Driver v Stewart & MMI

[2001] QCA 444

SUPREME COURT OF QUEENSLAND

CITATION:

Driver v Stewart & Anor [2001] QCA 444

PARTIES:

BRENDAN JOHN DRIVER
(plaintiff/respondent)
v
BENJAMIN STEWART
(first defendant/first appellant)
MMI GENERAL INSURANCE LIMITED
ACN 000 122 850
(second defendant/second appellant)

FILE NO/S:

Appeal No 3282 of 2001
DC No 1669 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2001

JUDGES:

Williams JA, Jones and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – GENERALLY – RE-EMPLOYMENT OF WORKER – whether past economic loss was calculated incorrectly given that no allowances were made for contingencies – whether future economic loss was calculated incorrectly given that the learned trial judge limited the plaintiff’s retirement age to 60 years of age.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – PAIN AND SUFFERING – whether the amount of damages awarded was excessive or inappropriate given the degree of incapacity and discomfort caused to the plaintiff – whether the award for future aid and treatment (ergonomically designed chair) was appropriate.

Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258
McDonald v FAI General Insurance Company Ltd [1995] QCA 283

COUNSEL:

A P Collins for appellants
R J Lynch for respondent

SOLICITORS:

McMahons National Lawyers for appellants
Richardson & Lyons for respondent

1. WILLIAMS JA:  This is an appeal against the quantum of damages awarded in a personal injury action arising out of a motor vehicle accident.  The respondent was born on 16 October 1966 and injured on 24 February 1999;  thus he was aged 32 at the date of the accident and 34 at the date of trial.

1. At the time of the accident the respondent was working as a marine trimmer and had been so employed for some time.  He continued that employment for some seven months after the accident.  A critical finding made by the learned trial judge was that his employment as a marine trimmer ceased because he could not physically manage the work;  his work station was such that it precipitated neck and thoracic pain.

1. The learned trial judge was also satisfied that but for the accident and consequent injury the respondent would have continued working as a marine trimmer until retirement.

1. It also is clear from the findings of fact made by the learned trial judge that the respondent is restricted in the variety of occupations open to him given the consequences of his whiplash injury.  He is currently able to work as a telemarketer but there are obvious limitations on what he may earn in that capacity over…