Quantum in the coal minesApr 2021 | Insurance
Appealing on quantum, was it worth the battle? Perhaps not save for the costs orders in the case of Mount Arthur Coal Pty Ltd v Duffin1.
Mount Arthur Coal (Mount Arthur) appealed with only minor success from the trial judge’s decision to award Ms Duffin almost $2.5 million in damages. In addition, the Court overturned an indemnity costs order in circumstances where the Offer of Compromise giving rise to the costs order did not comply with the Rules.
In the course of her employment with Mount Arthur, Ms Duffin suffered injuries on 6 March 2013 when a grader she was driving struck a lamination (defect) in a road forming part of a coal mine. The accident occurred at nighttime. Her headlights were on and the surface of the road was wet due to rainfall in the preceding days. Ms Duffin was travelling approximately 20km per hour and had steered the grader to the side of the road and twisted in her seat to look for larger vehicles approaching behind, as she was trained to do.
Her injuries were significant and at first instance she was awarded damages totaling $2,494,386.40 as against Mount Arthur.
Mount Arthur did not challenge the finding on liability. The Appeal related to whether:
- a finding of contributory negligence should have been made;
- the awards for out-of-pocket expenses and future commercial care should have been discounted further given Ms Duffin’s pre-existing degenerative spinal and hip conditions would have precluded her from working in her pre-accident role for more than 10 years;
- the trial judge failed to give adequate consideration to the impact of Ms Duffin’s pre-existing conditions on her quality of life when determining non-economic loss; and
- indemnity costs ought to have been awarded based on the service of an Offer of Compromise.
Payne JA (Meagher and Gleeson JJA agreeing) allowed the Appeal in part.
Mount Arthur failed to establish that Ms Duffin was contributorily negligent on the balance of probabilities. There was no evidence that by exercising reasonable care Ms Duffin could or should have been aware of the lamination in the road. The accident did not occur by reason of inadvertence, inattention or misjudgment. This was clear as other heavy machinery operators at the mine on the same night also failed to see the lamination on the road.
Out of pocket expenses
The award for future out of pocket expenses was reduced by $6,495.30. This was to give effect to the primary judge’s finding that ‘it was more likely than not’ that in the future, Ms Duffin’s pre-existing conditions would have caused ‘half’ of her medical consultations. Applying this principle, only half the award which was made for future GP consultations should have been made.
While Mount Arthur submitted that Ms Duffin’s need for commercial care would be impacted by her pre-existing condition/s, no evidence of the actual impact was adduced. The Court of Appeal would not infer that there was an impact absent medical evidence.
Contrary to Mount Arthur’s submissions, the Court of Appeal found that the trial judge had carefully considered the available evidence relating to the impact this incident had on Ms Duffin’s quality of life. The challenge to Ms Duffin’s non-economic loss award was unsuccessful.
The Offer of Compromise
UCPR 20.26 provides that an offer must identify, amongst other things, the ‘proposed orders for disposal of the claim’.
The Court of Appeal held there was no offer made under Rule 20.26 because the offer failed to identify the order the Court would be asked to make if the offer had been accepted. The award of indemnity costs was set aside as a result. The defendant was subsequently ordered to pay the plaintiff’s costs on an ordinary basis.
Costs of the Appeal
Mount Arthur was ordered to pay 90% of the Ms Duffin’s costs of the appeal.
Appeals on quantum are very difficult to win. This case highlights that prospects of success are limited unless:
- there is a clear error or inconsistency between the evidence accepted by the trial judge and the findings made; and
- submissions as to the impact of pre-existing conditions or other factors impacting the assessment of damages for future losses are supported by expert evidence.
Care should be taken when determining which grounds of appeal are to be pursued. Costs are being awarded on a proportionate basis. In this case, given the appeal was largely unsuccessful, Mount Arthur was penalised on costs by being obliged to pay 90% of Ms Duffin’s costs.
This acts to discourage parties from bringing an appeal on every possible ground.
Offer of Compromise
When it comes to offers of compromise, the courts are ‘sticklers’ for the rules. Offers need to be carefully and thoroughly constructed to ensure they have the desired effect. In this case, Ms Duffin had omitted setting out the orders to be made in the event the offer was accepted. This error cost Ms Duffin indemnity costs.
1  NSWCA 49.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
Special thanks for the contribution of Rebecca Woodrow, Research Law Clerk.