel from Norwich to Thetford and back on a specified date. The letter asked for appropriate arrangements to be made to transport him between the platform at which he would arrive and the platform (platform 1) from which he would then return to Norwich, but there was no response. On the day, 4 December 2002, Central Trains had provided a ramp from the platform to the carriage, but no adapted means of getting from platform 2 to platform 1.
- The judge was assisted, as he acknowledged, by honest and helpful witnesses on both sides (allowing for occasional hyperbole) and by well-presented submissions from counsel. In addition to the history briefly recounted above, he learnt that Central Trains had a written policy, approved by the Rail Regulator, for assisting disabled passengers but that they had inherited many stations with defects which they lacked the capital to remedy. They had therefore concentrated their resources on 'core assistance stations', of which Ely was one. At Thetford, disabled passengers could avoid difficulties by arriving - at least if they came by car - at the platform from which they were to depart. If this meant arriving at a platform - platform 1 - that lacked a ticket office, the fare could be paid without penalty on the train. Railtrack's successor, Network Rail, had refused for safety reasons to accept the reinstallation of a foot crossing at Thetford.
- Central Trains' main witness, Christopher Hogan, pointed out that there was no evident reason why a passenger would want to travel to Thetford and then change trains to go back again; though the judge suggested that a passenger who had fallen asleep and overshot his or her station might need to do so. Mr Hogan estimated that a ramped bridge would cost about £750,000 to instal. A lift, he said, was not permissible on a largely unmanned station. He did not consider the Station Lane route a viable option for a person in a wheelchair. The solution was to go on to Ely and change there. Of Central Trains' 200 stations, about 20 shared Thetford's problem, though not the length of its detour.
- Among the other evidence was that of Clifford Pitchers, the Thetford customer service assistant (once upon a time, I imagine, he would have been the stationmaster). He described how two youngish local residents, Mr and Mrs Griffiths, both dependent on wheelchairs for mobility and living to the south of the station, had for some five years been using Station Lane as a means of access to the Norwich platform. He also described the use of this route by users of manual wheelchairs.
The judge's decision
- The judge rejected a curious submission that the distribution of property rights between Central Trains and Network Rail was such that access between the two platforms was not a service provided by the former; and we have heard no more about it. He held - and this too is now unchallenged - that the layout I have described made it unreasonably difficult "for this claimant as a disabled person" to get by any of the available means to platform 1.
The cross-appeal issue
- What is raised by way of cross-appeal is whether the judge would or should have reached the same answer if he had first asked, as he should have done, whether the road access made it unreasonably difficult - it clearly did not make it impossible - for disabled persons, specifically wheelchair users, to change platforms.
- Mr Richard Lissack QC for Mr Roads submits in his skeleton argument that this question is irrelevant once it is found that the Station Lane route was unreasonably difficult for Mr Roads. I do not agree: Parliament has posed it as a separate and prior question for the reason given earlier in this judgment. I do accept, however, that it is not necessary, in order to trigger the section 21(2) duty, for the feature in question to cause unreasonable difficulty for all or most disabled persons: any significant impact on, say, wheelchair users as a class will in my judgment suffice. The question may often have to be answered without reference to direct evidence from which some kind of statistical analysis can be made: indeed the assembly of such evidence, whether pro or con, may well be invidious or arbitrary and therefore an inappropriate exercise to attempt. Judges are likelier to be assisted by their own appraisal and, where necessary, expert evidence.
- This is how the judge decided whether Station Lane was unreasonably difficult for Mr Roads:
"What are the factors? First of all there is the distance, which is about half a mile, nobody has measured it exactly. But the Claimant very fairly says that the distance itself is not actually the problem, and it is well within the range of his wheelchair. It is a factor nonetheless to be considered, but that is not what he sees as the problem. If it were, I suppose, a beautifully straight flat way the case would be very different. It is really the actual journey that has to be taken that is important and the photographs which both sides have produced are very helpful in illustrating that. The journey would have to start off in the station yard outside Platform 2. I am just going to deal with it in one direction. The other direction would have the same problem in reverse. Where the Station Road turns into Canterbury Way there is a footpath but if there is a means of getting on to it there is no means of getting off of it at the other end. So it is inevitable that the Claimant would have to be travelling on the carriageway, and I think that is going to apply at all times through this journey. So it is not a situation where he can get off the carriageway on to a pedestrian footway. Then when he has proceeded out of the station yard into Canterbury Way and along there he then comes to having to travel under the railway bridge. Looking at the Claimant's photos, we get to number 7 and we see the narrow nature of the road under that bridge where traffic can only go in one direction, and photograph 8 shows it more clearly. So that obviously very considerable care and probably patience would be required of the Claimant, driving his slow moving wheelchair under that bridge and no doubt having to wait until it is free of other drivers and then maybe other drivers coming along in their cars while he is actually going through that narrow throughway. Then when he gets into Station Lane 2 the surface is good but it is plain from the photograph that he has got to stay on the carriageway. There is no footpath, there is simply a grass verge which would presumably be unsuitable for the wheelchair and in any event there are no ramps up to or down from it. Then arriving at the apex at the most northerly part of his journey where he makes his right turn again he cannot go on the pavement. He has got to stay on the carriageway, because although he might be able to get on to the pavement right at the apex, there is no means for him to get off it again. So again he has got to stay on the carriageway. Then he goes down Station Lane 1, which in its early most northern stages is a reasonable sort of surface. There is an odd pothole in it but one would expect him to be able to negotiate that without a problem. But then when we get to photographs 17 to 21 we can see a rather poor broken down road surface with lots of potholes. Photograph 19 in particular shows a very poor state. Although it might just be possible as Mr Hogan said for him to manoeuvre his way around that, it would be extremely difficult. Other than the photos the evidence is, as the Claimant says, perhaps with a touch of melodrama, he says it could be dangerous to his life. He could get stuck, he could fall from the chair and he would be stuck. One cannot necessarily exclude that possibility I would not have thought. Certainly there is a risk that if he got stuck his chair might fall and he might be stranded for some period of time.
The Defendant's witness, taking them globally, their reaction to it is that it is an unsatisfactory surface. It is difficult but it is not impossible. I recall the assertion of the Railway Regulator that it was regarded as impassable. That is perhaps something of an exaggeration, but it was an assertion which was left unchallenged. I have to bear in mind that Mr and Mrs Griffiths actually do it. They follow this route in their electric wheelchairs from time to time, often together. They have done it separately. But they live locally and it may well be that, having done it together and done it a number of times now, they are familiar with it. They live nearby. No doubt if there were a problem they would have a greater local support system. Then I have to bear in mind that there has been an occasion anyway when Mr Pitchers has succeeded in pushing a manual wheelchair customer around that route, but again that is different because if a pothole arises he os there to help.
That is all the evidence about it. I have to make up my mind about it. I am bound to say I find that that particular matter is fairly finely balanced. I have already alluded, and I am sure the Claimant will forgive me if I do so again, to the fact that he is a big and heavy man and would be really helpless if he fell, and he might fall. Also there are plainly problems with traffic, particularly getting underneath that railway bridge, and he has got to be on the carriageway the whole time. On balance I have concluded that I find that it would be unreasonably difficult for the Claimant to cross the railway, cross from one side to the other, in that particular way."
- By far the greater part of this reasoning is general: it is reasoning about electric wheelchair access along Station Lane. At most of the points at which the claimant is mentioned the judge could equally well be speaking of wheelchair users. He considers the evidence about Mr and Mrs Griffiths, whose ability to cope relates principally to the objective section 21 question. He does towards the end take into account Mr Roads' particular build; but it would have been perfectly permissible to take into account instead the risks to a heavily built wheelchair user. Although, therefore, the judge found the issue finely balanced, I consider that his conclusion that Mr Roads would find it unreasonably difficult to use the Station Lane route is founded upon reasoning which is equally - and in one respect more - applicable to disabled persons, in this case wheelchair users, as a class. It follows that the judge would have answered the antecedent section 21(2) question in the same way had he addressed it as he should have done. It would be captious to allow the cross-appeal purely because he analysed the right materials under the wrong head.
The appeal issue
- The judge then turned to the key question of what steps, if any, it was reasonable for Central Trains to have to take in order to provide reasonable alternative access to platform 1. Having posed the choice which I have already described, he said this:
"At first blush the Defendant's solution seems onerous to the Claimant. It adds an hour or a little bit over to his journey at most time of day and if it is going to be late afternoon or evening it could be an hour and a quarter or I think the maximum contingency was an hour and 40 minutes. I have to look at the whole of the circumstances to assess what steps it would be reasonable for the Defendant to have taken. That involves not just reasonable for the Claimant but reasonable for the Defendant or really reasonable looked at overall it seems to me. So what are the circumstances? First of all this is a journey that the Claimant rarely makes. All the journeys in fact that we have heard about in evidence in this case, and I think there are really only two by train, were related to this particular campaign. So that is only twice in 2002 and judging from the tenor of the rest of his evidence it is not a journey he has made very often. Secondly, the Claimant obviously when he has to travel plans his journeys carefully, as indeed is probably a necessity for him wherever he is travelling because he is likely to encounter some problems. So he is a man who has got to do some planning and does. As we see, he books up in advance and he explains his problems to people in advance. Thirdly, the Defendant's solution will turn a 36 minute journey into at least an hour and 37 minutes journey or I suppose if one allows for him getting to the station ten minutes or so early to allow for contingencies, I suppose more realistically one would say it turns a three-quarter of an hour journey into about an hour and three-quarters. So it adds a good hour whichever way one looks at it. Fourthly, there is the factor that other disabled persons, Mr and Mrs Griffiths, have been able to circumvent this problem. Obviously there must be other passengers using a wheelchair. The only evidence we have of that is the person who Mr Pitchers pushed in a manual wheelchair and then the doctor who wrote letters on behalf of the Claimant, and I suppose one imagines from the passenger figures that there may be a few others. But it does not seem in scale to be an enormous problem from the point of view of the number of people involved. Fifthly, the evidence before me shows that the type of taxi required, one equipped with a hoist enabled to take a wheelchair with the Defendant [sic] in it, is not readily available. The evidence of Mr Pitchers was that there in only one cab company as far as he was aware in Thetford who had any sort of facility for taking a wheelchair and that was only for an ordinary manual wheelchair, nothing that would take a heave electric wheelchair. The only evidence I had of such a vehicle being available is that of Canary Cabs in Norwich. So one looks at the reality of what will actually happen if the solution proposed by the Claimant is the reasonable one. The Claimant will arrange his journey by train from Norwich to Thetford and then Thetford to Norwich. He will ask for the Defendants to arrange a cab or the transport to get him across from Platform 2 to Platform 1 to make his return journey. He travels from Norwich to Thetford without a problem. He gets off the train with the assistance of the ramp and goes into Thetford for whatever his business there is or whatever his pleasure may be. He then comes back to Thetford Station in order to go to Norwich. The Defendant will have arranged for this specially adapted cab to drive all the way from Norwich to Thetford. It will pick up the Claimant in his wheelchair. It will drive him half a mile round the lanes to get him on to the other side. He will catch his train back to Norwich and, unless it should happen to have some other business in Thetford, the cab will then drive all the way back to Norwich. It seems a most extraordinary, unusual and unreasonable set of circumstances. No one has actually suggested for one moment that to deal with this problem it would be reasonable for the Defendant company to actually keep available for themselves at all times such an adapted vehicle at Thetford Station or perhaps able to serve a number of stations. So they have got to locate one, and there is no evidence of there being one other than at Norwich. Had there been evidence before me of a suitable taxi being available in the Thetford area my decision may well have been different. But on the evidence before me, doing the best I can to evaluate and ascertain what steps it was reasonable for the Defendant to have taken, I conclude that it would not have been reasonable for the Defendant to obtain a suitable vehicle from Norwich for one short passage at Thetford and that, given the problems in this case, it was reasonable for them to offer as the only alternative free travel back to Norwich via Ely, changing at Ely and covering the same ground again."
- Mr Lissack makes a number of, in my view, valid points about this forensic exercise. First, the fact that other wheelchair users managed to negotiate the Station Lane route was not relevant at this stage of the case: it went only to the objective assessment of difficulty, and even in that context was consistent with yet other users being put off even attempting the Station Lane journey. Secondly, the policy of the DDA is not a minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public. Thus access via Ely, while plainly relevant, is not by itself an answer. Thirdly, the fact that the major instances of difficulty given in evidence were generated in order to make the very point in issue is neither here nor there. If anything it tends to support the claim to the extent that, once the point of principle is established, the need to summon an adapted taxi from Norwich may well be rare. And one notes the judge's provisional view that if the local taxi service in Thetford (and arguably too, therefore, in nearby towns such as Brandon) had been able to provide the required transport, his decision on reasonableness might well have gone the other way.
- Above all, it must be remembered that in pre-trial correspondence Central Trains had agreed that the cost of bringing an adapted taxi from Norwich would not be relied on in relation to the reasonableness of making the provision sought: hence the absence of any explicit reference to it in the material passage of the judgment. It needs also to be noted that Mr Lissack's case is predicated on Mr Roads' giving Central Trains sufficient notice of his coming journey to enable them to book the taxi to help him reach platform 1. Thus this case does not decide what it will be reasonable for Central Trains to do if a wheelchair user arrives at Thetford without any or adequate prior notice and asks for a taxi to be summoned from Norwich. In such a situation, with or without regard to cost, the comparative time element may be such that it is reasonable to expect the passenger to go via Ely.
- In the light of these factors, Mr Lissack goes on to attack the judgment at two specific points. One is the judge's taking into account against the claimant the small scale of the problem. The other is his failure to consider what able-bodied passengers would make of the inconvenience of having to travel to Ely and back in order to change platforms. The fact that this was likely to be only an occasional problem made it more reasonable, not less (in Mr Lissack's submission), for Central Trains to solve it when it occurred by summoning an adapted taxi; and if the alternative of going round via Ely was an inconvenience that no able-bodied passenger would be expected to put up with, why (Mr Lissack asks) should Mr Roads? It is only, he submits, if the judge, despite the concession, took the cost of the Norwich taxi into account that he can have arrived at his conclusion that the measure sought by the claimant was unreasonable.
- For Central Trains, Mr Philip Coppel submits that the scale of the problem lies squarely within the issues posed by section 21(2)(d), which directs attention to "all the circumstances of the case". These necessarily include, he submits, both the relative rather than absolute nature of the difficulty (and therefore the fact that other wheelchair users coped) and the infrequency of Mr Roads' encounters with the problem. The awkwardness of the round trip through Ely had been expressly considered in the judgment: "it adds a good hour whichever way one looks at it".
- These competing submissions are not all mutually exclusive. The relative infrequency of the problem is no doubt relevant, but it may point towards the reasonableness, rather than the unreasonableness, of making special provision to meet it. I agree with Mr Lissack, however, that the relevance of the fact that some wheelchair users cope with the Station Lane route is logically spent with the finding that access is nevertheless unreasonably difficult for disabled people generally and for Mr Roads personally. It cannot be brought in a second time to reduce the standard of provision which it is reasonable to have to make to alleviate the difficulty.
- I am satisfied that the judge must have been critically influenced, as for reasons peculiar to this case he ought not to have been, by the cost of fetching a taxi from Norwich. It was known to be a sum approaching £50, and if it had not been for the agreement to eliminate it from the case it might legitimately have proved decisive. One sees the issue rising very close to the surface when the judge speaks of arranging "for this specially adapted cab to drive all the way from Norwich to Thetford" and calls it "a most extraordinary, unusual and unreasonable set of circumstances", contrasting it with what he might well have decided had an adapted taxi been available in Thetford. But on the artificial assumption on which the case was proceeding that the taxi would be cost-free to Central Trains, and on the further assumption that they would have adequate advance notice of Mr Roads' requirement, it seems to me that the decision could only have gone in Mr Roads' favour. To require him to spend over an hour - perhaps well over an hour - travelling in the wrong direction and then back again when at no cost to Central Trains a taxi could be waiting to transfer him in minutes to the other side of the track at Thetford could not on any fair view, given the policy of the Act, be called a reasonable alternative method of reaching platform 1.
- I would therefore allow the appeal and enter judgment for Mr Roads in the sum fixed by the judge of £1,000 general damages together with £97 special damages. I would add, since the case is supported by the Disability Rights Commission, that although it has made it appropriate to explore some significant aspects of the legislation, what it decides is likely to be of limited impact because of the peculiarity of the real or assumed facts on which both the judge below and this court have had to proceed.
- LORD JUSTICE JACOB: I agree.
- LORD JUSTICE BUXTON: I also agree. Section 21(2)(d) of the Act provides:
"... 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 -
(d) provide a reasonable alternative method of making the service in question available to disabled persons."
- What is reasonable has to be judged here, as always, in all the circumstances of the case. Those circumstances include, in cases such as the present where there are competing solutions, the availability of the one solution when assessing the reasonableness of the other.
- In this case therefore, as my Lord has stressed, when assessing whether the alternative method proposed by Central Trains, the Ely solution, was a reasonable method of making the service available, the judge had to have in mind the potential availability of the taxi solution; and that is indeed how the judge did approach the matter. But he rejected the taxi solution because, as he said at page 56B of his judgment:
"The Defendant will have arranged for this specially adapted cab to drive all the way from Norwich to Thetford. It will pick up the Claimant in his wheelchair. It will drive him half a mile round the lanes to get him on to the other side. He will catch his train back to Norwich and, unless it should happen to have some other business in Thetford, the cab will then drive all the way back to Norwich. It seems a most extraordinary, unusual and unreasonable set of circumstances."
- True it is that the provision as described by the judge is elaborate and has some striking features, not least the return of the cab empty to Norwich. But the judge was in my view wrong, in the sense that he took irrelevant considerations into account in reaching the conclusion that he did.
- There are two ways in which his judgment has to be criticised. First, the question is whether the steps under review are reasonable "for him" (that is to say, Central Trains) to take. Steps might be unreasonable for a person to take if they unreasonably impact on third parties. But in this case the steps did not. The taxi firm is obliged to drive from Norwich to Thetford, but far from that being inconvenient for them, it is all part of their business. The only inconvenience on the assumptions made in this case for Central Trains is the comparatively small amount of administration that will be required in finding out about Mr Roads' programme and calling up a taxi to fit in with that programme. Mr Coppel in argument very fairly accepted that that matter could not be described as an unreasonable inconvenience for his clients.
- Second, like my Lord I am persuaded that the judge did take into account, albeit not mentioning it, the cost to Central Trains of making these arrangements. Had he not done so, there is in my view no other way in which he could have found that the arrangements were unreasonable for Central Trains. That is borne out by what he said at page 56F:
"Had there been evidence before me of a suitable taxi being available in the Thetford area my decision may well have been different."
- That observation could only be relevant to the cost of making the provision: the administration involved in getting a taxi from Thetford was no different from the administration involved in getting a taxi from Norwich. The judge should not have taken that consideration into account because, by agreement between the parties, it had been excluded from the equation in this case.
- This was a case that turned on the reasonableness of arrangements made or proposed and it was very much a matter for the trial judge to assess, with the benefit of the evidence that he had. Normally this court would be most reluctant to interfere with the conclusion to which the judge came. But because he took into account two matters that I have listed that were not open to him to take into account, this court has to reconsider his decision. I would come to the same conclusion on it and for the same reasons as did my Lord.
- I would only say one further thing. Had it been open to the judge to take into account the cost of these arrangements to Central Trains there might well have been much more to be said about this case, and much less likelihood that this court would find itself able to intervene. But that is not the case before us today. It may be the case before another court on a further occasion, when the matter will, I fear, have to be looked at de novo and not in the light of this present case.
ORDER: Appeal allowed; judgment entered in favour of the claimant in the sum of £1,097; the claimant's costs here and below to be paid by the defendants; costs of the appeal summarily assessed at £20,000; the costs below to be assessed if not agreed.
(Order not part of approved judgment)
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