SCA Packaging Ltd v Boyle (Northern Ireland)

I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I am grateful to her for setting out the background to this case, and for the way she has identified the issues that are before us. I agree with her and with my noble and learned friend Lord Rodger of Earlsferry, whose opinion I have also had the advantage of reading, that the Court of Appeal applied the right test and that this appeal should be dismissed.

The definition of “disability” lies at the heart of the Disability Discrimination Act 1995. So a proper understanding of what it means is essential if all those who are disabled, as that term is defined in the Act, are to be brought within its protection. Parliament went to considerable lengths to define this expression. First, there is the general test laid down in section 1(1), which provides:

“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

Then there are provisions in Schedule 1 which examine the issue in much more detail. In each paragraph there is a power to make regulations in the light of how the paragraph to which it relates is working out in practice. And there are the provisions that the Schedule itself sets out. Not only is it important that these detailed provisions should be understood and applied in the right way. It is important that they should be interpreted uniformly throughout the United Kingdom. The modifications of its provisions in its application to Northern Ireland that Schedule 8 sets out do not affect the meaning of the word “disability". So our agreement with Girvan LJ that the word “likely” in para 6(1) of Schedule 1 is used in the sense of “could well happen” will now have to be applied throughout the United Kingdom. That is one respect in which this case is of general public importance. As Baroness Hale explains, the test that has been applied hitherto in England and Wales must now give way to that which has been adopted in Northern Ireland.

The case is also important for people who, like Mrs Boyle, are in need of the protection of para 6(1) of Schedule 1. They include those suffering from conditions such as diabetes or epilepsy whose disability is concealed from public view so long as it is controlled by medication. Their disability is insidious. The measures that are taken to treat or correct it, so long as they are effective, enable them to carry on normal day-to-day activities just like everyone else. But the disability is there nevertheless. It lives with them all the time, as does the awareness that the measures that are taken to treat or correct it may not be wholly effective. Doctors do what they…

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Background to the litigation

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Legal Principle Established