Trevethick v. Ministry of Health

[2008] NZHC 415; (2008) 8 HRNZ 485; [2008] NZAR 454
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The appellant, a woman suffering from multiple sclerosis, brought a claim against New Zealand’s Ministry of Health for discrimination contrary to s. 123(2) of the Human Rights Act, 1993. She claimed that if her disability had been caused by accident rather than illness, she would have received significantly greater disability benefits from the government under accident compensation legislation than she had received from the Ministry. The appellant asked the court to read in “cause of disability” to the definition of “disability” listed under the prohibited grounds for discrimination in s. 21(1)(h) of the Human Rights Act.

The Ministry argued that her claim should be struck out on two grounds. First, they argued that the appellant does not have the same characteristics as an accident victim for the purposes of the compensation legislation (“the comparator issue”). Second, they argued that the definition of “disability” under 21(1)(h) cannot extend to “cause of disability”.

The Human Rights Tribunal struck out her claim. It held that the lack of comparator cannot be determined in the abstract as the Ministry alleged and that evidence would be required to demonstrate that no accident victim treated under accident compensation legislation will ever have the same characteristics as the appellant. In a second decision, it also held that the definition of disability under s. 21(1)(h) did not extend to cause of disability. The appellant appealed to the High Court on the issue of cause of disability.

The Court [GA1] upheld the decision of the Tribunal. It acknowledged that while a difference in treatment may exist on the basis of cause of disability, reading in “cause of disability” to the definition of “disability” in s. 21(1)(h) of the Human Rights Act would be a de facto amendment to the Act and was thus not within the Court’s power. The issue of difference in treatment based on cause of disability was held to be an issue for Parliament, and the Court presumed that Parliament had considered and rejected the idea considering how carefully it had expanded the list of prohibited grounds over time.


Moreover, the Court gave the following reasons for not reading “cause of disability” into the definition of “disability”. First, the word “disabilities” used in s. 21(1)(h) is a description of a person’s status, whereas “cause of disability” is a description of how such status arose. It is a description that is fundamentally different in kind from “disability”, and reading it in, the Court concluded, would be both inconsistent with the Act and would require a change in the administration of the Act. Second, none of the other prohibited grounds for discrimination have “cause of” included in the Act. Third, if the disability of two persons being compared is not the same, then there can be no statutory expectation of the same treatment. Finally, the Court acknowledged that there may be unfairness to the appellant, but that the unfairness came from the differences between the accident compensation scheme and the general health scheme operated by the Ministry.

“[T]he desirability of conforming to international covenants is, in general terms, unquestionable. However, in an extreme case, non-compliance with an international covenant in the terms of domestic legislation may give rise to arguments of irregularity in that law, but does not mandate the Court to re-write it.” Para. 29.

“Allied to that is the point that anti-discrimination rights are negative, to prevent discrimination but cannot, for example, afford rights to require the government to re-write a scheme so as to correct an imbalance.” Para. 57.

“The Ministry agrees with the Commission that discrimination is a comparative concept. The Commission says that means this is inherently a factual issue, and therefore cannot be determined in the absence of evidence. The Commission is concerned that substantial justice will not be achieved, if any pattern develops of cutting off ground-breaking cases at the outset, on an abstracted analysis of the apparent absence of a relevant comparator.” Para. 58.