n of the Deputy Director. The subsequent foot condition, strangulated hernia and hemorrhoid operation, whatever their added effects may be, need not be taken into consideration for the reason that the other conditions alone sustain a finding of total disability. Respondent next contends that, assuming that the consequences of the second injury when combined with the prior disabilities produced total permanent disability, subsection (d) still forecloses recovery from the One Per Cent Fund. He argues that the results of the second injury must immediately produce a total and permanent disability and that a two-year delay in the manifestation of the crippling effects of the injury (the thrombophlebitis) renders it "a progressive physical deterioration" within the meaning of subsection (d). It would be a sufficient answer to reiterate the language of the court in Inre El, 18 N.J. Misc. 348, 349 ( Com. Pl. 1940), modified on other grounds 125 N.J.L. 150 ( Sup. Ct. 1940), affirmed percuriam 125 N.J.L. 510 ( E. A. 1941): "There is no provision that the total disability must occur simultaneously with the `subsequent permanent injury' nor that it shall occur `immediately thereafter.' Such a limitation would be illogical, for we know by common knowledge and experience that the effects of traumatic injuries are not to be reliably gauged by manifestations evinced simultaneously with the accident, or `immediately thereafter.'"
It is true that recourse to the One Per Cent Fund may not be denied merely because part of the total disability is attributable to a condition which appeared subsequent to the last compensable accident suffered by petitioner. In re El, 18 N.J. Misc. 348, 349, 13 A.2d 561 ( C.P. 1940), modified on other grounds, 125 N.J.L. 150 ( Sup. Ct. 1940), affirmed per curiam 125 N.J.L. 510 ( E. A. 1941). However, where the pre-existing progressive conditions independently produced total disability, as in this case, recovery from the Fund is precluded.
As a taxed cost of litigation, it is in the nature of a statutorily authorized penalty against the judgment debtor, saddling him with the burden of compensating the creditor's attorney for the latter's litigational duties. Cf. Katz v. Farber, 4 N.J. 333, 338 (1950); El v. Toohey, 125 N.J.L. 150, 152 ( Sup. Ct. 1940), affirmed 125 N.J.L. 510 ( E. A. 1941); Fagliarone v. Consolidated Film Industries, Inc., 20 N.J. Misc. 193, 196 ( Cty. Ct. 1942), affirmed 131 N.J.L. 315 ( E. A. 1944). We are not dissuaded from our position by defendants' reference to Bank of Commerce v. Markakos, 22 N.J. 428 (1956), in which the Supreme Court held unenforceable a provision in a mortgage bond providing a counsel fee upon foreclosure in excess of the schedule of fees set forth in R.R. 4:55-7 (c).
This court is not bound by the contrary view of the Essex County Court of Common Pleas in Application of Glennon, 18 N.J. Misc. 196 ( C.P. 1940). See also In re El, 18 N.J. Misc. 348 ( C.P. 1940), reviewed as to other matters at El v. Toohey, 125 N.J.L. 510 ( E. A. 1940). The second argument is grounded upon the provision of the statute for compensation to persons experiencing "a subsequent permanent" compensable "injury * * * when such persons had previously been permanently and partially disabled from some other cause."
Public policy favors free access to the courts, which is the reason such costs in the absence of statutory provisions explicitly making them part of taxable costs or otherwise authorizing their imposition on other parties are damnum absque injuria and without redress. 1 Corpus Juris "Actions", Section 60 (d), page 967 ; Textileleather Corp. v. American Mut. Insurance Co., 110 N.J.L. 483 (E. A. 1938); El. v. Toohey, 125 N.J.L. 150, affirmed 125 N.J.L. 510; and see Cook v. Chapman, 41 N.J. Eq. 152 (Ch. 1886). Such items are "the natural burden of any individual involved in litigation, whether or not he is successful".