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Accident Compensation Cases

Blakemore v Accident Compensation Corporation (DC, 16/11/06)

Judgment Text

DECISION OF JUDGE J. CADENHEAD AS TO COSTS 
Judge J. Cadenhead
[1]
I have considered the submissions of counsel in response to my memorandum as to costs. I might say that I have found this decision difficult. As I said at paragraphs 3 and 4 concerning the respective doctors, Dr D Wilson and Dr Ritchie: 
“[3]
I have taken into account the submissions of counsel for Dr D Wilson. The strong submission is made that there was no evidence or opinion that justified the inclusion of Dr Wilson in the application for a review or appeal. It is submitted that the judgment and in previous judgments the advocate for the appellant was put on notice of the need for materials to be provided with proper medical instructions. The submission is made that no evidence was provided that justified the appeal. Further, the appeal was heard at the Court closest to the advocate for the appellant, not the Court closest to the appellant, nor the Court closest to the respondents or their counsel. 
[4]
In regard to Dr Ritchie, a submission is made that the costs should follow the event. The submission is made that it is not unusual for the advocate for the appellant to file reviews and appeals of this kind, when little or no evidence is served in support of the application, and where the advocate makes comments that can only amount to a submission unsupported by any evidence. The submission is that the appellant and her advocate must bear the responsibility for failing to prosecute the appeal properly, and for putting the respondents to the time and expense of defending the allegations. ”
[2]
The contentions of these doctors have considerable force. On the other hand, it appears from the financial situation of the appellant, along with her personal situation, that by the time she pays her fortnightly outgoings she has no money available to her. She lives fortnight to fortnight and just manages to get by. 
[3]
The accident compensation legislation is social legislation that has its purpose of enhancing the public good and reinforcing the social contract providing for a fair and sustainable scheme for managing personal injury. It has as its overriding goals the minimisation of injury in the community, and the impact of injury on the community (including economic, social and personal costs). One of the goals is to ensure claimants receive fair compensation for loss of injury. Pursuant to s 164 of the 2001 Act ACC pays the Department for Courts an amount for the “reasonable administrative costs of appeals”, and therefore, effectively funds the cost of statutory appeals under the legislation. There is no filing fee in respect of appeals either against decisions of reviewers or in respect of appeals from those review decisions. 
[4]
It is rare for the ACC to seek costs when an appellant is unsuccessful, or when it succeeds in an appeal where it is the appellant. The respondent has not sought costs in this case. 
[5]
To a certain extent there is an analogy in this jurisdiction with the Family Court. In that respect I observe the principles that were laid down by Morris J in B v G (1994) 12 FRNZ 515Has Cases Citing which are not known to be negative[Green] , 517-518: 
“I do not accept, as a matter of principle, in proceedings of this nature costs necessarily follow the event. No statutory provision so provides and indeed the discretion given under the statute is an indication to the contrary. That is understandable as in so many of these proceedings the paramount interest is that of the child and not of the parties. I suspect also in many cases this discretion is there so that essentially family proceedings and disputes can be settled on a much more amicable basis with the future in mind rather than the normal run of civil cases where parties are unlikely to meet again and know at the beginning costs will, without doubt, follow the result. ”
[6]
Again in Peebles v Young (Auckland, High Court, AP 404/150, 2.5.2001 — Potter J) the Court made the observations that costs orders in custody and access cases were rare because: 
“The Court understands, and expects, that after separation, there may often be recourse to litigation to obtain assistance in fixing appropriate care arrangements for the children. Parties ought not to be discouraged from testing genuinely held views. ”
[7]
I do not say that the situation is exactly the same in this jurisdiction, but I do not think as a matter of principle that in this type of proceeding costs necessarily follow the event. 
[8]
I am particularly aware of the merit in the submissions presented by counsel for both doctors that this appeal was not based on solid grounds, and the submission that they were innocent parties is caught up in these proceedings and should not be made to bear the costs. Further, there is a policy issue of encouraging careful assessment of the matters before bringing appeals. The imposition of costs may provide a useful disincentive to bringing unmeritorious appeals. 
Decision 
[9]
In the exercise of my discretion I have endeavoured to balance the competing interests relating to this appeal, and also to the wider policy issues. At the end of the day with some hesitation I have come to the view that costs should lie where they fall. I have given considerable weight to the financial information I have received from the appellant as to the hardship that would arise to her and her family if an imposition of costs was made. I have sympathy for the position of the two doctors, who in my view were unnecessarily brought into this appeal. Very much I have decided this ruling as to costs as to the personal factors arising from this case. This decision should in no way be seen as sanctioning the unmeritorious bringing of appeals. 

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