Block v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 156 196 HELD AT WELLINGTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN JENNY BLOCK Appellant (Appeal No. DCA 35/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 18th day of November 1996 Counsel: Alison Douglass for appellant T P Cleary for respondent DECISION OF JUDGE D A ONGLEY This decision relates only to costs. The appellant suffered an accident in 1984. She received home help for periods of time until 12th July 1985 when she was notified that she no longer had an entitlement for compensation for home help. The adverse decision was based on an assessment that took into account irrelevant considerations, namely, the extent to which the appellant had engaged her home help before suffering her accident. Following the Corporation's decision the appellant applied for a review hearing. She was unsuccessful in having the assessment set aside and she appealed. Although she was still entitled to a new assessment, the underlying question of the correct considerations to be taken into account in making the assessment needed to be resolved. Otherwise, she could expect to be assessed again on a similar basis and to be refused her home help provision. - 2 . It was therefore necessary for her to engage legal advice. The notice of appeal was filed in February 1996. It set out the points of law and fact that needed to be resolved. Counsel for the appellant gave notice of application for leave to call call evidence of an independent occupational therapist's assessment which produced a total of 16 points, thus qualifying the appellant for home help. On 27 June 1996 the Corporation wrote to the appellant reversing its previous decision and offering home help for specific tasks. Counsel for the appellant replied asking for reimbursement for the previous 12 months on a calculated basis without the need for proof of payments, and she asked for payment of legal fees amounting to $1,200 plus GST, and the occupational therapist's fee. The latter was paid by the Corporation. It is clear from that material that there had been a need to instruct counsel and that counsel had to be involved in the process of consultation and advice, examining the documentation, obtaining instructions from the appellant, formulating the grounds of appeal, filing the notice of appeal, discussing the case with an occupational therapist, and obtaining the occupational therapist's report, before taking the matter up with the Corporation. It is true, as the respondent submitted, that the issues might have been resolved without instructing an independent occupational therapist, however, in the circumstances, it appeared to be a reasonable and expedient step for counsel to have taken as a choice between doing that or endeavouring on her own to persuade the Corporation that the underlying basis of the existing assessment was incorrect. The Corporation had been apprised of the argument for about six months before the appeal was filed, and during that time it had not accepted the grounds advanced by the appellant. After the June correspondence, counsel was obliged to see the matter through to obtaining a calculation of arrears and settlement of the appellant's costs. The matter would probably have been resolved more quickly if the file had been referred to the respondent's legal services branch, but that did not happen until September 1996 by which time counsel for the appellant had carried responsibility for the matter for about eight months. There was then further correspondence about the amount of costs to be paid by the Corporation and the collateral question whether the appeal should be set down in order to determine costs. The Corporation offered $400. Counsel for the appellant calculated costs by then of $1,500 plus GST. The respondent's view was that costs would not have exceeded $800 if the appeal had been heard and that $400 was reasonable for settlement in October 1996, given that the substantive matters had been resolved in June and there was little else required by way of legal representation apart from the handling of a small amount of correspondence. The following points should be taken into account: 1. The amount of arrears involved was not large but there was an ongoing question of liability which was important for the appellant. 2. The legal question was not complex. - 3 3. There was no requirement of real urgency but on the other hand the appellant, aged 90, required a timely and efficient resolution of the question. 4. The Corporation failed to address the legal issue until June 1996. 5. It was necessary for a notice of appeal to be filed and grounds of appeal to be defined, but it was not necessary to prepare for a hearing on appeal. 6. There were no interlocutory matters apart from a letter requesting leave to call some evidence. 7. Counsel for the appellant does not appear to have taken any unnecessary steps and the solicitor and client costs of $1,500, whilst they have not been subject to scrutiny, do not appear to be unreasonable. The Corporation did not refuse to settle in the face of compelling representations, but at the same time it has to shoulder responsibility for a systemic delay in moving the file from branch office to legal services. On balance, I conclude that the appellant is entitled to costs exceeding $400. If the result had been otherwise, the appellant would of course not have been entitled to costs of arguing the question. In the circumstances, a payment of $600 would have been reasonable. The appellant has been put to the additional expense of arguing the question of costs and an order is made for payment by the respondent of costs amounting to $700 in total. DATED at WELLINGTON this 23 day of December 1996 D A Ongley District Court Judge