June 2021

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Coal mine’s appeal rejected


by Resolve Editor Kate Tilley


A Hunter Valley coal mine’s bid to have a grader driver found 50% liable for injuries she sustained when the grader hit a road “lamination” at night has failed. 

Mt Arthur Coal Pty Ltd (MAC) employee Gemma Anne Duffin was injured on 6 March 2013 when the grader struck the “lamination” on a wet road surface.

Trial judge Associate Justice Joanne Harrison found MAC liable in negligence and awarded damages of $2,494,386.40. On appeal, that amount was reduced by only $6,495.30 after a recalculation of future out-of-pocket expenses.

When the accident occurred, the headlights on Ms Duffin’s grader were on and she was travelling about 20km/hr. The surface of the road was wet because of rainfall in the preceding days. She had steered the grader to the left-hand side of the road and twisted in her seat to look over her right shoulder for larger vehicles approaching from behind, as she was trained to do.

The trial was told the accident dramatically changed Ms Duffin’s life because she now had significant back, right hip and leg pain and “substantial psychological trauma” that “affects her ability to perform the entire range of pre-accident activities of daily living”.

The principal issues on appeal were:

1. Whether AJ Harrison erred in finding Ms Duffin was not guilty of contributory negligence.

2. Whether AJ Harrison erred in assessing damages for future out-of-pocket expenses and future commercial care, after finding Ms Duffin suffered from pre-existing degenerative spinal and hip conditions which would have allowed her to work in her current position in the mining industry for only another 10 years.

3. Whether AJ Harrison erred in assessing damages for non-economic loss under  the Workers Compensation Act 1987 (NSW) at 45% of a most extreme case.

4. Whether AJ Harrison erred in finding Ms Duffin had made an offer of compromise within the terms of the Uniform Civil Procedure Rules 2005 (NSW) and therefore awarding costs on an indemnity basis.

Appeal Court Justice Payne, with whom Justices Meagher and Gleeson agreed, found MAC had failed to establish contributory negligence 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. Justice Payne said AJ Harrison found no inadvertence, inattention or misjudgement by Ms Duffin.

MAC’s own incident report noted that other operators of heavy machinery at the mine on the same night also “failed to notice the hole in the road and therefore the hazard remained”.

The Appeal Court reject MAC’s submission that Ms Duffin was not keeping a proper lookout and that any defect in the roadway should have been “obvious”.

Justice Payne reduced the award of $157,773.24 for future out-of-pocket expenses by $6,495.30 because AJ Harrison had found it was more likely than not that, in the future, half of Ms Duffin’s medical consultations would have been incurred due to her pre-existing conditions.

The Appeal Court found no error in AJ Harrison’s assessment under the Workers Compensation Act 1987, but found Ms Duffin made no valid compromise “offer” in accordance with the rules so it set aside the award of indemnity costs.

To reflect the relative success of the parties the Appeal Court ordered MAC to pay 90% of Ms Duffin’s appeal costs.

 

Mount Arthur Coal Pty Ltd v Duffin [2021] NSWCA 49 (30 March 2021)

Duffin v Mount Arthur Coal Pty Ltd (No 2) [2020] NSWSC 790 (23 June 2020)

Duffin v Mount Arthur Coal Pty Ltd [2020] NSWSC 229 (16 March 2020)

Read Clayton Utz case notes here.

 
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