Application for costs - Worker failed at judicial determination but seeks costs - Corporation contend that she acted unreasonably and should not be awarded costs - Worker's conduct considered - Award of costs is made in her favour - S.95 Workers Rehabilitation and Compensation Act 1986.

Mr. T. O'Callaghan (of counsel) for the Respondent.

In a decision published by me on 12 November 1998, J.D.80/1998 I came to the conclusion that the Corporation was right to have rejected the worker's claim for compensation and I therefore confirmed its determination. At the time of delivering the decision I reserved the question of costs and gave the parties liberty to apply.

Sometime thereafter the worker, through her solicitors, made an application for costs. The Corporation resists that application contending that in the circumstances the appropriate order should be that there be no order made as to costs.

The governing statutory provision is Section 95. It relevantly provides as follows:-

`95. (1) A party (other than the relevant compensating authority) is entitled, subject to this Part and to limits prescribed by regulation, to an award against the relevant compensating authority for the party's reasonable costs of -

(a) the initial reconsideration of a disputed decision; and

(b) any subsequent proceedings for resolution of the dispute under this Part (but not proceedings by way of an appeal or case stated to a Full Bench of the Tribunal or the Supreme Court).

(3) If the Tribunal is of the opinion that a party acted unreasonably, frivolously or vexatiously in bringing or in relation to the conduct of proceedings, the Tribunal may -

(a) decline to make an award of costs in favour of the party and may further (if it thinks fit) make an award of costs against the party; or

(b) reduce the amount of the award to which the party would otherwise have been entitled.

A determination of how that provision should be applied in this case requires some analysis of the worker's case and the reasons why she failed.

The worker claimed compensation pursuant to the Act in respect of a medical condition known as costrochondritis, which she alleged resulted from an assault that occurred on 17 April 1995 during the course of her employment. The worker did not complete a notice of disability in relation to this incident until 28 December 1995. The Corporation rejected the worker's claim on a number of bases. First, on the ground that it was statute barred because of an alleged failure to provide notice within the time limit prescribed by Section 51(3) of the Act. Secondly it was asserted that the worker had not sustained a compensable disability as alleged.

The worker disputed the Corporation's rejection of the claim and that in turn resulted in the dispute proceeding through the dispute resolution process provided for by the Act. In particular, it resulted in a hearing before an Arbitration Officer who found in favour of the worker. Thereafter the Corporation made application for the dispute to be judicially determined and in accordance with Section 94C(1) of the Act I determined that dispute without regard to the decision made by the Arbitration Officer.

I rejected the Corporation's time point. I found that the worker's claim was not statute barred. Despite some evidence to the contrary, I further found that the diagnosis of costrochondritis was correct. That finding although important, was not pivotal to the ultimate conclusion. There was evidence that I accepted that indicated that costrochondritis did not necessarily have to relate to a trauma. In determining whether or not a connection was made between the assault and the condition of costrochondritis I thought it important to reflect upon the worker's evidence. In respect thereof I made the following observation:-

`At this point I think it necessary to reflect upon my observations of the worker. Although much of her evidence on other topics was plainly true, I was troubled by her evidence in relation to this issue. I thought that at times she was evasive in answering questions put to her in cross-examination. I felt that at times she was prone to exaggerate. She seemed to me to be decidedly uncomfortable when matters that she perceived to be unfavourable to her case where being put to her.'

`I have reflected upon what was said to me in Court and I have read and re-read the transcript and the book of documents. Whilst I can readily understand why the worker would associate the diagnosis of costrochondritis with the injury, I have come to the conclusion that her memory of pain in the region of her costrochondrial junction over the period from late April to mid October 1995 is the product of her reconstructing and that her evidence on this topic does not accurately reflect what in fact transpired. I am simply not satisfied to the requisite degree, that pain in that region persisted over that period.'

`... having as I do, a lack of confidence about the candour of the worker's evidence concerning the presence of and persistence of pain in the region of her costrochondrial junction over the period from late April to mid October 1995, and being mindful that the expert medical evidence clearly establishes that costrochondritis does not necessarily have to result from trauma, I find myself unable to accept the opinions of Dr. Hill and Dr. Meegan to the effect that the injury and the condition of costrochondritis are linked. I recognise that the possibility of that link cannot be excluded. But in the end, having carefully considered all the evidence, I am not persuaded on the balance of probabilities that the worker's costrochondritis resulted from the injury.'

The Corporation contends that the worker acted unreasonably in prosecuting this claim. It contends that Section 95(3) contemplates a scale of degrees of unreasonableness. At one end of the scale there might be cause to make an award of costs in favour of the worker but to reduce the amount payable. At the other end of the scale it might be appropriate to make an award of costs in favour of the Corporation against the worker. In submitting that in this case the appropriate order is for there to be no order for costs it contends that the worker acted unreasonably but that the measure of her unreasonableness is midway between these two extremes.

The worker lost her case before me because I felt the need to be satisfied that the complaints of pain in the costrochondrial junction persisted from the time of the original assault in April of 1995. I was concerned about the lack of what I thought to be reliable corroborative evidence of complaints of pain for the period of six months or thereabouts from the time of the assault I felt the need to find independent corroborative evidence because I was troubled by the evidence that the worker and her husband gave on that issue. Absent that evidence, I was not persuaded that the worker had made out her case.

There are cases where a worker fails on issues of credit where his or her conduct has clearly been unreasonable so as to require the invocation of Section 95(3). A case where the Tribunal is of the view that the worker is clearly lying on issues central to the pursuit of the claim is an obvious example. But not all adverse findings as to the credit of a worker necessarily translate to a finding that the witness was telling lies. As Professor Eggleston in his text `Evidence, Proof and Probability' noted at pp.152 and 153:-

`The assessment of the credibility of a witness does not merely involve making a decision as to whether the witness is telling lies. Strictly speaking, a lie is a statement which the speaker does not believe to be true, but many witnesses make false statements in the firm belief that they are telling the truth.'

In this case, I did not think that in giving her evidence the worker was deliberately lying to me. I think that her evidence was coloured and tainted by her reconstruction and that she subconsciously elevated `well I must have been in continuous pain in that region over the relevant period' to `I was in continuous pain in that region over the relevant period'.

The worker's demeanour did not demonstrate to me a person who was patently lying. What it did do was demonstrate to me a person who felt doubts about the conviction she had in her recall of events when inconsistencies between that recall and other evidence was placed before her.

Section 95(3) requires me to apply the notion of reasonableness in determining the decision of the worker to initiate this dispute and to bring it to trial. The fact that the worker ultimately failed to persuade me is not decisive. It is a question as to whether in all the circumstances it was unreasonable for the worker to have taken this case on. In my judgment the worker's conduct cannot be so categorised. I therefore think it is appropriate to make an order for costs in her favour. Upon the application of the worker's former solicitors Messrs. Duncan and Hannon, I think it appropriate to make an order pursuant to Section 94(4) of the Act that that order for costs be made directly in their favour.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to Section 89(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.