Mount Arthur Coal Pty Ltd v Duffin - [2021] NSWCA 49

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mount Arthur Coal Pty Ltd v Duffin [2021] NSWCA 49
Hearing dates: 8 February 2021
Date of orders: 30 March 2021
Decision date: 30 March 2021
Before: Meagher JA at [1]
Gleeson JA at [2]
Payne JA at [3]
Decision:
(1)   Appeal allowed in part;
(2)   Set aside order 1 made on 20 May 2020 and in lieu thereof order that the defendant pay to the plaintiff the sum of $2,487,891.10;
(3)   Set aside order 1 made on 23 June 2020 and confirm that the defendant is ordered pay the plaintiff’s costs of the trial on an ordinary basis;
(4)   Appeal otherwise dismissed;
(5)   Order the appellant pay 90% of the respondent’s costs of the appeal.

Catchwords:
TORTS – general principles – contributory negligence – where respondent injured while driving a grader on a coal mine haul road after rain event at night – where respondent hit a lamination in the road – where other employees using the area had failed to notice hole in the road – whether respondent guilty of contributory negligence
NEGLIGENCE – damages – personal injury damages – future attendant care – future economic loss – out of pocket expenses – where primary judge did not make deduction for vicissitudes for future medical expenses or future attendant care – whether appropriate to account for respondent’s pre-existing conditions when awarding future out of pocket expenses and costs of future attendant care
NEGLIGENCE – damages – non-economic loss – s 151G Workers Compensation Act 1987 (NSW) – whether primary judge was required to determine extent to which respondent would have developed pain and disability due to underlying conditions
COSTS – party/party – bases of quantification – indemnity basis – where offer purported to be made pursuant to UCPR r 20.26 – whether offer complied with requirements of r 20.26 – whether primary judge erred in ordering indemnity costs in reliance on offer

Legislation Cited:
Civil Procedure Act2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.14
Workers Compensation Act 1987 (NSW), s 151G, Sch 6 Pt 18 cl 3(1)
Workers Compensation Legislation Amendment Act 2001 (NSW)
Workers Compensation Legislation Further Amendment Act 2001 (NSW), Schs 1, 2, 3, 8

Cases Cited:
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20
Bostik Australia Pty Ltd v Liddiard(No 2) [2009] NSWCA 304
Calderbank v Calderbank [1976] Fam 93
Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219
Duffin v Mount Arthur Coal Pty Ltd [2020] NSWSC 229
Duffin v Mount Arthur Coal Pty Ltd (No 2) [2020] NSWSC 790
Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports 81-731
James v…

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: [2021] NSWCA 49
Decision Date: 30 March 2021

CaseChat Overview and Summary

The appeal in *Mount Arthur Coal Pty Ltd v Duffin* concerned a dispute arising from injuries sustained by the respondent, Mr Duffin, while operating a grader on a coal mine haul road after a night-time rain event. Mr Duffin struck a lamination in the road, an issue that other employees working in the area had not noticed. The primary dispute revolved around whether Mr Duffin was guilty of contributory negligence.

The court was required to determine several legal issues. These included whether the primary judge erred in failing to find contributory negligence on the part of the respondent. Further, the court considered whether the primary judge had made appropriate deductions for vicissitudes when assessing future medical expenses and future attendant care, and whether the respondent's pre-existing conditions should have been accounted for in these calculations. The court also had to determine if the primary judge was required to assess the extent to which the respondent's pain and disability would have developed due to underlying conditions, particularly in relation to non-economic loss under s 151G of the *Workers Compensation Act 1987* (NSW). Finally, the court examined whether the primary judge erred in ordering costs on an indemnity basis, given a purported offer made under UCPR r 20.26.

The Court of Appeal allowed the appeal in part. It set aside the original orders regarding the quantum of damages and the basis of costs for the trial. In lieu of the original damages order, the court ordered that the defendant pay the plaintiff the sum of $2,487,891.10. The court confirmed that the defendant was ordered to pay the plaintiff’s costs of the trial on an ordinary basis. The appeal was otherwise dismissed, and the appellant was ordered to pay 90% of the respondent’s costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed in part;

(2) Set aside order 1 made on 20 May 2020 and in lieu thereof order that the defendant pay to the plaintiff the sum of $2,487,891.10;

(3) Set aside order 1 made on 23 June 2020 and confirm that the defendant is ordered pay the plaintiff’s costs of the trial on an ordinary basis;

(4) Appeal otherwise dismissed;

(5) Order the appellant pay 90% of the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mount Arthur Coal Pty Ltd v Duffin [2021] NSWCA 49
Hearing dates:	8 February 2021
Date of orders:	30 March 2021
Decision date:	30 March 2021
Before:	Meagher JA at [1] Gleeson JA at [2] Payne JA at [3]
Decision:	(1) Appeal allowed in part; (2) Set aside order 1 made on 20 May 2020 and in lieu thereof order that the defendant pay to the plaintiff the sum of $2,487,891.10; (3) Set aside order 1 made on 23 June 2020 and confirm that the defendant is ordered pay the plaintiff’s costs of the trial on an ordinary basis; (4) Appeal otherwise dismissed; (5) Order the appellant pay 90% of the respondent’s costs of the appeal.
Catchwords:	TORTS – general principles – contributory negligence – where respondent injured while driving a grader on a coal mine haul road after rain event at night – where respondent hit a lamination in the road – where other employees using the area had failed to notice hole in the road – whether respondent guilty of contributory negligence NEGLIGENCE – damages – personal injury damages – future attendant care – future economic loss – out of pocket expenses – where primary judge did not make deduction for vicissitudes for future medical expenses or future attendant care – whether appropriate to account for respondent’s pre-existing conditions when awarding future out of pocket expenses and costs of future attendant care NEGLIGENCE – damages – non-economic loss – s 151G Workers Compensation Act 1987 (NSW) – whether primary judge was required to determine extent to which respondent would have developed pain and disability due to underlying conditions COSTS – party/party – bases of quantification – indemnity basis – where offer purported to be made pursuant to UCPR r 20.26 – whether offer complied with requirements of r 20.26 – whether primary judge erred in ordering indemnity costs in reliance on offer
Legislation Cited:	Civil Procedure Act2005 (NSW), s 98 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.14 Workers Compensation Act 1987 (NSW), s 151G, Sch 6 Pt 18 cl 3(1) Workers Compensation Legislation Amendment Act 2001 (NSW) Workers Compensation Legislation Further Amendment Act 2001 (NSW), Schs 1, 2, 3, 8
Cases Cited:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20 Bostik Australia Pty Ltd v Liddiard(No 2) [2009] NSWCA 304 Calderbank v Calderbank [1976] Fam 93 Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 Duffin v Mount Arthur Coal Pty Ltd [2020] NSWSC 229 Duffin v Mount Arthur Coal Pty Ltd (No 2) [2020] NSWSC 790 Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports 81-731 James v…