Noble v Accident Rehabilitation and Compensation Insurance Corporation

Decision 27/97 IN THE DISTRICT COURT DCA No. 196/95 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN D.C. NOBLE APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Date of Decision: 25 February 1997 DECISION OF JUDGE J.H. LOVELL-SMITH AS TO COSTS On 3 September 1996, I issued a decision allowing the appeal reserving to the Appellant the right to apply for costs. The Appellant has now applied for costs. Counsel for the Appellant, Mr S Piggin, submitted as follows: 1. By letter of 5 September 1996 counsel invited the Respondent's solicitors to agree that costs be fixed at $3491.95 being the amount of Mr Noble's costs on legal aid. In reply the Respondent proposed a figure of $800.00 2. 2. The appeal concerned Mr Noble's entitlement to receive payment from the date of injury (30 March 1993) for home help and child care provided by Mrs Peeke whilst living in his home. The Corporation agreed to pay home help and child care but only from 6 December 1994 and not for Mrs Peeke's services. 3. Mr Noble sought a review and later appealed against the review decision. He sought payment from the earliest date being the date of the injury with such payment to be made for Mrs Peeke's services. 4. The following factors appear relevant to the fixing of costs: (a) The Appellant's actual costs are $3491.95. A copy of the legal aid account is annexed. This is at about 60% of the charge out rate on a private retainer. $800.00 as proposed by the Corporation does not appear to be a reasonable contribution. (b) It is submitted that the costs of the appeal were reasonably incurred in pursuing an issue important to the Appellant and to those with serious injuries generally, that is whether they are entitled to receive payment for the substantial costs of 24 hour care by a live in provider. (c) The conduct of the Corporation is relevant. The Corporation declined the application for payment for home help and child care provided by Mrs Peeke, both from the application date 6 December 1994 and retrospectively from the date of accident in 1993, relying on Regulation (6) 6 of the "Home Help" and "Child Care" regulations. For reasons unknown, the Corporation later did decide to pay for home help and child care by Mrs Peeke relying on the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994 (see copies of interim and final CPI 3. assessments attached) as from 27 July 1995. There was no restriction under the CPI approval on payment to Mrs Peeke. The Corporation ought not to approbate and reprobate. For whatever reason, the Corporation did not concede the matter already under appeal and put the Appellant, and the Legal Aid fund to the cost of pursuing the appeal, in effect for home help and child care from the date of accident 30 march 1993 down to the CPI assessment on 27 July 1995. (d) The appeal may have been something of a test case on the issue of payment of live in providers. Awards of, or approaching solicitor and client costs have been made in test cases on appeal involving a department or agency of government (CIR v Inglis [1993] 2 NZLR 29 (CA): CIR v Stockwell [1993] 2 NZLR 40 (CA) ). 5. In the circumstances it is submitted that costs and disbursements in the appeal be fixed at or approaching $3491.95. By letter dated 12 November 1996, Ms Dall replied to Mr Piggin's submissions as follows: . "Counsel for the Appellant lists what he considers to be the relevant factors in fixing costs in paragraph 5 of his submissions. With respect to his paragraph (a), it is submitted that the issue on appeal was the interpretation of regulation 6(6) of both the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Childcare) Regulations 1992 and the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Home Help) Regulations 1992. In light of the narrowness of the issue on appeal, one could argue that the costs submitted by the Appellant of $3,491.95 are high and represent an unwarranted amount of time spent on this appeal. In the circumstances, it is submitted that a contribution of $800 by the Corporation is reasonable. With respect to his paragraph (b), it is not, and never has been denied that the issue was important to the Appellant and further the Corporation acknowledges the seriousness of the Appellant's injuries. However, it is also submitted that the Corporation was entitled to take the view that it did. 4. Counsel for the Appellant refers to the conduct of the Corporation in paragraph (c). The issue in this appeal was the interpretation of regulation 6(6) of the Home Help and Childcare Regulations. If the Corporation subsequently determined the Appellant was entitled to home help and childcare under the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994, that is a decision it was entitled to make under those regulations, but is not relevant to the determination of this appeal. In fact, those regulations give the Corporation wide discretion to grant entitlements which would not otherwise be permitted under the Social Rehabilitation Regulations. Virtually the only limitation imposed upon the Corporation is that imposed by regulation 17(b) which limits the payments the Corporation can make to reimbursement of expenses actually incurred between the date of the receipt by the Corporation of a request for an evaluation to be made under the regulations and the date of agreement to the social rehabilitation programme provided for under the same regulations. Presumably, that was the reason for the so-called "approbation" and "reprobation" referred to by counsel for the Appellant. He then goes on to say that the Corporation did not concede the matter already under appeal. The Corporation had no obligation to do so. On the contrary, its obligation is to abide by the legislation which governs it - and the Corporation was entitled to give the regulations under consideration on appeal their literal interpretation. Further, the Corporation also has an obligation to treat its claimants equally. With respect to his paragraph (d), I make no comment other than to say that the Corporation did not approach this appeal as if it were a test case. . It is further submitted that counsel for the Appellant acknowledged at the appeal that the literal meaning of regulation 6(6) would be that no payment could be made for a live-in provider (page 5 of the decision). It is difficult to see how, by the Corporation adopting the literal interpretation of that regulation, its "conduct" in doing so should be held up as a reason for awarding high costs against it. By adopting a literal interpretation it was merely doing what Parliament had directed it to do. On the contrary, to make an award of such high costs could almost seen to be penalising the Corporation for interpreting the regulations literally. Such an interpretation cannot be said to be unreasonable. . Finally, it is submitted that a full award of costs should not be made in this case, and that the Corporation's offer of $800 is a reasonable contribution." Counsel for the Appellant replied in a letter dated 5 November 1996 as follows: 'With regard to quantum of costs, the Legal Services Committee apparently considered the appellant's costs were reasonably incurred and paid them. 5. With regard to approbation and reprobation, it appears from the Corporation's file (page 7 of the material supplied on appeal) that the Corporation was aware of the Home Help/Child Care Regulations and the Complex Personal Injury Regulations when it received the appellant's application for assistance in December 1994, declined such assistance via Mrs Peake relying on the Home Help/Child Care Regulations in April 1995, but granted such assistance under the Complex Personal Injury Regulations in July 1995 after the appellant had proceeded with his Review application. It is respectfully submitted that the Corporation's handling of the application tended towards the unreasonable as the appellant's legal costs involved in this whole matter may have been avoided if the Corporation had simply granted assistance under the "Complex Person Injury" Regulations in the first place in April 1995. Further approbation and reprobation by the Corporation lies in the inconsistent interpretation and practice between the appellant's pamphlets and letters on the one hand and the literal interpretation taken of Regulation 6(6) on the other. In all the circumstances the appellant seeks costs in a sum greater than $800.00." I do not accept that this is a case where the Corporation's conduct should reflect in an adverse award of costs. In my view, the Corporation was entitled to take the view that it did. The issue on appeal was an interpretation of regulations 6(6) of both the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Child Care) Regulations 1992 and the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Home Help) regulations 1992. Counsel for the Appellant acknowledged at the appeal that the literal meaning of Regulation 6(6) will be that no payment could be made for a live in provider and I have to agree with Miss Dall's submissions that it is difficult to see how, by the Corporation adopting a literal interpretation of that regulation, its conduct in doing so should be held up as a reason for awarding high costs against it. The Corporation has offered $800. The Appellant is entitled to costs in excess of $800 given the serious grounds on which the appeal was brought by the Appellant. The Appellant is entitled to half the legal aid costs being $1745.98. 6. The Registrar is to send a copy of this decision to the Corporation and the Appellant's counsel. (Jane H. Lovell-Smith) District Court Judge