Estate of Otter v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 100/98 IN THE DISTRICT COURT DCA No. 8/95 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 THE ESTATE OF JENNIFER ANNE OTTER Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Heard at : Auckland Date of Judgment: 14 May 1998 RESERVED JUDGMENT OF JUDGE J.H. LOVELL-SMITH Solicitors: [PA\LOVELLJ\OTTER.DOC sb] 2. At the conclusion of my decision in respect of this appeal of 16 December 1996, I invited the parties to file further submissions if costs could not be agreed. For a variety of reasons there have been considerable delays since then I have now considered the appellant's and the respondent's submissions. The appellant is seeking costs on a solicitor and client basis in the sum of:- Total legal costs (including disbursements) 5,232.50 Professor Holdaway's fees 500.00 $5.732.50 The appellant submits that it is entitled to costs on a full indemnity basis because the conduct of the respondent unnecessarily delayed the proceedings which include the respondent's failure to provide the appellant's file to medical experts and objections by the appellant to the evidence of Professor Holdaway. It is the appellant's submission that it had always been clear on the facts that the death of Jennifer Anne Otter resulted from medical misadventure as defined under the Act, and that it was unjust and unfair to the respondent to continue to decline the appellant's claim for compensation. For the respondent, it was submitted that the respondent was clearly entitled and bound to defend the appeal on the evidence, and the respondent 3. was entitled to object to the evidence of Professor Holdaway and then ultimately withdrew that objection. The respondent offers to contribute the sum of $1,400 plus GST because of the protracted nature of the appeal, and to pay $500 for the reports from Professor Holdaway, even though it is submitted on the part of the respondent his report was essentially inconclusive. In my view, this was a complex case. There were significant delays. I do not accept that these can all be attributed to the respondent. This is not, in my view, a case where costs on a solicitor and client basis can be justified, but given the complexity of the appeal, in my view, an award of a substantial amount of the appellant's costs is appropriate. The respondent is ordered to pay cost of $2,500 to the appellant together with Professor Holdaway's fees of $500. (Jane H. Lovell-Smith) District Court Judge