Welt v BHP-Utah Coal Ltd

[1995] QCA 173

IN THE COURT OF APPEAL	[1995] QCA 173
SUPREME COURT OF QUEENSLAND	Appeal No. 183 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.

[Welt v. BHP-Utah Coal]

BETWEEN:

HERBERT WELT

(Plaintiff) Respondent

AND:

BHP-UTAH COAL LIMITED

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12/05/1995

This is an appeal against a District Court judgment in favour of the respondent in the sum of $161,787.22. It is not disputed that the appellant is liable to the respondent for a back injury sustained in the course of his employment. However, the appellant contends that the amounts awarded for pain, suffering and loss of enjoyment of the amenities of life, a sum of $20,000, and for past economic loss, $138,000 are manifestly excessive. The principal point of dispute is very narrow.

When he was injured, the respondent was almost 51 years of age and had a long history of back problems. Three doctors gave evidence, expressing various opinions. The trial judge preferred the evidence of Dr Gillett, who stated that the accident exacerbated and aggravated existing degenerative changes in the respondent's spine, increasing his permanent partial disability of the whole body by about 2% to 20%.

Although only a small percentage of change, it was, to quote Dr Gillett, "a straw that broke the camel's back". Its effect was to disable the respondent from further engaging in his employment.

The accident occurred on 5 November 1989 and the trial commenced about four years and nine months later. The damages for both pain, suffering and loss of amenities and past economic loss were limited to a period of three years from the date of the accident. The basis for that course is to be found in Dr Gillett's evidence. The appellant's primary submission was founded on the premise that, in adopting that period, the trial judge failed to discount the amounts awarded to take account of possibilities, accepted by Dr Gillett, that the condition of the respondent's back at the time of the accident was such that the deterioration produced by the accident could have occurred at any time, and could have been caused by as little as a cough or a sneeze.

The material passage in the trial judge's judgment is in the following terms:

"It is a medical fact that a comparatively minor episode can cause the onset of a previously asymptomatic condition of degenerative change in the spine. On the other hand there are many instances of persons with asymptomatic conditions of degeneration in the spine who go through life without suffering any major disadvantage as far as their spine is concerned. I have considered the medical evidence in this action and I prefer to accept the evidence of Dr Gillett. ... I have considered the [respondent's] determination to keep working and his history of returning to work after injury in the past. I have considered his desire to accumulate assets which required him to keep working. I have kept in mind the vulnerable state of his back. I have decided in all the circumstances to allow him three years' loss of income."

The appellant's submission was that the three years was the precise period which Dr Gillett estimated that the respondent "would have been able to work ... before developing symptoms that he currently has". There would be obvious force in such a submission if the quoted passage exhausted Dr Gillett's opinion on the point. However, Dr Gillett agreed that it was "very difficult" for him to nominate any particular period for which the respondent would have been able to continue working but for the accident, and that his estimate might be "out by 50% either way". Although the trial judge did not specifically refer to that imprecision associated with Dr Gillett's estimate of three years before the respondent would have developed the symptoms produced by the accident, we are satisfied that it explains his Honour's adoption of three years as the period by reference to which he should assess pain, suffering and loss of amenities and loss of past income. His Honour took into account appropriate discounting factors in selecting three years as the period by reference to which the respondent's loss should be assessed in lieu of a longer period, which could have been justified on the basis of Dr Gillett's evidence and the respondent's history prior to the accident.

While that provides a sufficient answer to the appellant's attack on the amount awarded to the respondent for past economic loss, the amount of $20,000 awarded for pain, suffering and loss of amenities for such a relatively brief period is high. However, his Honour made very specific findings in relation to the effects of the accident upon the respondent, whom he obviously regarded favourably. Having regard to the principles which determine whether this Court will interfere with an award of damages, as stated in Elford v. FAI General Insurance Co. Ltd [1994] 1 Qd.R. 248, we are of opinion that no sufficient basis for reducing the trial judge's award has been shown by the appellant. See also O'Connell v. Hansen (C.A. No. 10 of 1994, unreported judgment delivered 3 August 1994), and Bennetts and D. Phillips v. McLean (C.A. No. 16 of 1994, unreported judgment delivered 16 August 1994).

In our opinion, the appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 183 of 1994
Brisbane [Welt v. BHP-Utah Coal]
BETWEEN:

HERBERT WELT

(Plaintiff) Respondent

AND:

BHP-UTAH COAL LIMITED

(Defendant) Appellant

FITZGERALD P.
DAVIES J.A.

MCPHERSON J.A.

Judgment delivered 12/05/1995

REASONS FOR JUDGMENT - THE COURT

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	DAMAGES - whether award of damages for pain, suffering and loss of enjoyment of amenities of life and for part economic loss are manifestly excessive
Counsel:	G. Egan for the Appellant R. Douglas for the Respondent
Solicitors:	Neil O'Sullivan & Rowell for the Appellant Quinlan Miller & Treston for the Respondent

Date/s of Hearing: 6 April 1995