A woman with a disability that requires her to have extra oxygen when she flies has argued her case in the Court of Appeal at Wellington today after a decade-long court battle against Air New Zealand for what she calls discrimination.

Valerie Joan Smith suffers from a congenital condition which, among other symptoms, means she has a limited lung capacity and can not fly without supplementary oxygen because of the lowered air pressure in the cabin.

in 1999, Ms Smith took an Air NZ flight to Melbourne and advised the company of her need for extra oxygen, for which she was charged $298, a cost she was not happy with.

she took the case to the Human Rights Commission in December 1999, arguing that it was only because of her disability that she was out of pocket.

The case was dismissed by the Human Rights Review Tribunal as it found the airline had reasonably accommodated her requirements – but subsequently the director of the Human Rights Proceedings appealed the tribunal’s findings.

Air NZ cross-appealed on the issue of discrimination and the case was taken to the High Court, which found there was no discrimination.

The High Court granted the director leave to appeal the decision to the Court of Appeal.

in the Court of Appeal today, Ms Smith’s lawyer Frances Joychild argued that there needed to be different treatment for people with disabilities in order to level the playing field.

“If all supplementary oxygen is to be paid for then it seems like everyone is the same but that’s not right. Only if you provide oxygen is everyone equal,” Ms Joychild said.

Lawyer Harry Waalkens, QC, appeared for Air NZ and said the issue was one of safety, not discrimination.

“The whole rational behind the policy is safety. Air NZ now has a policy that allows passengers to bring their own oxygen system on board whereas in 1998 the company did not,” mr Waalkens said.

he conceded that the passenger would have to pay for the system and may not have it on hand.

Ms Smith realised that there were safety issues with extra oxygen on board but her issue was who would pay for it. The cost was a burden to the disabled community, Ms Joychild said.

“Other passengers don’t pay for their oxygen and neither should she. The airline has to provide her with oxygen unless it was unreasonable to ask them to do that.”

Ms Joychild likened the situation to special allowances given to people with disabilities in other circumstances, such as guide dogs being allowed where pet dogs were not.

The Human Rights Commission (HRC) intervened in the case and argued that society should share the cost.

“The concept of recovering costs from the person is not the right way of thinking,” Andrew Butler, of the HRC, said.

“This society is for everyone and disability is not a problem that can be fixed. That’s the wrong mindset.”

Judgement has been reserved.