Gaudry v Pacific Coal Pty Ltd - [1996] QCA 525

IN THE COURT OF APPEAL	[1996] QCA 525
SUPREME COURT OF QUEENSLAND

Appeal No. 268 of 1995.

Brisbane
[Gaudry v. Pacific Coal P/L]

BETWEEN:

DAVID WAYNE GAUDRY

(Plaintiff) Respondent

AND:

PACIFIC COAL PTY LIMITED

(Defendant) Appellant

___________________________________________________________________________

Macrossan C.J.
Pincus J.A.
Lee J.

___________________________________________________________________________

Judgment delivered 20 December 1996

Separate Reasons for Judgment of each member of the Court, Pincus J.A. dissenting.

___________________________________________________________________________

APPEAL DISMISSED WITH COSTS
___________________________________________________________________________

CATCHWORDS: Personal Injury - negligence - insufficient evidence to support findings - advantage of trial judge as to credit - pre-existing weakness and degeneration.

Counsel:	Mr S C Williams Q.C. with him Mr J A McDougall for the appellant. Mr M M Stewart for the respondent.
Solicitors:	Minter Ellison for the appellant. Quinlan Miller & Treston for the respondent.
Hearing date:	26 September 1996.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 268 of 1995

Brisbane

Before

Macrossan CJ
Pincus JA
Lee J

[Gaudry v. Pacific Coal]

BETWEEN:

DAVID WAYNE GAUDRY

(Plaintiff) Respondent

AND:

PACIFIC COAL PTY LIMITED

(Defendant) Appellant

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 20 December 1996.

The Judge has found that the respondent's employer, the appellant, was responsible for

defective working conditions which caused the respondent to suffer a back injury on 20 August 1987.

The respondent is now incapacitated for all but light work. Under all headings of his claim the Judge

has assessed damages for personal injuries in a substantial figure.

The appellant at trial contended that the respondent had not proved that the effects of any injury

suffered on 20 August 1987 persisted beyond his return to work in September 1987 and that contention

is repeated in the arguments advanced on appeal. It is said that the Judge's finding that the respondent's present extensive disability is attributable to the event of 20 August 1987 is unsustainable. This

submission involves a contention that the respondent's own evidence of significant continuing symptoms

commencing from August 1987 should be rejected. Reliance is placed upon alleged inconsistencies in

his description of symptoms, the absence of early complaints of particular symptoms, and the absence

of an early reference to sciatic pain which it was said might have provided a more persuasive basis for

his claims. However, the appellant faces the difficulty that the trial Judge, with the advantage of seeing

and hearing the respondent, appears to have made a very careful assessment of the acceptability of his

evidence and this Court lacks the trial Judge's advantage.

The medical evidence provides a sufficient indication that the respondent now shows a

significant bulging of the lumbo sacral disc at the L5/S1 level but objective evidence of this was not

picked up before a CT scan was carried out in 1990. Earlier x-rays had provided no indication of this

particular abnormality. The result is that there appears to be a sufficient basis to relate symptoms of the

kind of which the respondent now complains to the abnormality detected by the scan.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] QCA 525
Decision Date: 20/12/1996

CaseChat Overview and Summary

The Court of Appeal considered an appeal by Pacific Coal Pty Ltd (the appellant) against a decision of the Supreme Court of Queensland (the primary judge) which awarded damages to David Wayne Gaudry (the respondent). The primary judge found that the appellant was negligent in maintaining unsafe working conditions which caused the respondent to suffer a back injury on 20 August 1987, and awarded damages for the respondent's personal injuries. The appellant argued that the primary judge's findings were not supported by the evidence, and that the damages awarded were excessive. The Court of Appeal found in favour of the respondent and dismissed the appeal with costs.

The Court of Appeal found that the primary judge had carefully considered the evidence and had made a finding that the respondent's employer, the appellant, was responsible for defective working conditions which caused the respondent to suffer a back injury on 20 August 1987. The Court of Appeal found that the primary judge's assessment of the respondent's credibility was important and that the Court of Appeal was not in a position to substitute its own assessment for that of the primary judge. The Court of Appeal found that the medical evidence provided a sufficient indication that the respondent now showed a significant bulging of the lumbo sacral disc at the L5/S1 level, but objective evidence of this was not picked up before a CT scan was carried out in 1990. The Court of Appeal found that the extent of the symptoms actually experienced by the respondent was a matter about which the primary judge expressed some reservation and this caused him to make an allowance in the assessment of the respondent's damages. The Court of Appeal found that the primary judge had made a reasonable assessment of damages for pain and suffering and for past and present economic loss.

The Court of Appeal found that the primary judge's findings were supported by the evidence and that the damages awarded were not excessive. The Court of Appeal found that the primary judge had made a reasonable assessment of damages for pain and suffering and for past and present economic loss. The Court of Appeal found that the primary judge had taken into account the potential for eventual problems which came from pre-existing weakness and degeneration in the respondent's spine and because of his conclusion that the respondent stated his symptoms and disabilities at a level which the primary judge was not fully prepared to accept. The Court of Appeal found that the primary judge's assessment of damages was not excessive and that the appeal should be dismissed with costs.

Orders