When a wheelchair user wishes to board a bus, but the space is occupied by a non-disabled passenger, is it sufficient for the driver to request that the latter vacate the space, without further action if they refuse?
No, held the Supreme Court in FirstGroup Plc v Paulley.
Mr Paulley wished to board a bus operated by FirstGroup. The wheelchair space was occupied by a sleeping child in a pushchair. The driver asked the child's mother to vacate the space, but she refused. The driver took no further action. Mr Paulley missed his bus, and arrived at his destination an hour later than he had planned. He sued in the county court for disability discrimination, and was awarded £5,500 in damages.
FirstGroup's appeal to the Court of Appeal succeeded, and Mr Paulley appealed to the Supreme Court.
The Supreme Court rejected Mr Paulley's primary contention that the driver should have insisted on the wheelchair space being given up by a non-disabled passenger, and enforced that insistence if necessary; but accepted that drivers should be required to do more than simply make the request: the duty to make reasonable adjustments indicates a policy of "require and pressurise," under which the drivers must go as far as they feel reasonable in the circumstances to insist that the space is vacated.
Because the Recorder found for Mr Paulley on his primary contention, without consideration of the likely result of an attempt to pressurise the recalcitrant passenger into giving up the space, the majority (Lords Neuberger, Sumption, Reed and Toulson) declined to restore the award of damages. Lady Hale and Lords Kerr and Clarke dissented to the extent that they would have restored the damages, since there must at least be a real prospect that compliance with the duty as found would have enabled Mr Paulley to travel.
Thanks to Naomi Cunningham of Outer Temple Chamber for preparing this case summary.