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Accident Compensation Cases

Executors of the Estate of Shane Michael Fletcher v Accident Compensation Corporation (DC, 05/07/02)

Judgment Text

M J Beattie Judge
In my decision in this appeal delivered on 24 April 2001, in which the appellant was successful, I directed that the Second Respondent pay the appellant's costs which I fixed at $1500.00 together with the costs associated with the obtaining of the report from Dr Ravnskov. 
Dr Ravnskov is an internationally recognised expert in the field of Nephrology and it has to be said that his advice and opinion on the central issue in this appeal was quite pivotal. 
Subsequent to the delivery of the Judgment, Counsel for the Appellant filed a Memorandum with this Court seeking directions in relation to the costs associated with Dr Ravnskov's report, Counsel advising that the New Zealand dollar equivalent of the costs of that report, as rendered by Dr Ravnskov, amounted to some $14,000.00. 
Following receipt of that Memorandum, I issued a Minute on 22 February 2002 requesting Counsel for the Appellant to provide further details as to the circumstances under which Dr Ravnskov was commissioned and what understandings or arrangements there may have been about payment of any fee for his services at the time he provided his report. 
I took this step because at the hearing of the appeal Counsel for the Appellant gave no indication of anything unusual about the costs which were sought to be claimed in the event of the appellant being successful. 
Counsel for the Appellant has now filed a Memorandum giving the particulars requested and the salient points of those particulars are as follows: 
Dr Ravnskov was commissioned by Mrs Fletcher direct. 
That commission was on a contingency basis and that if the claim was unsuccessful no fee would be rendered. 
If the claim was successful Dr Ravnskov's fee was expected to be in the region of 10% of the amount of the monies recovered. 
Dr Ravnskov did not render an invoice at the time he provided his report. His invoice was produced after the decision had been delivered. 
It has to be said that the fee charged by Dr Ravnskov is out of proportion to expert witnesses' fees for the providing of reports in appeals in this jurisdiction. Having said that however it must be recognised that Dr Ravnskov is an internationally recognised expert in the field, and as such, can expect to command fees appropriate to his stature. At the same time this Court can only treat costs associated with any report provided on the same basis that it would consider costs associated with a report from any other expert, namely a particular fee commensurate with the level of expertise and time and attendance which has been involved. 
I should indicate that the Court has received a helpful memorandum from 
Mr Sharp, Counsel for the Second Respondent, and he has quite correctly pointed out that an expert witness has a duty to the Court and that is one of the reasons why the fees of an expert witness when properly calculated are usually claimable in Court. 
The fact that Dr Ravnskov has rendered his account, fixed as it was on a contingency basis, I find puts it into a different category than that of an expert witness who can expect to have his fees directed to be paid in full by the party upon whom the burden of costs has fallen. 
The Court is granted a complete discretion on this question and that was reinforced by the decision of the Court of Appeal in Martelli McKegg Wells & Cormack v Commbank International NV [1996] 10 PRNZ 153
Having regard for the particular expertise of Dr Ravnskov but also being cognizant of the fact that the fee must bear some relationship to the cause or claim itself, I consider that a fixed sum approaching 50% of the claimed fee is reasonable in the circumstances. This is in line with the reasoning given in the Martelli case and also that of the High Court in Holden v Architectural Finishes Limited [1997] 3 NZLR 143
Accordingly I direct that the Second Respondent pay the appellant a sum of $6,500.00 towards the costs associated with the obtaining of Dr Ravnskov's report. 

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