Valerie Joan Smith v Air New Zealand Ltd

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeEllen France J
Judgment Date18 February 2011
Neutral Citation[2011] NZCA 20
Docket NumberCA514/2009
Date18 February 2011
Valerie Joan Smith
Air New Zealand Limited

[2011] NZCA 20


O'Regan P, Chambers and Ellen France JJ



Appeal against a High Court decision which held that the respondent's treatment of the appellant fell within s52 Human Rights Act 1993 (exception in relation to disability) — appellant suffered from respiratory problems and required extra oxygen on flights — respondent charged a fee for supply of additional oxygen — whether appellant was discriminated against on the basis of disability under s44 (provision of goods and services) — if yes, whether the different treatment came within the exception under s52 — whether additional supply of oxygen was too onerous.


F Joychild and D Peirse for Appellant

A H Waalkens QC for Respondent

D G Collins QC and M C Coleman for Attorney-General as Intervener

A S Butler and S A Bell for Human Rights Commissioner as Intervener

  • A The appeal is dismissed.

  • B Costs are reserved.


(Given by Ellen France J)

Table of Contents

Para No.





The facts


The decisions of the Tribunal and the High Court


The approach to s 44


The test in s 52


The application of s 52 to the present case


The approach in the Tribunal and in the High Court – the arrangements for domestic travel


The approach in the Tribunal and in the High Court – the arrangements for international travel


The submissions


Our evaluation





Valerie Smith, the appellant, needs supplementary oxygen for health reasons when she flies. In mid-2002 Ms Smith made a claim under the Human Rights Act 1993 (the Act) about the way in which Air New Zealand Ltd accommodated her requirements for additional oxygen on domestic and international flights.


Ms Smith's claim was heard by the Human Rights Review Tribunal. The Tribunal concluded that Air New Zealand had discriminated against Ms Smith on the basis of disability when it required her to organise and pay for her own oxygen support on domestic flights and in charging her for the oxygen supplied on international flights. Air New Zealand had therefore breached s 44 of the Act which makes it unlawful for the provider of services to “treat any other person less favourably” in relation to the provision of the service than would otherwise be the case “by reason of” her disability. However, the Tribunal found, such prima facie unlawful discrimination was within the exception provided by s 52 of the Act. In terms of s 52 it is not a breach of s 44 if the service is provided on more onerous terms where the disability requires the services to be provided in a special way and

the provider “cannot reasonably be expected” to provide the service “without requiring more onerous terms”. 1


Ms Smith appealed to the High Court against the finding s 52 applied to protect Air New Zealand's actions. 2 Air New Zealand cross-appealed against the

decision that it had breached s 44. The High Court allowed Air New Zealand's appeal and concluded that Air New Zealand had not discriminated against Ms Smith. 3

The High Court subsequently granted Ms Smith leave to appeal to this Court. 4 Leave to appeal was granted to consider whether the High Court was wrong in the following respects:

  • 1 … in holding that the construction of a comparator group involves considering the position of passengers who wish to bring onto flights with [Air New Zealand] objects that give rise to equivalent (to oxygen) safety issues and that those persons would face restrictions imposed by [Air New Zealand] and that on that basis a comparison with those persons would suggest that [Air New Zealand] was not discriminating against [Ms Smith] ….

  • 2 … in analysing the question of discrimination on the grounds of disability by including disabled people within the comparator group ….

  • 3 … to hold that by reference to the comparator group it suggested the different treatment of [Ms Smith] arises not because of disability but because of the safety implications of responding to the needs of the disabled person ….


It is convenient for us to address these questions by considering, first, the approach to s 44, secondly, how any comparison should be made between Ms Smith's position and those of other recipients of Air New Zealand's service and, finally, the test established by s 52. We deal with each issue in turn but first we need to say a little more about the background.

The facts

Ms Smith suffers from a genetic condition known as Ehlers Danlos Syndrome (EDS). In her case, EDS limits the expansion of her chest and the ability of her breathing muscles to move air into and out of her lungs. Since 1997 she has required supplementary oxygen when flying.


Prior to 2002, Air New Zealand supplied and charged for the cost of supplementary oxygen to passengers who required it on a pre-planned basis (that is, other than in unexpected emergencies) on both domestic and international routes. Following a working party in which Ms Smith was involved, in October 2002 Air New Zealand stopped supplying additional oxygen on domestic flights. Instead, the passenger became responsible for supplying this oxygen. For safety reasons, Air New Zealand required the oxygen cylinder and associated equipment to be obtained by the passenger from an approved provider, namely BOC Gas Ltd. As at the date of hearing before the Tribunal in 2002, the additional costs for Ms Smith on her domestic fare were a minimum of $68.50 with additional costs if transport of cylinders to the airport was required (around $20 each way) and additional cylinders needed ($21.81 each).


Air New Zealand continued to supply supplementary oxygen on international flights at a charge to the passenger of US$75 per sector. Thus, on a trip to Melbourne in 1999, Ms Smith paid an additional NZ$298 for the flight to cover the oxygen. Oxygen was supplied by cylinder. We interpolate here that, prior to 1998, for long haul flights a large cylinder of about 3000 litre capacity was used. The cylinder occupied the space of about two seats on a 767 aircraft and three seats on a 747 aircraft. Air New Zealand charged extra for the seats taken up by the cylinders. More compact oxygen concentrators powered by aircraft electricity were introduced in 1998.


Ms Smith's complaint related to her flight with Air New Zealand to Melbourne in December 1999. Her complaint also raised issues about the way in which her oxygen needs were met in terms of the support she received from Air New Zealand staff and an associated criticism about staff training. The latter aspects are not relevant on appeal.


The Director of the Human Rights Commission agreed to provide Ms Smith with representation under s 90 of the Act and a notice of proceedings and accompanying statement of facts were filed on Ms Smith's behalf with the Tribunal in August 2002. Various declarations were sought by way of relief along with damages and some reimbursement of costs.

The decisions of the Tribunal and the High Court

The key to the Tribunal's conclusion that there was a breach of s 44 was that it is an integral part of Air New Zealand's travel service to provide the oxygen its passengers need to maintain life and health when at altitude. The Tribunal considered the position with oxygen was not like that relating to the supply of medicines because everyone needs oxygen and it is supplied to everyone. Accordingly, people are treated equally when they get the oxygen they need even if the cost to Air New Zealand is greater for some than others. Therefore, in requiring some to pay a supplement or to supply some part of their own oxygen, Air New Zealand treats those persons less favourably than those who do not have to pay or part supply. The Tribunal was, however, satisfied that Air New Zealand's conduct came within the exception in s 52. We come back to the detail of that conclusion later.


The High Court concluded that Air New Zealand did not treat Ms Smith less favourably by reason of her disability and so did not discriminate against her unlawfully as prohibited by s 44(1)(b). The Court went on to consider s 52 and on that aspect agreed with the Tribunal's conclusion that Air New Zealand had acted reasonably.

The approach to s 44

Section 44 is found in Part 2 of the Act which deals with unlawful discrimination. Under the overall heading of “Discrimination in provision of goods and services”, s 44(1) provides as follows:

44 Provision of goods and services

  • (1) It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public —

  • (a) to refuse or fail on demand to provide any other person with those goods, facilities, or services; or

  • (b) to treat any other person less favourably in connection with the provision of those goods, facilities, or services than would otherwise be the case, —

by reason of any of the prohibited grounds of discrimination.

Disability, as defined in s 21 of the Act, is a prohibited ground of discrimination.


Section 44(2) expands on the definition of “facilities”. Sections 44(3) and (4) deal with the provision of services by clubs. Various exceptions follow, for example, in relation to public decency or safety 5 and insurance. 6 Section 52 provides a more general exception in relation to disability and reads as follows:

52 Exception in relation to disability

It shall not be a breach of section 44 of the Act for a person who supplies facilities or services —

  • (a) to refuse to provide those facilities or services to any person if —

    • (i) that person's disability requires those facilities or services to be provided...

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