Trevethick v Ministry of Health [2008] NZCA 397; (2008) 2008) 9 HRNZ 252; [2009] NZAR 18 (26 September 2008)

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Trevethick v Ministry of Health [2008] NZCA 397 (26 September 2008); (2008) 2008) 9 HRNZ 252; [2009] NZAR 18

Last Updated: 5 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA373/2008

[2008] NZCA 397

BETWEEN MELANIE TREVETHICK
Applicant

AND MINISTRY OF HEALTH
Respondent

Hearing: 9 September 2008

Court: Chambers, Arnold and Ellen France JJ

Counsel: J M Miller for Applicant
C J Curran for Respondent

Judgment: 26 September 2008 at 3 pm

JUDGMENT OF THE COURT

1. The application for special leave to appeal is dismissed.
2. No order as to costs.
   

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] This is an application under s 124(3) of the Human Rights Act 1993 for special leave to appeal to this Court against a judgment of Dobson J, now reported as Trevethick v Ministry of Health [2008] NZHC 415; [2008] NZAR 454 dismissing an appeal against a decision of the Human Rights Review Tribunal striking out Ms Trevethick’s complaint. Ms Trevethick, the applicant, sought leave to appeal from the High Court but that was refused by Dobson J on 16 June 2008: HC WN CIV-2007-485-2449.

Basis of proposed appeal

[2] The essential question on which the applicant seeks leave is whether the cause of her disability is included in the definition of “disability” as a prohibited ground of discrimination in s 21(1)(h) of the Human Rights Act.

Background

[3] Ms Trevethick suffers from multiple sclerosis. She moves about in a wheelchair and has, at her own expense, converted a motor vehicle so that she can drive herself. Her complaint is that if her disability had been caused by accident, not illness, she would have received greater financial support. Any assistance she has received comes from the Ministry of Health via Vote: Health rather than under the accident compensation regime.
[4] Ms Trevethick made a complaint under Part 1A of the Human Rights Act alleging that the Ministry’s equipment funding policy was discriminatory on the grounds of disability. She sought a declaration that the policy was in breach of Part 1A of the Human Rights Act, an order restraining any repetition of the breach and damages. Ms Trevethick’s complaint was struck out by the Human Rights Review Tribunal on the application of the Ministry: [2007] NZHRRT 21. As we have said, that decision was upheld by Dobson J.

Discussion

[5] This Court may grant leave under s 124(3) if the question of law involved in the appeal is one which, “by reason of its general or public importance or for any other reason, ought to be submitted” to this Court.
[6] The parties agree that in this case the issue is whether the question is arguable. The parties are otherwise agreed that there is a question of law and it is of some importance.

The submissions

[7] In support of the submission that the question is arguable, Mr Miller for the applicant says that the language of s 21(1)(h) is sufficiently flexible to encompass the cause of disability. Mr Miller argues that other facets of disability such as whether it is temporary or permanent are included. He says that the cause of disability is simply another such facet.
[8] In addition, Mr Miller points out that this is a novel area. In this context, Mr Miller refers to the concept of intra-ground discrimination discussed by Butler and Butler The New Zealand Bill of Rights Act: A Commentary (2005) at [17.16.1] to [17.16.4]. Strike-out, Mr Miller submits, is a bold step to take especially as that would then allow discrimination on the basis of the cause of disability to proceed with impunity.
[9] Mr Curran for the respondent submits the point is inarguable essentially for the reasons given by the Tribunal and Dobson J.
[10] The Human Rights Commission appeared as intervenor in the Tribunal and in the High Court. The Commission abides the decision of the Court on the present application.

Our analysis

[11] Under Part 1A of the Human Rights Act, an act or omission of a person or body referred to in s 3 of the New Zealand Bill of Rights Act 1990 (“the Bill of Rights”) is in breach of Part 1A if the act or omission is inconsistent with s 19 of the Bill of Rights (s 20L(1) of the Human Rights Act). Section 19 of the Bill of Rights protects the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act. The persons or bodies referred to in s 3 are the legislative, executive or judicial branches of government and those, broadly, exercising public functions, powers or duties.
[12] An act or omission is inconsistent with s 19 if it limits the right to freedom from discrimination and is not, under s 5 of the Bill of Rights, a justified limitation on that right. Section 5 provides that the rights and freedoms in the Bill of Rights may be subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
[13] Section 21(1) of the Human Rights Act provides that “the prohibited grounds of discrimination” are those grounds listed in s 21(1)(a) to (m). Section 21(2) provides that each of the grounds specified is a prohibited ground if it “pertains to a person or to a relative or associate of a person” and it either currently exists or has in the past existed, or is “suspected or assumed or believed” to exist or to have existed by the person alleged to have discriminated.
[14] The term “disability” is listed in s 21(1)(h), which reads as follows:

[D]isability, which means–

(i) physical disability or impairment:

(ii) physical illness:
(iii) psychiatric illness:
(iv) intellectual or psychological disability or impairment:
(v) any other loss or abnormality or psychological, physiological, or anatomical structure or function:
(vi) reliance on a guide dog, wheelchair, or other remedial means:
(vii) the presence in the body of organisms capable of causing illness.
[15] Both the Tribunal and Dobson J accepted that the words in s 21(1)(h) should be given a generous and purposive approach. The Tribunal concluded that, even so, “disability” did not include its cause. In that context, the Tribunal considered that to interpret s 21(1)(h) in the way contended for by the applicant would, as the Human Rights Commission accepted, involve reading in words.
[16] In determining that it was not appropriate to read the section in that way, the Tribunal placed weight on the fact that it was plain from the Act that the grounds of discrimination were closed. For example, in the employment context the discrimination had to be “by reason of” any of the prohibited grounds (s 22). Further, the Tribunal said the legislative history showed Parliament had been very deliberate as to what grounds were in and what were out. Finally, the Tribunal observed at [34(e)] that in at least two of the limbs of the disability definition, there was “an indication” that the cause of a later outcome ought to be considered part of a person’s present status (s 21(1)(h)(v) and (vii)). That too, told against the applicant’s argument.
[17] Dobson J, in upholding the decision of the Tribunal, did so largely on the same basis.
[18] We consider that the matter before us can be resolved on a narrow basis. For these purposes, we can assume (without deciding) that on the best case for the applicant there is prima facie discrimination. On that basis, it is in our view plain that the discrimination would be held to be justified in terms of s 5 of the Bill of Rights. As Dobson J says at [48], the “real source” of the complaint is the “inadequacies of the accident compensation scheme”. That scheme reflects a decision that in New Zealand the costs of insuring for accidents would be internalised with consequential effects on the right to sue. As this Court put it in Wilding v Attorney-General [2003] 3 NZLR 787 at [11], the “philosophy” of the scheme is “to substitute an entitlement to claim compensation ... on a no-fault basis for the right to bring a Court proceeding for damages for the injury”. The costs of illness were to continue to be provided by the State’s health system and/or private insurance. That policy choice, albeit it may give rise to anomalies of the sort raised by the applicant, constitutes a justified limit in terms of s 5.
[19] Mr Miller candidly accepts that what the applicant considers are the resulting anomalies are matters she wants to bring to the legislature’s attention. The Act certainly envisages the making of declarations affecting the legislative branch but, for the reason we have given, we do not consider that the applicant could succeed in obtaining a declaration in this case. Strike-out was therefore appropriate.

Result

[20] The application for special leave to appeal is accordingly dismissed. We make no order as to costs.

Solicitors:
John Miller Law, Wellington for Applicant
Crown Law Office, Wellington for Respondent
Human Rights Commission, Auckland