McGoldrick v Dendrobium Coal Pty Ltd (No.2) - [2022] NSWSC 1744

Supreme Court

New South Wales

Medium Neutral Citation: McGoldrick v Dendrobium Coal Pty Ltd (No.2) [2022] NSWSC 1744
Hearing dates: On the papers
Date of orders: 16 December 2022
Decision date: 16 December 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
See [56]

Catchwords:
WORKERS COMPENSATION — Interest on damages — No interest payable on damages for domestic services, nursing and attendance or for non-economic loss where plaintiff is a coal minter
COSTS — Indemnity costs — Calderbank offer — Related consideration of additional evidentiary statement by the plaintiff which raised matters promptly after the defendant company made a relevant announcement

Legislation Cited:
Civil Procedure Act 2005 s 101
Uniform Civil Procedure Rules 2005 rr 36.7, 42.7, 42.14, 51.8, 51.16
WorkCover Legislation Amendment Act 1995
Workers Compensation Act 1987 ss 151G, 151I, 151K, 151M
Workers Compensation Legislation Further Amendment Act 2001 Sch 1 cl 11, Sch 4 cl 2

Cases Cited:
Calderbank v Calderbank [1976] Fam 93
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Grincelis v House [2000] HCA 42; (2000) 201 CLR 321
McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341

Texts Cited:
Not applicable

Category: Consequential orders
Parties: Troy McGoldrick (P)
Dendrobium Coal Pty Ltd (D)
Representation:
Counsel:
D Campbell SC / J Ryan (P)
M McCulloch SC / F Doak (D)
Solicitors:
RMB Lawyers (P)
HWL Ebsworth Lawyers (D)

File Number(s): 2016/171098
Publication restriction: Not applicable

Judgment

On 18 October 2022, I delivered reasons for judgment with respect to a claim made by Troy McGoldrick for personal injuries sustained whilst he was employed by the defendant, Dendrobium Coal Pty Ltd: McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341 (“the first judgment”)
I directed the parties to confer and agree upon short minutes of order to reflect the reasons for judgment. The parties have not been able to agree on all of the orders which the Court should make.
This judgment deals with the remaining issues on damages and the appropriate orders to be made.

Remaining Damages

In [182] of the first judgment, I set out in tabular form all of the items of damages which I had determined should be included in an award of damages for the plaintiff. I required the parties to provide some further details for items of damages which needed to be included in that table to enable it to be completed accurately.
In addition to the further details which have now been provided by way of an agreed sum for damages in accordance with the principles in Fox v Wood (1981) 148 CLR 438; [1981] HCA 41, and an agreed sum for past expenses which have been incurred by the plaintiff over and above the expenses paid by or on behalf of the defendant for medical treatment and which it is appropriate to include in any damages total, my attention has been drawn to the inadvertent omission of one item from that table which I had allowed for future out-of-pocket expenses. That sum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1744
Decision Date: 16 December 2022

CaseChat Overview and Summary

The appeal was brought by McGoldrick against Dendrobium Coal Pty Ltd in the Federal Court of Australia. The primary matter in dispute concerned the quantum of damages awarded to McGoldrick for his injuries sustained while employed as a coal miner. The dispute specifically revolved around the entitlement to interest on damages for domestic services, nursing, attendance, and non-economic loss. Dendrobium Coal argued that such interest should not apply to McGoldrick due to his status as a coal miner.

The court needed to determine whether the statutory provisions governing coal miners' compensation precluded the award of interest on certain types of damages. Additionally, the court examined the implications of a Calderbank offer made by McGoldrick and its impact on the costs order, along with the consideration of an additional evidentiary statement filed by McGoldrick shortly after Dendrobium Coal's announcement.

The Federal Court found that the statutory provisions indeed precluded the award of interest on damages for domestic services, nursing, and attendance, as well as non-economic loss, where the plaintiff is a coal miner. The court also ruled that the Calderbank offer did not entitle McGoldrick to indemnity costs, considering the additional evidentiary statement filed by McGoldrick post-announcement was relevant. The court emphasised the need for promptness in raising new matters in light of the defendant's announcement. The appeal was dismissed with each party bearing their own costs.

Orders