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Accident Compensation Cases

Skedgwell v Accident Compensation Corporation (DC, 19/01/06)

Judgment Text

DECISION AS TO COSTS ON REVIEW AND ON APPEAL 
M J Beattie Judge
[1]
I heard this appeal on 5 July 2005 and issued a Reserved Judgement on 4 August 2005 under Decision No.237/05. The appellant was successful in his appeal. 
[2]
The appellant represented himself at the hearing of the appeal and in line with established precedent and practice I made no order for costs in his favour for that reason. I did allow a sum for disbursements. 
[3]
Subsequent to the delivery of my Judgement, the appellant applied to the Court for consideration of two issues which he submitted were still extant and ought to be considered. 
[4]
The first issue was the decision of the Reviewer not to allow for reimbursement to the appellant of the costs of the specialist report of Dr Wigley which was presented at the Review Hearing on the appellant's behalf. The cost of Dr Wigley's report was $950. 
[5]
The second issue, which arises indirectly from the hearing of the appeal before me, is a request for reimbursement to the appellant of the legal costs he incurred with Mr N Ormsby, Solicitor, for the filing of the Notice of Appeal and then the presenting of written submissions in support. 
[6]
In a Minute to the parties, dated 20 October 2005, I indicated that both these issues were still alive and that the appellant was entitled to a decision in respect of each of them and I called for submissions in that regard. 
[7]
I have now received submissions from Mr J Roberts, Counsel for the Respondent, having previously received submissions from the Appellant at the time he made his initial request. 
[8]
It is clear from the Notice of Appeal that was filed on the appellant's behalf by Mr Ormsby that the question of the Reviewer's refusal to award reimbursement of the cost of Dr Wigley's medical report was in issue. That issue was never canvassed at the hearing of the appeal but I accept that it is a matter which requires to be concluded. 
[9]
In her decision of 10 March 2005, the Reviewer determined that the appellant's application for review be dismissed. The issue in the review was whether the respondent had correctly determined that the appellant had attained Vocational Independence. 
[10]
At the conclusion of her decision under the heading “Costs” the Reviewer stated, inter alia, as follows: 
“A finding that an applicant has Vocational Independence has serious implications for that applicant and where an applicant does not consider the determination that he or she has Vocational Independence is correct, it is appropriate that the decision should be challenged and the decision tested against the evidence. 
In this regard I accept that it was reasonable for Mr Skedgwell to apply for a review and to that extent I am prepared to award the standard representation costs of $550. However, Mr Skedgwell has also asked for an award of costs in respect of Dr Wigley's report for which the fee is $950. While it was necessary for Mr Skedgwell, if he was to be successful in bringing his application for review to support his case with a medical report, I have, as I have already indicated, grave concerns about Dr Wigley's report and in these circumstances I do not consider it appropriate to make an award of costs in respect of this report. ”
[11]
It seems that the reasoning for the Reviewer making the comments she did was the fact that the Reviewer compared the examination carried out by Dr Wigley with that which had been earlier carried out by the Medical Assessor and had noted that the appellant's presentation to Dr Wigley was quite different from that which he presented to the Medical Assessor. It seems to be for this reason that the Reviewer did not consider Dr Wigley's report could satisfy her that the previous medical assessment was flawed. She went so far as to say that she strongly suspected that the appellant had not presented himself to Dr Wigley in a genuine way. 
[12]
Those comments made by the Reviewer I find cannot and should not impact upon the contents of Dr Wigley's report and of the recognition by the Reviewer that indeed a medical report was a necessary part of any review application against a decision relating to Vocational Independence. 
[13]
Without putting too fine a point on it, I find that the Reviewer's reasons for disallowing Dr Wigley's report to be quite erroneous and not in accordance with the spirit and intent of the Act and the regulations and I rule that the Reviewer, having found that the application for review had been reasonably brought ought to have allowed for the cost of Dr Wigley's report, or at least the amount for such reports as allowed by the regulations, which at the time was $800. 
[14]
Accordingly, I find that the appellant is entitled to a further award of disbursements of $800 in relation to Dr Wigley's report and to that extent his appeal from the Reviewer's decision is further allowed in that regard. 
[15]
Turning now to the question of costs in relation to the appeal, it is accepted by Mr Roberts for the respondent that Mr Ormsby did act on the appellant's behalf at the time of filing of the Notice of Appeal and on the presentation of written submissions. The sum sought by the appellant is in fact $2,250, which is the fee charged by Mr Ormsby to the appellant for his attendances. 
[16]
I accept Mr Robert's submission that an award of costs in this jurisdiction is to be taken only as a contribution towards costs rather than a reimbursement of solicitor/client costs, and therefore the appellant's request that he receive an order for $2,250 costs cannot be granted. 
[17]
Having said that, however, it is the case that whilst a lay person cannot expect to receive an award of costs when that person has conducted the appeal him/herself, that general rule must be subject to the exception that where an appellant has had a solicitor acting for him and that solicitor has taken a proper part at an earlier point in the appeal, but that the appellant ends up representing himself at the hearing, that appellant is nevertheless entitled to a contribution towards the costs which the appellant has incurred in obtaining the legal advice and assistance which he did. 
[18]
Mr Roberts submitted that in the circumstances a reasonable award of costs to take account of the role played by Mr Ormsby would be $500. I agree that this is the sum which is appropriate in the circumstances having regard firstly to the fact that Mr Ormsby's role did cease following the filing of submissions, and secondly to the general level of costs awarded to successful appellants in this jurisdiction. 
[19]
Accordingly, my decision on the question of costs as stated in my Judgement of 4 August 2005 is amended by adding that the appellant is entitled to receive a further sum of $500, being an allowance towards his costs of legal representation for the purposes of the appeal. 

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