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Accident Compensation Cases

Patel v Accident Compensation Corporation (DC, 22/01/07)

Judgment Text

Judge J Cadenhead
I have read the parties' memoranda concerning costs. 
The third party seeks an order for costs against the appellant on the basis that as a general principle, the unsuccessful party must pay the costs of the successful party. It is submitted that in this appeal there is no reason to depart from that principle. The third party claims costs in the sum of $860 in terms of Schedule 2A. 
The respondent does not claim costs. 
I have had a response from the lay advocate acting for the appellant. The appellant is not entitled to legal aid and it is stated that the family of the appellant receive only less than moderate income, and received a “top up” from Work and Income to pay the bills. It is said that if the appellant had to pay the costs it would have a considerable impact on her family and that she would not be able to pay the costs. The submission is that the appellant has had to pay for the doctors' and specialists' reports. She made a trip to her home country, India, to obtain her specialist report and these costs have had an impact on her and her family. Her parents paid for the cost of the specialist reports. Her lay advocate has advised that she did not tell the appellant that the appellant would have to meet costs if the appeal was lost. The lay advocate submits that no other person has had to pay costs on the loss of an appeal. The Catholic Support Services help the appellant with care for her baby and house work. 
In the case of Blakemore Appeal AI427/04, I observed that the Accident Compensation Legislation was social legislation that had the purpose of enhancing the public good and reinforcing the social contract, providing for a fair and sustainable scheme for managing personal injury. Its over-riding goals were 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 Ministry of Justice an amount for the “reasonable administrative costs of appeals”, and therefore, effectively funds the costs of statutory appeals under the legislation. 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. 
In Blakemore (supra) I said that I did not think as a matter of principle that costs necessarily follow the event in this jurisdiction. I was of the view that an analogy could be drawn with the issue of costs as set out in the principles laid down in the Family Court. 
In my view, the appeal was a proper appeal to be brought and to that extent it differs from the case of Blakemore
I exercise my discretion by balancing the competing interests relating to this appeal and also to the wider policy issues. In this appeal I have come to the view that costs should lie where they fall. I have regard to the financial situation of the appellant and that she was not advised by the lay advocate that she could have to meet costs if her appeal was unsuccessful. I would point out to the lay advocate that she is wrong and costs have been awarded on appeal in this jurisdiction in certain cases. I accept it is rare for the respondent to claim costs, however, when third party doctors are involved, different considerations apply. 
I give notice to the lay advocate that she should advise her clients of the situation that where third party doctors are involved in the event of an unsuccessful appeal, costs might be awarded. 
However, in the circumstances of this case, particularly having regard to the financial situation of the appellant and the fact that this was an appeal that on the face of it was worth bringing, there will be no order as to costs. Costs will lie where they fall. 

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