Mount Arthur Coal Pty Ltd v Duffin

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.