Kuypers v Ashton Coal Operations Pty Ltd [2014] NSWSC 1276

Supreme Court New South Wales

Medium Neutral Citation: Kuypers v Ashton Coal Operations Pty Ltd [2014] NSWSC 1276 Hearing dates: 7 July 2014 Decision date: 18 September 2014 Jurisdiction: Common Law Before: Hoeben CJ at CL Decision: As agreed between the parties make the following orders: The Court declares that: 1. Employers Mutual NSW Ltd, the first cross defendant, is liable to indemnify the second defendant against any legal costs and liability for damages and/or compensation arising from the plaintiff's claim. 2. Employers Mutual NSW Ltd, the first cross defendant, is liable to reimburse the second defendant for the legal costs and disbursements reasonably incurred by the second defendant in conducting the defence of the plaintiff's claim as a prudent uninsured from 17 April 2013. 3. Employers Mutual NSW Ltd, the first cross defendant, is liable to pay the cost of the second defendant and Coal Mines Insurance Pty Ltd, the second cross defendant, in relation to the application, hearing and determination of the separate question for determination. 4. Employers Mutual NSW Ltd, the first cross defendant, is liable to pay interest on the amounts referred to in Declaration 2 at the pre-judgment Court interest rate. Catchwords: WORKERS COMPENSATION - coal industry - meaning of the expression "employer in the coal industry" - employee of drilling company injured while working at a coal mine - claim for damages by injured employee against drilling company - refusal of indemnity by drilling company's workers compensation insurer - whether "special" insurer of employers in the coal industry liable for injured employee's claim for damages. Legislation Cited: Workers Compensation Act 1997 - s7A Workplace Injury Management and Workers Compensation Act 1998 - s9A Cases Cited: Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348 King v Central Reference Board & Ors; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; 77 CLR 123 R v Coldham & Ors; Ex parte The Australian Workers Union [1983] HCA 35; 163 CLR 415 R v Moore & Ors; Ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; 140 CLR 470 Category: Principal judgment Parties: Benjamin Kuypers - Plaintiff Ashton Coal Operations Pty Ltd - First Defendant Silver City Drilling (NSW) Pty Ltd - Second Defendant First Cross-Claim: Silver City Drilling (NSW) Pty Ltd - First Cross Claimant Employers Mutual NSW Limited - First Cross Defendant Coal Mines Insurance Pty Limited - Second Cross Defendant Second Cross-Claim: Silver City Drilling (NSW) Pty Ltd - Second Cross Claimant Ashton Coal Operations Pty Ltd - Cross Defendant to second cross-claim Representation: Counsel: Mr AR Harris QC/Mr NJ Floreani - First Cross Claimant Mr I Roberts SC - First Cross Defendant Mr L King SC/Mr B Odling - Second Cross Defendant Solicitors: Indemnity Legal Pty Ltd - First Cross Claimant Stephen Lee Legal - First Cross Defendant Sparke Helmore Lawyers - Second Cross Defendant File Number(s): 2012/393861