Mount Arthur Coal Pty Ltd v Duffin

Court of Appeal (NSW)|2021-02-08|Before: Meagher JA, Gleeson JA, Payne JA

Solicitors: HWL Ebsworth Lawyers (Appellant) Morgan English Commercial Lawyers (Respondent) File Number(s): 2020/164192 Publication restriction: Nil. Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 229; [2020] NSWSC 790 Date of Decision: 16 March 2020 Before: Harrison AsJ File Number(s): 2016/70111

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] Ms Duffin was employed by Mount Arthur Coal Pty Ltd (Mount Arthur) to work at the Mount Arthur coal mine. On the night of 6 March 2013, she suffered injuries when a grader she was driving struck a lamination in a road which was part of the mine. At the time of the accident it was pitch black. The headlights on Ms Duffin's grader were on. The surface of the road was wet as a result of rainfall in the preceding several days. At the time of the accident, Ms Duffin was travelling at approximately 20 kilometres per hour. 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 primary judge found that Mount Arthur was liable in negligence and awarded damages of $2,494,386.40. Mount Arthur did not challenge the primary judge's finding of liability. The principal issues on appeal were:

Whether the primary judge erred in finding that Ms Duffin was not guilty of contributory negligence;
Whether the primary judge erred in the assessment of damages for future out of pocket expenses and future commercial care, after finding that 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 a further 10 years;
Whether the primary judge erred in assessing damages for non-economic loss under s 151G of the Workers Compensation Act 1987 (NSW) (as in force before the 2001 amendments) at 45% of a most extreme case; and
Whether the primary judge erred in finding that Ms Duffin made an offer of compromise within the terms of r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) and awarding costs on an indemnity basis. The Court held (Payne JA, Meagher and Gleeson JJA agreeing), allowing the appeal in part:
Mount Arthur 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. This was not a case where the primary judge found that the accident occurred by reason of inadvertence, inattention or misjudgement. Other operators of heavy machinery at the mine on the night in question also failed to see the lamination in the road: [1] (Meagher JA); [2] (Gleeson JA); [25], [32]-[33] (Payne JA).
The award of $157,773.24 for future out of pocket expenses should be reduced by $6,495.30 to give effect to the primary judge's finding that 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: [1] (Meagher JA); [2] (Gleeson JA); [45] (Payne JA). Mount Arthur otherwise failed to demonstrate that a possible consequence of Ms Duffin's pre-existing conditions was that she might in the future incur any of the expenses in any event, having failed to lead any evidence permitting the effects of the previous conditions suffered by Ms Duffin to be "disentangled" from the effects of the injury for which Mount Arthur was responsible: [1] (Meagher JA); [2] (Gleeson JA); [42]-[46]; [56] (Payne JA). Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, applied. There was no evidence that a possible consequence of Ms Duffin's pre-existing conditions was that she might in the future incur expenses for future commercial care in any event: [1] (Meagher JA); [2] (Gleeson JA); [64] (Payne JA). Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, applied.
No error was shown in the primary judge's assessment under s 151G of the Workers Compensation Act 1987 (NSW): [1] (Meagher JA); [2] (Gleeson JA); [74] (Payne JA).
There was no "offer" made under UCPR r 20.26 capable of engaging UCPR r 42.14(2). The offer made by Ms Duffin did not comply with UCPR r 20.26 because it failed to identify the order the Court would be asked to make if the offer had been accepted. The award of indemnity costs should be set aside: [1] (Meagher JA), [2] (Gleeson JA); [78], [80], [83] (Payne JA) Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391, distinguished. To reflect the relative success of the parties on the severable issues, Mount Arthur should pay 90% of Ms Duffin's costs of the appeal: [1] (Meagher JA); [2] (Gleeson JA); [88] (Payne JA). Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22; Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304, applied.

Judgment

MEAGHER JA: I agree with Payne JA.
GLEESON JA: I agree with Payne JA.
PAYNE JA: On 16 March 2020, following a six day trial, the primary judge, Harrison AsJ, found that the appellant, Mount Arthur Coal Pty Ltd (Mount Arthur), was responsible in negligence for injuries suffered on 6 March 2013 by the respondent, Ms Duffin, when a grader she was driving struck a lamination in a road which was part of the mine for which Mount Arthur was responsible: Duffin v Mount Arthur Coal Pty Ltd [2020] NSWSC 229. Damages of $2,494,386.40 were subsequently awarded by orders made on 20 May 2020.
Mount Arthur no longer contests that finding of liability. The issues on this appeal are confined to a challenge about the primary judge's findings about contributory negligence and aspects of her Honour's findings about damages. There are also two grounds of appeal challenging the subsequent award of indemnity costs by the primary judge in Duffin v Mount Arthur Coal Pty Ltd (No 2) [2020] NSWSC 790.

Relevant facts

Ms Duffin was employed by Mount Arthur to work at the Mount Arthur coal mine. On 6 March 2013, she was rostered to work the night shift driving a grader within the mine property. Her shift commenced at 6:30pm and was scheduled to finish at 6:40am. At around 8:00pm, Ms Duffin suffered injuries when the grader she was driving along Lambs Lane hit a "lamination". On the appeal, Senior Counsel for Mount Arthur explained that a lamination in industry parlance means "any abnormality on the road surface". By reason of the grader hitting the lamination, Ms Duffin was thrown around in her seat and suffered physical and resultant psychological injuries.
At the time of the accident it was pitch black. There was no lighting in the area. The surface of the road was wet as a result of rainfall in the preceding several days. The headlights on Ms Duffin's grader were on. She was not using the grader's work lights, which illuminate under the grader, because she had been instructed to use headlights when driving within the mine pit. Ms Duffin and other employees of Mount Arthur using the area at that time were not aware of the lamination.
Prior to the accident, Ms Duffin had driven along Lambs Lane for approximately three kilometres and approached an intersection with a road known as Red Rock Ramp. She was driving at approximately 50 kilometres per hour. Ms Duffin had been trained by her employer to move the grader to the left and to give way to all larger vehicles when approaching intersections of roads within the coal mine. Under the hierarchy of vehicles that operate within the mine, a grader would be required to give way to all other vehicles except "light vehicles", which are four-wheel drive vehicles used for transporting personnel and small pieces of equipment around the mine.
As Ms Duffin approached the intersection, she steered the grader to the left-hand side of Lambs Lane. As she drew closer to the intersection, she decreased speed so that she was travelling at approximately 20 kilometres per hour. On the left-hand edge of Lambs Lane was a "windrow" (a mound of dirt). The presence of the windrow prevented her from moving too far to the left.
The roads within the pit were unsealed and topped by a smooth dirt surface. Ms Duffin expected to find a flat surface, and not a pile of dirt, on the left-hand edge of Lambs Lane. Ms Duffin knew that Red Rock Ramp could be busy with large trucks transporting coal or dirt to the combustion dump situated to her right. In order to see if it was safe to enter Red Rock Ramp, she twisted in her seat to look over her right shoulder for larger vehicles approaching from behind.
The critical issue at the trial was whether the grader hit the lamination in the road or the "windrow" on the side of the road. No challenge to the primary judge's finding that Ms Duffin hit the lamination in the road was advanced on the appeal. The only issue on appeal concerning liability was her Honour's rejection of the appellant's claim of contributory negligence.
Ms Duffin was 40 years old at the time of the accident. The primary judge accepted that she was in pain and suffering by reason of the injury she sustained in the accident. Prior to the accident, Ms Duffin had led a full and enjoyable life. She had no restrictions upon her ability to work in her demanding job while caring for her two teenage children. She was able to maintain her home and garden. She experienced no psychological impairment of function or capacity, other than for a brief period after her husband's death in 2008. She enjoyed her work at the mine and the company of her co-workers.
The primary judge found that the accident dramatically changed Ms Duffin's life, which is marked by significant back and right hip and leg pain. She has also experienced substantial psychological trauma, which affects her ability to perform the entire range of pre-accident activities of daily living. She walks with a limp, which varies in severity. From time to time she uses a walking stick. On bad days, she stays in bed due to her physical and psychiatric injuries. Ms Duffin's life is now somewhat isolated, although the primary judge found that she had exaggerated her disability to some extent and that she is able from time to time to go out and do her shopping, socialise over lunch and occasionally engage with friends in the evenings.
The primary judge also found that Ms Duffin suffered from pre-existing injuries to her spine and hip. Her Honour found that had Ms Duffin not suffered her injuries to her back and right hip in the accident, in light of her pre-existing degenerative spinal and hip conditions it was likely that she would have suffered a slow deterioration of spondylosis and hip arthritis. The combination of these conditions would have allowed her to work in her current job in the mining industry for only a further 10 years. The primary judge accepted that Ms Duffin would have continued to work as a production employee in the mining industry, earning the same salary plus salary increases, until 2029 had she not suffered her physical injuries in the accident. After that 10-year period, when Ms Duffin attained the age of 57, she would have retained some residual earning capacity. She most likely would have had a decreased earning capacity until aged 67 and would have worked two or three days per week, for 12 hours in total, in a role such as sales or customer service, where she would have been able to sit and stand when she felt uncomfortable. The primary judge accepted that from the date of the accident, Ms Duffin had no residual earning capacity, with the exception of some very limited working capacity from 26 March 2013 to 28 March 2015.
The primary judge assessed Ms Duffin's non-economic loss pursuant to s 151G of the Workers Compensation Act 1987 (NSW) (as in force before the 2001 amendments) at 45% of a most extreme case. [1] In arriving at that assessment, her Honour took into account Ms Duffin's pre-existing osteoarthritis in the right hip and degenerative changes in her lumbar spine prior to the accident. Her Honour noted that, on any view, Ms Duffin was no longer capable of working as a production employee at the mine for a period exceeding 10 years.
No challenge was made on the appeal to her Honour's award of damages addressing the following topics: 1. past economic loss; 2. future economic loss; 3. Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 damages; 4. past and future loss of superannuation; 5. past out of pocket expenses; and 6. past domestic care.
Mount Arthur sought only to dispute the primary judge's findings on damages addressing the topics of: 1. future out of pocket expenses; 2. future domestic care; and 3. the percentage assessed for non-economic loss pursuant to s 151G of the Workers Compensation Act.

Issues on appeal

Mount Arthur relied upon four grounds of appeal. It submitted that the primary judge erred in: 1. failing to find Ms Duffin guilty of contributory negligence (ground 1); 2. failing to reduce the award for future out of pocket expenses for vicissitudes after finding that Ms Duffin's pre-existing medical conditions of a degenerative back, osteoarthritis in both hips, obesity and bursitis: 1. would account for 50% of her future medical consultations; and 2. would have caused her to become incapacitated for her position in the mining industry in 10 years (ground 2); 1. failing to reduce the award for future care for vicissitudes after finding that Ms Duffin's pre-existing medical conditions of a degenerative back, osteoarthritis in both hips, obesity and bursitis: 1. would account for 50% of her future medical consultations; and 2. would have caused her to become incapacitated for her position in the mining industry in 10 years (ground 3); and 1. failing to have regard to the following when awarding Ms Duffin damages pursuant to s 151G of the Workers Compensation Act: 1. Ms Duffin's pre-existing medical conditions of a degenerative back, osteoarthritis in both hips, obesity and bursitis: 1. would account for 50% of her future medical consultations; and 2. would have caused her to become incapacitated for her position in the mining industry in 10 years; and 1. the finding that Ms Duffin exaggerated her disability (ground 4).
Mount Arthur also raised two grounds of appeal in relation to the costs judgment. It submitted that the primary judge erred in: 1. finding that an offer of compromise dated 30 August 2018 was an offer of compromise within the terms of Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 20.26 (ground 1 of the costs appeal); and 2. ordering costs on an indemnity basis in reliance upon Ms Duffin's compliance with the terms of UCPR r 20.26 (ground 2 of the costs appeal).

Ground 1 of the appeal - Contributory negligence

The primary judge found that Ms Duffin was not guilty of contributory negligence. I have set out the facts concerning the accident at [5]-[9] above. None of those facts were challenged by Mount Arthur on appeal. At [131], her Honour concluded: "[131] The plaintiff was driving slowly as she approached the intersection. She followed company procedures. At the time of the accident, the road was wet and its surface had been affected by rain in the proceeding several days. It was dark, as there was no illumination except for the headlights on the CAT 24. Because of the poor visibility, both she and other plant operators using the area had failed to notice the hole in the road. In my view, the plaintiff bears no culpability for the accident, as she did not depart from the standard of care of a reasonable person. As such, I do not apportion any contributory negligence."
Mount Arthur submitted that the following factual matters demonstrated a lack of reasonable care on Ms Duffin's part and make a finding of contributory negligence "irresistible": 1. Ms Duffin was aware that following rain on the roads there would be irregularities such as potholes; 2. in driving a grader after a rain event, Ms Duffin accepted that she would need to look out for irregularities and drive according to the prevailing road conditions, including corrugations on the roadway and laminations; 3. Ms Duffin was aware that she had the overall responsibility to ensure the vehicle was driven in a safe manner; and 4. the lamination must have been significant and "there to be seen" because it caused Ms Duffin to be jolted in her seat five times.
Mount Arthur submitted that in those circumstances, Ms Duffin was not keeping a proper lookout and that any defect in the roadway would have been "obvious". Mount Arthur further submitted that the circumstances of the accident were not consistent with a finding of mere inadvertence, inattention or misjudgement: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20 at [15] (Mason, Wilson and Dawson JJ); cf Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 at [88] (Kirby J). It was submitted that the duty owed by a driver of a motor vehicle is a high one: Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 (Emmett JA, with whom Ward JA and Gleeson JA agreed).
Mount Arthur submitted that given the respective breaches of duty, the appropriate contribution between the appellant and the respondent was 50%.
The central plank of Ms Duffin's submissions about contributory negligence was that there was no evidence (and it was not even put to her) that she had not been keeping a proper lookout, had failed to take reasonable steps to protect her own safety or that she was guilty of contributory negligence.
Ms Duffin submitted that a primary judge's finding (and apportionment) of contributory negligence is a discretionary exercise and is one that an appellate court should be reluctant to disturb: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492.

Consideration

Mount Arthur bore the onus of establishing contributory negligence: Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [18] (McHugh J); [113]-[114] (Kirby J); Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports 81-731. Mount Arthur failed to establish contributory negligence on the balance of probabilities.
The primary judge rejected Mount Arthur's pleaded claim of contributory negligence. None of the critical facts found by the primary judge in reaching that conclusion were challenged on the appeal. That is, there was no challenge to her Honour's findings that: 1. prior to the accident Ms Duffin drove along Lambs Lane for approximately three kilometres and approached an intersection with a road known as Red Rock Ramp. She was driving at approximately 50 kilometres per hour; 2. as Ms Duffin approached the intersection with Red Rock Ramp she moved the grader to the left-hand side of Lambs Lane and decreased speed to 20 kilometres per hour as she had been trained by her employer to do; 3. in order to see if it was safe to enter Red Rock Ramp, she twisted in her seat to look over her right shoulder for larger vehicles approaching from behind.
Critically, her Honour found that Ms Duffin and other employees of Mount Arthur using the area at that time did not see and were not aware of the lamination.
At the trial, Mount Arthur made no serious attempt to prove that by the exercise of reasonable care Ms Duffin could or should have become aware of the lamination. The cross-examination of Ms Duffin relied upon by Mount Arthur did not establish the basis for a submission that there was a failure to take reasonable care. The high point of that cross-examination was the following exchange: "Q. Is one of the effects that the rain had on the roads that there would be, as one might see on country dirt roads after rain, potholes and other irregularities? A. Yes, there would be irregularities somewhere, yes. … Q. What you've described meant that you knew that before you - if you were asked to drive a grader after a rain event, you knew you would have to drive according to the prevailing road conditions, didn't you? A. We always look out for any irregularities, or anything like that. Yes."
This evidence was insufficient to establish any failure to exercise reasonable care.
The finding by the primary judge that nobody saw the lamination in the road that Ms Duffin struck was amply supported by the contemporaneous evidence. An important document was the event report prepared for Mount Arthur by an investigating supervisor and checked by an investigation auditor which relevantly provided: "Mt Arthur Coal - NEC Confidential Event Report: MACEV13030042 … Brief Description: Operator stated that whilst crossing the Lambs Lance/CD3 Dump Intersection in Grader 086, the Grader has hit a lamination in the road causing pain in the lower Left Back of the operator that intensified after 15 minutes. Immediate Actions Taken: Operator was taken to First Aid for RICE Treatment for remainder of shift. Grader was called to repair the road where the injury occurred. … INVESTIGATION FINDINGS Investigating Supervisor: Seabrook, David Investigation Auditor: Botha, Frank … Analysis Process: Absent or Failed Defences DF10:DF10 Hazard Identification Response: Absent/Failed Details: As it was night time, the operator failed to see the hole in the road and therefore drove through it. DF98:DF98 Other Absent/Failed Defence Response: Absent/Failed Details: Other operators using the area also failed to notice the hole in the road and therefore the hazard remained. Individual/Team Actions IT12:IT12 Hazard Recognition/Perception Response: Error or Violation Details: The operator failed to see the hazard in the roadway. IT98:IT98 Other Individual/Team Action Response: Error or Violation Details: Other users in the area also failed to note/have the hazard repaired. Task/Environmental Conditions TW05:TW05 Abnormal Operational Situation or Condition Response: Contributor Details: The pit in general had just recovered from extensive wet weather. Some roads were still somewhat a little weather affected. TW23:TW23 Surface Gradient/Condition Response: Contributor Details: The roads were still somewhat weather effected after heavy rainfall."
That document provided a firm foundation for the primary judge's finding that other employees of Mount Arthur had been using the area where the accident occurred prior to the incident and that those operators had also "failed to notice the hole in the road and therefore the hazard remained."
There was a critical absence of evidence supporting Mount Arthur's claim of contributory negligence. Such evidence as there was tended strongly against a finding of contributory negligence. Mount Arthur's own records confirm that it was not only Ms Duffin, but other operators of heavy machinery at the Mount Arthur coal mine on the night in question who also failed to see the lamination in the road on that night.
I reject Mount Arthur's submission that it should be concluded that Ms Duffin was not keeping a proper lookout and that any defect in the roadway should have been "obvious". This was not a case where the primary judge found that the accident occurred by reason of inadvertence, inattention or misjudgement. Whilst it may be accepted that the duty of care owed by a driver of a motor vehicle such as was engaged in this case is a high one, there was no evidence that by exercising reasonable care Ms Duffin could or should have been aware of the lamination in the road.
The primary judge was correct to conclude that there was no contributory negligence proven by Mount Arthur. Ground 1 should be dismissed.

Ground 2 of the appeal - Future out of pocket expenses

The assessment of future out of pocket expenses included amounts representing general practitioner, psychologist and psychiatrist fees, medication, annual services, future equipment, future occupational therapy expenses and hydrotherapy. It also included an allowance of $4,000 for the possibility that Ms Duffin may require a hip replacement earlier, as the accident had made a material contribution to the acceleration of her hip condition.
The primary judge approached this topic having regard to the following principles: "Future out of pocket expenses [308] The parties agree that the combination of the evidence from the expert medical orthopaedic conclave (Ex 1) and the evidence from the expert occupational therapy conclave (Exs D and E) have resulted in a significant amount of agreement in respect of the plaintiff's future out of pocket expenses. That said, there remain several matters of contention. These aspects will be separately addressed. [309] The defendant submitted that it is appropriate to increase vicissitudes when awarding future out of pocket expenses to take into account the plaintiff's pre-existing conditions, including the advanced degeneration in her back, osteoarthritis in both hips, obesity and bursitis. Each of these conditions is capable of giving rise to the need for conservative medical treatment, and should be reflected by a greater deduction for vicissitudes. The defendant submitted that a reduction of this kind is consistent with the need to discount damages in circumstances where a non-tortious event contributes to the loss. [310] The defendant submitted that the future out of pocket expenses should account for conservative care for a back disability by allowing $1,000 per annum for the plaintiff's remaining years, and reducing this sum by 50% for vicissitudes. This sum includes an annual amount of $275 for equipment required as agreed by the occupational therapists. [311] I do not agree with the defendant's submissions, as prior to the accident the plaintiff did not regularly consult medical practitioners for problems due to her back. In my view, it is more likely than not that in the future, half of the plaintiff's medical consultations would have been incurred due to her degenerative back, osteoarthritis in both hips, obesity and bursitis. [312] In Sharman, Gibbs and Stephen JJ commented on the applicability of deductions for the vicissitudes of life from future medical expenses as follows at 587: 'Once a probable life expectancy is determined, these enter not at all into the assessment of future hospital expenses or the conventional amount of shortening life expectancy, but are significant in the case of loss of earning capacity.' [313] I therefore do not make any deduction for vicissitudes for future medical expenses. [314] The defendant also does not make any allowance for the plaintiff's future hip replacement, which I will refer to later in this judgment."

Consideration

After describing, in general terms, the findings her Honour made, the primary judge left it to the parties to agree upon the amounts comprising three of the components of the award ultimately made for future out of pocket expenses: future occupational therapy expenses, past care and future care. Although the appeal books and the parties' submissions provided no real assistance in determining those components of the award for future out of pocket expenses, at the hearing of the appeal documents were handed up (marked MFI 1 and MFI 2) [2] from which, it was submitted, the component parts of the award may be discerned: "a. GP Consultation [Jt. 315] $12.990.60 b. Psychologist [Jt. 316] $84.483.00 c. Medication [Jt. 321] $15,923.25 d. Physiotherapy [Jt. 322] & Hydrotherapy [Jt. 337] $21.686.85 e. Further hip surgery [Jt. 326] $4,000.00 f. Pain program [Jt. 336] $9,414.00 g. Occupational Therapy [Jt. 336] $1,053.42 h. Hydrotherapy [Jt. 337] $8,749.04 i. Future equipment [Jt. 335]: $1,206.70 / 52 = 23.21 x 909.9 $21.114.93 Total: $157,773.24" [3]
As can be seen from the transcript, both parties proceeded on the basis that the amounts set out at (a)-(i) above totalled $157,773.24 and the primary judge awarded Ms Duffin damages for future out of pocket expenses in that amount: "McCULLOCH: I'm indebted to your Honour. In para 9 of this document there is a breakdown of the total of the total of $157,773. Our complaint by way of submission is that these amounts, this is the total of $157,773.24, ought to have been reduced by 50% to reflect the undoubted course of the plaintiff's pre-existing injury."
The amounts set out at (a)-(i) of MFI 2 (Ms Duffin's calculations which Mount Arthur specifically agreed with on this point in MFI 1) above do not actually add up to $157,773.24. The discrepancy was not explained by either party. Given that the parties chose not to address this calculation difficulty I will proceed, as the parties did, on the basis that MFI 2 accurately records the component parts of the primary judge's award of $157,773.24 for future out of pocket expenses.
Mount Arthur challenged all but item (e) (the award of $4,000 for future hip surgery). The essence of Mount Arthur's complaint was that in awarding future out of pocket expenses, her Honour had failed to take into account her findings about pre-existing injuries.
Mount Arthur submitted, and Ms Duffin did not disagree, that the references by the primary judge to vicissitudes and Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8 must be understood in the context of the decision being made at a time before the adoption of life tables to determine future life expectancy. A good deal of the confusion on this topic was introduced, both before the primary judge and in this Court in written submissions, by Mount Arthur. Those submissions failed adequately to distinguish between the "vicissitudes of life", addressed by the primary judge, and the separate question of the effect of the previous conditions suffered by Ms Duffin upon the award of damages. Mount Arthur referred to the latter by adopting, without elaboration, a confusing shorthand of "vicissitudes" to describe the deduction sought by reason of Ms Duffin's pre-existing injuries.
The real question was whether Mount Arthur had led any evidence sufficient to permit the effects of the previous conditions suffered by Ms Duffin to be "disentangled" from the effects of the injury for which Mount Arthur was responsible. That involved an analysis of the stream of High Court authority in Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 and Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.
Those authorities were addressed in by this Court in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, where Ipp JA (with whom Mason P relevantly agreed) explained the operation of the relevant principles thus: "[105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of 'disentanglement' discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities. [106] Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition. [107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation. … [109] Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p511)." (Emphasis in original.)
The problem for Mount Arthur in the present case was its failure to lead any evidence permitting any "disentanglement" in accordance with the principles identified in Watts v Rake, Purkess v Crittenden and Malec v Hutton to occur. This is a case where the evidence does not adequately establish the possible consequences of the pre-existing condition relevant to all but one of the component parts of the award of future out of pocket expenses.
The one exception relates to an adjustment for out of pocket expenses for future GP consultations. This is because of the finding at [311] of the primary judgment that it was more likely than not that in the future, half of the plaintiff's medical consultations would have been incurred due to her pre-existing conditions. Applying the relevant principles, only half of the award of $12,990.60 which was made for future GP consultations should have been made. The relevant award should have been for $6,495.30.
So far as the remaining components of the award of future out of pocket expenses are concerned, Mount Arthur failed to demonstrate that a possible consequence of Ms Duffin's pre-existing condition was that she might in the future incur any of the expenses awarded by the primary judge in any event. These may be addressed in turn.
The primary judge made an award of $84,483.00 for the costs of future consultations with a psychologist. Mount Arthur made no attempt to lead evidence from any witness, including the psychologists who gave evidence, that assuming the injury suffered in 2013 had not occurred, Ms Duffin might nevertheless have required psychological assistance by reason of her pre-existing conditions. To the contrary, two psychologists gave evidence jointly before the primary judge and that joint evidence did not address the fact or possible effect of her pre-existing spinal and hip conditions or the case which Mount Arthur now seeks to advance with respect to the claim for future medical treatment. The experts were asked: "4. From a vocational perspective, if the injury had not occurred, what do you consider would have been the plaintiff's most likely circumstances? Joint Opinion Had Ms Duffin's injury not occurred it is reasonable to predict that in the absence of health or other career-limiting factors, she would have maintained her job as a mining production employee over time. Had this role come to an end as a result of the downturn in the mining industry, she possessed the skills and experience to find alternative mining work or undertake other practical roles such as a truck driver or mobile plant operator as well as a range of practical roles in keeping with her past experience that were available in the local area. It is most likely that Ms Duffin would continue to be working as a mining operator in the mining industry."
No suggestion was made in that evidence (or in any other evidence at the trial) that by reason of her pre-existing conditions Ms Duffin might have needed the assistance of a psychologist if she had not suffered the workplace injury in 2013. The suggestion by Mount Arthur on appeal that the fact of Ms Duffin's pre-existing injuries might have led to a need for psychological assistance in the future was mere conjecture, not supported by the evidence.
The primary judge made an award of $15,923.25 for the costs of future medications. No suggestion was made in evidence that by reason of pre-existing conditions Ms Duffin might have needed some part of that medication in any event. Given the absence of evidence about this subject (including the nature and extent of any medication allegedly required) the evidence does not adequately establish the possible consequences of the pre-existing condition for Ms Duffin's medication requirements such that a reduction is warranted.
The primary judge made an award of $9,414.00 for participation in a pain program and $1,053.42 for occupational therapy. No suggestion was made in evidence that by reason of her pre-existing conditions Ms Duffin might have needed that pain program or occupational therapy in any event.
The primary judge made an award of $21,114.93 for the costs of equipment in the future. Mount Arthur made no attempt to lead evidence from any witness, including the occupational therapists who gave evidence, that assuming the injury suffered in 2013 had not occurred, Ms Duffin might nevertheless have required equipment in the future by reason of her pre-existing conditions. To the contrary, two occupational therapists gave evidence jointly before the primary judge and that joint evidence was inconsistent with the case Mount Arthur now seeks to advance. The experts were asked: "1. Based upon your examination of the plaintiff, do you believe the plaintiff has required domestic or personal assistance as a result of her back condition since 6 March 2013? 2. If so, are you able to agree upon the extent to which the plaintiff has required the following assistance in the past: (a) Personal care and assistance; (b) Domestic assistance including meal preparation, domestic cleaning, laundry, bed-making and any other specific requirements; (c) Yard and garden maintenance (again, describe the nature of the assistance required); (d) Car washing; (e) Shopping and grocery delivery; and (f) Transport. 3. Based upon your examination of the plaintiff, what are the plaintiff's future care needs by reason of her back condition?"
No suggestion was made in evidence that by reason of her pre-existing conditions Ms Duffin might have needed any of the assistance the subject of the occupational therapists' evidence in any event. Given the absence of evidence, in circumstances where expert occupational therapists were called and not asked about this subject, Mount Arthur failed to lead even a scintilla of evidence supporting the submission that some part of the award of costs of equipment in the future might have been incurred in any event by reason of Ms Duffin's pre-existing conditions.
As described in MFI 2, the primary judge made an award of $21,686.85 for physiotherapy and hydrotherapy and a separate award of $8,749.04, also described as being for hydrotherapy. The parties did not explain how it was that two separate awards for hydrotherapy were agreed to be made, beyond pointing out that the primary judge had addressed the topic of hydrotherapy twice in her judgment, at [322] [4] and [337]. [5] Mount Arthur did not complain about the primary judge addressing the issue twice, nor about the calculation of either amount. As Mount Arthur bore the onus to disentangle the extent to which Ms Duffin's pre-existing conditions were likely to have required hydrotherapy in any event, the failure to explain the reason for, or calculation of, the two separate awards is an issue for Mount Arthur.
I was, however, initially sympathetic to Mount Arthur's claim that in accordance with the principles in Watts v Rake, Purkess v Crittenden and Malec v Hutton, some adjustment of the award for hydrotherapy should have been made by the primary judge. Upon analysis, however, there was no sufficient evidence that assuming the injury suffered in 2013 had not occurred, Ms Duffin might nevertheless have needed that hydrotherapy the subject of this component of the award. The high point of the evidence in favour of an adjustment was that two orthopaedic surgeons gave the following evidence jointly: "9. What do you consider to be the Plaintiff's likely future treatment needs and the probable cost of such treatment? JOINT - She would need ongoing hydrotherapy, cost approximately $500.00 per year. Self managed physiotherapy and weight reduction, including bariatric surgery. 10. To what extent would the Plaintiff's future treatment needs have been required in any event in light of the pre-existing degenerative changes in the Plaintiff's spine? JOINT - With ideal medical management, she should have had planned hydrotherapy and weight reduction, and education in self physiotherapy."
The extent to which the matter was taken any further in evidence was limited. Dr Hopcroft explained that the suggested hydrotherapy was linked to the suggested need for weight loss and the need for domestic care. Mount Arthur did not demonstrate the possible consequences of the pre-existing condition for Ms Duffin's need for hydrotherapy, in the absence of the injury she suffered. It is possible, although not clarified in the evidence, that the "planned hydrotherapy" of $500 per year referred to in item 9 was the same "planned hydrotherapy" referred to in item 10. The time at which the "planned hydrotherapy" referred to in item 10 would have been required, in the absence of the injury suffered in 2013, was not explored in the evidence. I have concluded that the evidence on this topic was not such that a reasonable person could draw from it the inference that the possible consequences contended for by Mount Arthur existed.
Ground 2 of the appeal should be allowed, but only to a very limited extent being the discrete topic of GP visits addressed at [45] above. The award of $157,773.24 [6] should be reduced, but only by $6,495.30 to give effect to the finding of the primary judge at [311]. Mount Arthur otherwise failed adequately to establish the possible consequences of Ms Duffin's pre-existing conditions. A reasonable person could not draw the inference that the possible consequences contended for by Mount Arthur existed from the evidence led.

Ground 3 of the appeal - Future domestic care

There was no dispute on the appeal that Ms Duffin requires future assistance of a commercial nature. The primary judge held at [397]: "[397] I have set out my findings in detail under the heading for past economic loss. The plaintiff's condition has not changed markedly since phase three of her past domestic care, and I rely on what I said in respect of that period. I take into account that the plaintiff's children are teenagers and capable of taking care of most of their domestic needs. I allow 1 hour for meal preparation, 3 hours for domestic cleaning and laundry, 3 hours for yard and garden maintenance, and fortnightly car washing and grocery delivery. The parties are to calculate this amount."
In respect of "phase three" of Ms Duffin's past domestic care referred to in this passage, her Honour said at [388]-[391]: "(3) Third phase - from 19 February 2015 to date of judgment … [388] On 19 February 2015, the plaintiff was certified unfit for work. On 9 May 2016, her employment was terminated. [389] During this period, the plaintiff's constant back pain started to radiate to the lower part of her back. As her back and right leg pain increased, her psychological condition has deteriorated. Dr Samson says that the plaintiff's diminished motivation, low energy and disturbed sleep has persisted at a level which undermines her ability to adequately participate in household and parenting duties. She has continued to require the support of family and friends. [390] The plaintiff has been capable of buying fresh fruit and vegetables if she uses a high trolley and packs bags lightly. She has been able to put them into her car without bending and transport them home. She may have to do a number of trips so that she avoids carrying heavy loads, or have certain items delivered. While the plaintiff's oven is at waist level, I accept that she has had difficulty with lifting heavy pots and pans containing food onto the cooktop and into the oven. [391] During this period, I am of the view that the plaintiff has required 8 hours of domestic assistance, which included preparing some meals and other services set out earlier, as well as 3 hours per week for yard and house maintenance. These equate to 11 hours of gratuitous domestic assistance per week. She also required fortnightly car washing and fortnightly grocery delivery. The parties are to calculate this amount."

Consideration

The parties agreed that the issue should be addressed by reference to the principles of assessing damages explained in Watts v Rake, Purkess v Crittenden and Malec v Hutton as applied in Seltsam v Ghaleb set out above at [43].
Mount Arthur submitted that the primary judge should have made an allowance of four hours per week of domestic assistance for 10 years, to which a further reduction of 25% should have been applied, by reason of Ms Duffin's pre-existing conditions. This was the submission made at trial. Ms Duffin's case at trial was that 12 hours of domestic assistance per week should be allowed, plus an award for fortnightly car washing and weekly grocery delivery. The primary judge awarded seven hours of domestic assistance per week, plus an award for fortnightly car washing and grocery delivery, which the parties agreed resulted in an award of $346,635.50. The primary judge recorded that in making the award she had taken into account a deduction which should be made having regard to Ms Duffin's pre-existing condition, although she did not quantify that deduction.
Mount Arthur has not established error by the primary judge in making this award. As I have said, two expert occupational therapists gave evidence. They were not asked to make any assumptions about the extent to which Ms Duffin may have been incapacitated by her pre-existing condition or asked any questions at all about that topic. As a result, there was not even a scintilla of evidence from which a reasonable person could draw the inference that the possible consequences contended for by Mount Arthur existed.
The two occupational therapists, Ms Sanja Zeman and Ms Anita Barbara, provided individual reports to the court. They were asked to confer and clarify any areas of discrepancy in relation to those reports. The relevant extracts of their joint conclave report provided: "Questions for Experts 1. Based upon your examination of the plaintiff, do you believe the plaintiff has required domestic or personal assistance as a result of her back condition since 6 March 2013? 2. If so, are you able to agree upon the extent to which the plaintiff has required the following assistance in the past: (a) Personal care and assistance; (b) Domestic assistance including meal preparation, domestic cleaning, laundry, bed-making and any other specific requirements; (c) Yard and garden maintenance (again, describe the nature of the assistance required); (d) Car washing; (e) Shopping and grocery delivery; and (f) Transport 3. Based upon your examination of the plaintiff, what are the plaintiff's future care needs by reason of her back condition? 1. BACKGROUND 1.1. Ms Sanja Zeman and Ms Anita Barbara were requested to confer and clarify areas of discrepancy in relation to the two Occupational Therapy Activities of Daily Living reports provided for the court. A teleconference was held on 13.05.2019. … 2. Q 1 Based upon your examination of the plaintiff, do you believe the plaintiff has required domestic or personal assistance as a result of her back condition since 6 March 2013? 2.1. Yes. Both experts agree that the plaintiff has required past assistance with activities of daily living since the incident of 06.03.[2013]. Ms Barbara assessed the plaintiff as requiring assistance for domestic and personal assistance while Ms Zeman assessed her as requiring domestic assistance only. 3. Q 2 If so, are you able to agree upon the extent to which the plaintiff has required the following assistance in the past: (a) Personal care and assistance; (b) Domestic assistance including meal preparation, domestic cleaning, laundry, bed-making and any other specific requirements; (c) Yard and garden maintenance (again, describe the nature of the assistance required); (d) Car washing; (e) Shopping and grocery delivery; and (f) Transport 3.1. The experts are unable to agree on the past care requirements of the plaintiff. … 4. Q 3 Based upon your examination of the plaintiff, what are the plaintiff's future care needs by reason of her back condition? 4.1. Both experts note that based on their original assessments of 2017, and giving regard to the contemporaneous medical opinions reviewed, their assessments of future care were not overly dissimilar. 4.2. Both experts note that the categories of future care were essentially the same, including domestic maintenance, external and heavy household maintenance, laundry, and shopping. 4.3. Personal care: 4.3.1. Both experts agree that the plaintiff has no requirement for personal care assistance in the future. 4.4. Meal preparation: 4.4.1. The experts are unable to agree on the need for assistance with meal preparation. 4.4.2. Ms Zeman notes that her assessment of the plaintiff was undertaken eight months after Ms Barbara's, and in that time frame the plaintiff had purchased and had installed an automatic dishwasher which she was using independently, and demonstrated the capacity to use; Furthermore, the plaintiff advised Ms Zeman that she had maintained the capacity to engage in all meal preparation tasks with pacing of the activity and postural variation. Ms Barbara maintains that the plaintiff outlined that she continued to receive significant gratuitous assistance from particularly her teenage daughter and mother for meal preparation. 4.4.3. Thus, although the experts are unable to agree on the needs for assistance in this regard, this may be related to improvement in function and environmental modifications in that time frame, or differences in the self-reporting of the plaintiff. 4.4.4. Ms Zeman further notes that on the basis of her assessment of the plaintiff's functional capacity, giving regard to the plaintiff's report of no change in her function following the subject incident to date, and the plaintiff's demonstrated capabilities in the surveillance footage reviewed, she does not have a requirement for future assistance with meal preparation. 4.5. Domestic cleaning: 4.5.1. Both experts agree that based on their original assessment, they both assessed the plaintiff as requiring 3 hours per week of assistance with domestic cleaning. 4.5.2. Ms Zeman however, considers that having reviewed the surveillance footage, the plaintiff's need for domestic assistance has altered given her demonstrated ability to perform both overhead reach and forward reach tasks, with an ongoing requirement for assistance with the heavier components of residential maintenance, including bathroom cleaning, vacuuming, spring cleaning and window cleaning at a rate of 1.5 hours per week. 4.5.3. Ms Barbara maintains that no aspects of the surveillance footage cause her to alter her view that the plaintiff's difficulty working at high and low levels and manual handling supports the need for domestic cleaning at a rate of 3 hours per week. 4.6. Laundry: 4.6.1. Both experts agree that based on their original assessment, they assessed the plaintiff as requiring 2 hours per week of assistance with laundry. 4.6.2. Ms Zeman however, considers that having reviewed the surveillance footage, the plaintiff's has no requirement for assistance with laundry, given her demonstrated ability to repeatedly reach into a vehicle, twist and turn in transfers, and reach overhead. Furthermore, Ms Zeman notes that the plaintiff does have a clothes dryer, and advised at the time of Ms Zeman's assessment that ordinarily the family make use of the clothes dryer for all laundry. 4.6.3. As such, Ms Zeman does not assess any requirement for future care relating to laundry. 4.6.4. Ms Barbara maintains that no aspects of the surveillance footage cause her to alter her view that the plaintiff's difficulty working at high and low levels and manual handling supports the need for assistance with heavier laundry (sheets, towels and includes bed-making. 4.7. Bed-making: 4.7.1. Ms Zeman opines that on the basis of her assessment alone, it was her opinion that the plaintiff had a requirement for assistance with change of bedlinen at a rate of 0.25 hours per week. Ms Barbara included this requirement in her laundry assistance assessment. 4.7.2. Ms Zeman however, considers that having reviewed the surveillance footage, the plaintiff's has no requirement for assistance with bedroom maintenance, given her demonstrated ability to repeatedly reach into a vehicle, twist and turn in transfers, and reach into a shopping trolley with no apparent difficulty. 4.8. Yard and garden maintenance: 4.8.1. Ms Barbara noted that her assessment of external and yard maintenance requirements is higher relating to the fact that the family used a wood fire, and the plaintiff advised her that she had historically undertaken all tasks associated with that i.e., chopping and carting wood, independently. 4.8.2. Ms Zeman has assessed assistance requirements at a rate of 2.48 (rounded up to 2.5) hours per week, including lawn maintenance, gardening, edging and access of firewood, noting that wood is only accessed seasonally, and lawn maintenance would be undertake on average over 19 occasions per annum, that representing fortnightly in summer months and monthly in winter months. 4.9. Car washing: 4.9.1. Both experts agree that the plaintiff has a reasonable and necessary requirement for assistance with car washing on a fortnightly basis, at commercial rates. 4.10. Shopping and grocery delivery 4.10.1. Both experts agree that based on their original assessments, the plaintiff was assessed as having a requirement for delivery of groceries, using internet shopping available to her and thereby limiting manual handling. 4.10.2. On the basis of surveillance footage reviewed Ms Zeman alters her opinion in this regard, noting that the plaintiff has demonstrated an ability to undertake grocery shopping independently. Ongoing pacing of task performance is recommended. 4.10.3. Ms Barbara notes that evidence from the surveillance footage that the plaintiff can undertake a very small grocery shop does not change her opinion that the plaintiff should benefit from weekly grocery delivery for a large grocery shop as this would be beyond the plaintiff's tolerances for manual handling and consistently reaching to high and low levels. 4.11. Transport 4.11.1. Both experts agree that the plaintiff has no requirement for assistance with transport."
The essential contest between these experts was that Ms Barbara, called by Ms Duffin, estimated that 12 hours of future assistance per week was required plus fortnightly car washing and a weekly grocery delivery fee, whilst Ms Zeman, called by Mount Arthur, had a much more optimistic estimate of Ms Duffin's future care needs at four hours per week plus fortnightly car washing, based largely on surveillance video footage which had been obtained. Neither expert was asked to address Ms Duffin's future care needs on the basis of any assumption about her pre-existing conditions.
Mount Arthur did not set out to prove at the trial any possible consequence of the pre-existing conditions upon the demonstrated need for Ms Duffin's future care. That is, the evidence did not adequately establish the possible consequences of Ms Duffin's pre-existing conditions. It was not possible to carry out the comparison and assessment required for the exercise Mount Arthur invited this Court to conduct. There was no evidence about the possible consequences of the pre-existing conditions upon the need for future commercial care. A reasonable person could not draw from the evidence the inference that the possible consequences contended for by Mount Arthur existed.
Ground 3 should be dismissed.

Ground 4 of the appeal - Non-economic loss (s 151G of the Workers Compensation Act)

The parties proceeded on the basis that s 151G of the Workers Compensation Act before the 2001 amendments applied: [7] 151G Damages for non-economic loss (1) (Repealed) (2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded. (3) The maximum amount which may be awarded for non-economic loss is $204,000, but the maximum amount may be awarded only in a most extreme case. (4) If the amount of non-economic loss is assessed to be $36,000 or less, no damages for non-economic loss are to be awarded. (5) If the amount of non-economic loss is assessed to be between $36,000 and $48,000, the amount of damages to be awarded for non-economic loss is as follows: Damages = [Amount so assessed - $36,000] x 4 (6) (Repealed) (7) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amounts of $204,000, $36,000 and $48,000 were adjustable amounts and were referred to in section 81 (1). However, section 80 (2) does not apply to the amounts of $36,000 and $48,000. (8) If an amount mentioned in this section: (a) is adjusted by the operation of Division 6 of Part 3, or (b) is adjusted by an amendment of this section, the damages awarded are to be assessed by reference to the amount in force at the date of injury.
The primary judge assessed Ms Duffin's non-economic loss at 45% of a most extreme case at [244]. In arriving at that assessment, her Honour specifically took into account Ms Duffin's pre-existing osteoarthritis in the right hip and degenerative changes in her lumbar spine prior to the accident. Her Honour noted that, on any view, Ms Duffin was no longer capable of working as a production employee at the mine for a period exceeding 10 years.

Consideration

While acknowledging that the assessment of Ms Duffin's non-economic loss involved discretionary considerations, Mount Arthur submitted that the primary judge failed to have regard in any significant or definable way to the extent to which Ms Duffin would have experienced pain, suffering and loss of amenities of life in any event by reason of her pre-existing conditions.
I am unable to agree.
In making the assessment required by s 151G of the Workers Compensation Act, the primary judge specifically took into account: 1. Ms Duffin's age at the time of the accident; 2. her pre-existing conditions, namely, osteoarthritis in the right hip (which was asymptomatic prior to the accident, but would have resulted in a hip replacement at some stage because of its progressive nature) and degenerative changes in her lumbar spine; 3. her significant weight loss in the preceding few years; 4. her "full and enjoyable life" prior to the accident. Ms Duffin had no restrictions upon her ability to work in her demanding job while caring for her two teenage children. She was able to maintain her home and garden. She experienced no psychological impairment of function or capacity to undertake the usual range of work, social and domestic activities, outside of a brief period after her husband's death in 2008; and 5. the fact that Ms Duffin was no longer capable of working as a production employee at the mine for a period exceeding 10 years.
Her Honour concluded that the accident had "dramatically changed" Ms Duffin's life, which is now marked by significant back and right hip/leg pain. Ms Duffin walks with a limp, which varies in severity. She occasionally uses a walking stick. On bad days, she stays in bed due to her physical and psychiatric injuries. The primary judge also found that substantial psychological trauma suffered by Ms Duffin affected her ability to perform the entire range of pre-accident activities of daily living.
These conclusions for the purposes of s 151G of the Workers Compensation Act were reached after a lengthy survey of the medical evidence. The primary judge referred in terms to the conclusions drawn in that evidence in addressing the issue posed by s 151G of the Workers Compensation Act. Her Honour was not required to do any more.
In oral submissions, the appellant sought to expand the complaint made in the notice of appeal as one encompassing an absence of reasons. That complaint should be rejected. First, the absence of reasons was not part of the notice of appeal and no application was made to amend the grounds of appeal. The submission should be rejected for that reason alone. Secondly, even if the complaint made by Mount Arthur about the absence of reasons were permitted to proceed, in circumstances where the primary judge set out in terms the matters she took into account by reference to findings made about the ways in which the accident had "dramatically changed" Ms Duffin's life, which are not challenged, the complaint about an absence of reasons is without substance.
No error has been shown in the primary judge's assessment under s 151G of the Workers Compensation Act. Ground 4 of the appeal should be dismissed.

Grounds 1 and 2 of the costs appeal

On 30 August 2018, Ms Duffin served on Mount Arthur an Offer of Compromise stating the following: "OFFER 1. Pursuant to Rule 20.26 of the Uniform Civil Procedure Rules the Plaintiff makes an offer of compromise in the matter in the sum of $1,365,000.00 plus costs as agreed or assessed. 2. This offer remains open for a period of 28 days."
Rule 20.26 of the UCPR provides, relevantly: 20.26 Making of offer (cf SCR Part 22, rules 1A, 2, 3 and 4; DCR Part 19A, rules 1, 2, 2A, 3 and 4; LCR Part 17A, rules 2 and 5) (1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms. (2) An offer under this rule: (a) must identify: (i) the claim or part of the claim to which it relates, and (ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment, and … (c) must not include an amount for costs and must not be expressed to be inclusive of costs, and (d) must bear a statement to the effect that the offer is made in accordance with these rules, and … (f) must specify the period of time within which the offer is open for acceptance. (3) An offer under this rule may propose: (a) a judgment in favour of the defendant: (i) with no order as to costs, or (ii) despite subrule (2)(c), with a term of the offer that the defendant will pay to the plaintiff a specified sum in respect of the plaintiff's costs, or (b) that the costs as agreed or assessed up to the time the offer was made will be paid by the offeror, or (c) that the costs as agreed or assessed on the ordinary basis or on the indemnity basis will be met out of a specified estate, notional estate or fund identified in the offer. …
Rule 42.14 of the UCPR provides, relevantly: 42.14 Where offer not accepted and judgment no less favourable to plaintiff (cf SCR Part 52A, rule 22; DCR Part 39A, rule 25) (1) This rule applies if the offer is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer. (2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim: (a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and (b) assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
The essential problem with the offer made in this case is that it did not comply with UCPR r 20.26 in that the orders the Court would make if the offer were accepted were not "identified".
I take a broad view of the circumstances in which orders to be made by the Court may be "identified" within the meaning of UCPR r 20.26. This is not the occasion to try to describe all of the circumstances where the orders to be made may relevantly be "identified" within the meaning of UCPR r 20.26, even in the absence of a specification of those orders.
In the present case, however, there was a critical issue left unresolved by the terms of the offer. In context, it is not possible to discern whether, if the offer were accepted, the Court would be invited to enter judgment for the plaintiff, enter judgment for the defendant or make some other order bringing the proceedings to an end. The absence of identification of the basis upon which the proceedings would be brought to an end by acceptance of the offer was a critical omission. By reason of this omission, there was no "offer" made under UCPR r 20.26 capable of engaging UCPR r 42.14(2).
The primary judge cited the judgment of McColl JA, with whom Gleeson JA and Sackville AJA agreed, in Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 as supporting the making of an indemnity costs order here. I am unable to agree. That case did not involve an offer which had failed to identify the order the Court would be asked to make if the offer had been accepted.
Ms Duffin did not advance an alternative claim for indemnity costs based on the principles in Calderbank v Calderbank [1976] Fam 93. This concession was correctly made. An offer that does not comply with UCPR r 20.26 will not of itself take effect as a Calderbank offer unless there is something in the terms of the offer, or in the surrounding circumstances, to indicate that it is otherwise proposed to be relied upon on the question of costs: Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 at [43].
It follows that the costs appeal should be allowed and the award of indemnity costs made by order 1 on 23 June 2020 set aside.

Costs of the appeal

Section 98 of the Civil Procedure Act 2005 (NSW) confers on the Court a wide discretion with respect to costs. Under r 42.1 of the UCPR the general rule is that the Court is to order that costs follow the event. The "event" may be characterised in more than one way. Generally the "event" refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] (Ward, Emmett and Gleeson JJA). Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.
The relevant principles for the determination of costs on an issue-by-issue basis were stated in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJA): "• Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). • In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal. • If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27]. • Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed). • A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34]. • Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272."
The present is a case where the various issues dealt with were severable and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings. Such an exercise will be carried out on a relatively broad brush basis.
The appellant has achieved complete success on only one issue, costs, which occupied virtually none of the written submissions or hearing time on the appeal. The only other topic the appellant succeeded on in part was ground 2, which resulted in a change of less than $7,000 in the award made by the primary judge. [8]
To reflect the relative success of the parties on the severable issues I would award the appellant only 5% of its costs of the appeal. The respondents succeeded on virtually every issue. I would award them 95% of their costs of the appeal. Rather than make separate awards of costs it is appropriate to take an overall approach to costs by way of set off and I propose that the appellant be ordered to pay 90% of the respondent's costs of the appeal.

Orders

For the foregoing reasons I propose the following orders: 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.

Endnotes

Clause 3(1) of Pt 18 of Sched 6 to the Workers Compensation Act relevantly provides that the 2001 amendments (ie those made by the Workers Compensation Legislation Amendment Act 2001 and Scheds 1, 2, 3 and 8 to the Workers Compensation Legislation Further Amendment Act 2001) do not apply to or in respect of coal miners and the Act (and the regulations made under it) apply to and in respect of Ms Duffin's case as if the 2001 amendments had not been enacted.
These were the parties' competing calculations which differed only in a small amount. The primary judge apparently adopted the figures in MFI 1 - Mount Arthur's calculations - although the final award made was $2,494,386.40, not $2,483,523.71 as calculated in MFI 2, a difference of $10,862.69 which was not explained to the Court on the appeal.
These figures are set out in MFI 2 - Ms Duffin's calculations. Mount Arthur specifically agreed with the calculations in MFI 1 about future out of pocket expenses.
Where the award for hydrotherapy was calculated as being $9,016.10 as part of the $21,686.85 award.
Where the award for hydrotherapy at a cost of $500 per year was apparently left to be calculated by the parties - who agreed in MFI 1 and MFI 2 on an amount of $8,749.04.
The components given to the Court on appeal did not add up to $157,773.24, however no issue was made about that by the parties.
As set out at [14] fn 1 above, the 2001 amendments do not apply to or in respect of coal miners and the Workers Compensation Act (and the regulations made under it) apply to and in respect of coal miners as if the 2001 amendments had not been enacted.
In the context of the original amount awarded of $2,494,386.40. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2021

Workers Compensation Legislation Amendment Act 2001(NSW)

Workers Compensation Legislation Further Amendment Act 2001(NSW)

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Judgment (19 paragraphs)

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Cases Cited (34)