Court dismisses Air NZ appeal over Covid-19 compensation to crew member

A former Air New Zealand flight attendant who fell ill with Covid-19 while helping people get home between New Zealand and China during lockdown has achieved a major milestone in his fight for compensation.

Former staff member Daniel Lavender has been fighting since 2021 to get compensation after contracting Covid, which ACC described as a work-related gradual process injury.

Air NZ twice turned down his applications for cover, as an accredited provider of personal injury cover for its employees, believing that Lavender was more likely to have picked up the particular variant of Covid while in quarantine in a hotel - which it said was not a place of work, rather than on a flight or at the airport.

On review, ACC found it was more likely that Lavender did pick up the infection while at work, in circumstances where the (ACC) Act provided cover, and rejected the airline company's decision to deny compensation cover.

Air NZ then appealed the decision, which has now been dismissed in the District Court.

Lavender, who worked for the airline for 20 years before he lost his job around the time he got Covid in late 2020, told NZME that Air NZ had "abused its privilege of being a self-accredited ACC provider".

The court's decision to dismiss the appeal, in which ACC was the second respondent, paved the way for Lavender to get the compensation he had sought all along.

Lawyer Philip Schmidt, who acted for Lavender whose legal costs were covered by his union, was critical of Air NZ's stance in fighting the case, in that it adopted a "highly technical argument" in apparently wanting to avoid its responsibilities.

Schmidt imagined that was at odds with what the government at the time would have wanted its flagship carrier to do.

He told NZME the decision provided certainty for any future scenario where people who put themselves at risk of disease and illness by assisting New Zealanders to get back home were protected.

Air NZ has been approached for comment. It has previously said it made the right decision declining Lavender's bid for cover and worked to protect its staff from Covid-19 and support those who contracted it.

Lavender contracted a strain of Covid that left him with lingering health problems. It was later confirmed through genetic testing he had contracted a strain of the virus that was not present in New Zealand at the time.

It happened after he volunteered to help crew a flight from Auckland to Shanghai on November 14, 2020, and then back about four days later.

At the time, both China and New Zealand were in lockdown, and the flights were to get citizens back home to their respective countries.

Lavender tested negative for Covid once back in New Zealand. Two days later, after he had flown back to Shanghai, his test came back positive, likely having been exposed to the virus on the preceding trip to China between 14-18 November, 2020.

All crew took extra precautions to prevent contracting and spreading the virus.

He began to experience symptoms including severe fatigue, impaired eyesight, coughing, fever, a sore throat and nose, and a loss of smell and taste. He also experienced a "severe brain fog", affecting his memory, vocabulary and his ability to process information.

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Occupational physician, Dr Chris Walls, noted that Lavender had most likely contracted Covid during the initial processing on arrival at Shanghai airport, where it was believed that an extensive outbreak among staff had occurred the day before.

He was therefore considered to be at "significantly greater risk" of contracting the particular strain of the virus, which wasn't present in New Zealand at the time, than people not working in the environment.

Another specialist, Dr John Monigatti, said if the strain of Covid Lavender contracted was not known in New Zealand it was unlikely he got it on the flight over, which left three possibilities: While he queued to be processed at the airport, at the hotel, and at the travel back to the airport and the flight home.

Judge Peter Spiller found that "within the peculiar facts of this case", Lavender was at a place for his employment from the time he left New Zealand on the repatriation flight on 14 November, 2020 until his return on 18 November, 2020.

He said Lavender's work required him to travel abroad during the Covid-19 pandemic, and he was therefore subject to increased exposure to the virus and, in particular, to the non-New Zealand variant he contracted.

Judge Spiller said Lavender's risk of suffering the personal injury he did was significantly greater because of his type of employment.

Lavender said another hearing would likely be needed to determine the level of compensation.

* This story originally appeared in the New Zealand Herald.