Trevethick v. Ministry of Health (Decision No. 1)

[2007] NZHRRT 7
Download Judgment: English

This case concerned whether there was unlawful discrimination under New Zealand’s Human Rights Act (1993) (“HRA”), where legislation provided financial support for a disability arising from an accident, but not for a disability arising from a degenerative process or the manifestation of a disease.

Ms. Trevethicks (Plaintiff) suffered from multiple sclerosis. She could only drive a car with special modifications. Those modifications cost her about $ 90,000.

New Zealand’s accident compensation legislation provided financial support from the Ministry of Health only for a disability arising from an accident. Because her disability arose from a degenerative disease, the Plaintiff did not qualify for financial support for the cost of her car modifications.

The Plaintiff claimed that the accident compensation legislation treated differently disabilities which are similar, and only differed because of their origin (accident as opposed to diseases or degenerative processes), and that this constituted unlawful discrimination under Part 1A of the HRA. She asked that the court: (i) declare the legislation in violation of Part 1A of the HRA; (ii) restrain the Ministry of Health from continuing such discrimination; and (iii) award damages.

The Court did not make a decision on the merits but instead instructed the Chairperson to carry out further searches on the interpretation of the definition of disability under the HRA based on the following argument put forth by the Ministry of Health.

The Ministry of Health argued that the HRA’s definition of disability does not explicitly reference the cause of a disability. The HRA thus does not prohibit differentiation between people who have the same disability on the basis that the causes of those disabilities are different. Because the resources available to the Plaintiff under the accident compensation legislation and those available to her under Vote Health (compensation for disease-based disability) exist due to the causes of her disability, not due to the existence of her disability itself, no discrimination under the HRA had occurred.

The Court found the Ministry’s second argument unpersuasive. The Ministry of Health argued second that, under the general principles of law, someone whose disability arises from an accident normally has the right to recover damages from the wrongdoer who has caused the accident. Conversely, someone who suffers from disability arising from disease or degenerative process has no compensation right vis-à-vis any one member of the community. Lawsuits against wrongdoers, however, may have unintended consequences (as damages awarded are very relevant). The accident compensation legislation aims to replace those lawsuits and mitigate their unintended consequences. Compensation legislation in favour of people with disability arising from disease or degenerative process would not have such an aim. As a consequence, the defendant argued, people with disability originating from disease cannot properly be compared to people who suffer from disability arising from accident with respect to compensation schemes which can be enacted by the Government.

“It is obvious that the definition of disability as a prohibited ground of discrimination does not include any reference to the cause of disability in so many words. The question, then, is whether the definition should be treated as having been intended to encompass differentiation on basis of the cause of a disability, or whether the definition should be read as having deliberately excluded differentiation on the basis of the cause of a disability. Although both Ms. Rodgers and Mr. Miller would prefer us to leave determination of that question until after a substantive hearing, we agree with Ms. Coleman that this is a question of law, and it is therefore the sort of issue that can and should be determined on a strike out application. After all, if the Crown’s submission is correct, then this case has no foundation in the legislation and it ought not to proceed.” Para. 57.

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