_Munzer v Johnston & Anor_

Judgment (151 paragraphs)

[1]

[1] MCMEEKIN J: In this action the plaintiff, Cherie Joy Munzer, claims damages for personal injuries suffered in a motor vehicle accident which occurred on 17 September 2004. Liability is admitted.

[2]

[2] The plaintiff was born on 26 July 1960 and is now aged 48 years.

[3]

[3] It is not disputed that Ms Munzer suffered severe injuries in the accident. Her injuries were:

[4]

[5]

(e) An open comminuted fracture of the right patella;

[6]

[4] As a result of her multiple injuries Ms Munzer has been diagnosed as suffering from a chronic adjustment disorder with depressed mood.

[7]

The Civil Liability Act

[8]

[5] The assessment is governed by the provisions of the Civil Liability Act 2003 (CLA) and the Civil Liability Regulation 2003 ("the Regulation").

[9]

[6] The effect of those provisions is to require a court to assess an injury scale value ("ISV") for the injury from the range of injury scale values stated in schedule 4 of the Regulation in order to determine the level of general damages (as defined) in accordance with the rules laid down in s 6 of the Regulation. [1] Section 51 of the CLA defines "general damages" as damages for

[10]

[7] Section 62 of the CLA provides for the calculation of general damages according to the assessment of the ISV and the formulae set out in s 62.

[11]

[8] Whilst the regulations indicate that the purpose of the elaborate scheme set out there is to promote consistency in awards[2], sight must not be lost of the overriding purpose of the ISVs prescribed - to reflect the level of adverse impact of the injury on the injured person.[3]

[12]

The court is required to have regard to the guidance provided by the provisions in Schedule 4 concerning its use in so far as they are relevant to the particular case but is not necessarily limited to those factors: Sch 3 s. 8.

[13]

This case concerns multiple injuries. In such a case it is necessary to determine the dominant injury as it is defined[4], have regard to the range of ISVs applicable to that injury and determine where in the range of ISVs provided for that injury it should fall, and determine whether the maximum ISV in that range ("the maximum dominant ISV") adequately reflects the adverse impact of all the injuries.[5] If the maximum dominant ISV is not sufficient then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV selected.[6]

[14]

Additionally, in assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case; Schedule 3 s 9. The examples provided of other matters are the injured person's age, degree of insight, life expectancy, pain, suffering and loss of amenities of life. In assessing an ISV for multiple injuries, the range for, and other provisions of schedule 4 in relation to, an injury other than the dominant injury of the multiple injuries can be considered.

[15]

The extent of whole person impairment is an important consideration "but not the only consideration affecting the assessment of an ISV": Sch 3 s 10. The dictionary defines "whole person impairment" in relation to an injury as an estimate

[16]

... expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured person's overall ability to perform activities of daily living other than employment.

[17]

[13] An adverse psychological reaction to an injury is treated merely as a feature of the injury and is not separately assessed unless the reaction amounts to a mental disorder.[7]

[18]

Schedules 5 and 6 concern the method of assessment for a psychiatric impairment rating (PIRS). There is no suggestion in this case that Dr Persley who has provided the assessment in this case is not appropriately qualified and trained, or that his assessment rating was not in accord with the legislative requirements: see Sch 3 s 6; Sch 5 ss 4 and 12.

[19]

[15] Ms Munzer has suffered multiple injuries. It is necessary to identify the dominant injury.

[20]

[16] The reports of two orthopaedic surgeons, Doctors Foote and Boys, were tendered for the purposes of establishing the level of permanent impairment. Each used the American Medical Association Guides for the Assessment of Permanent Impairment 5th ed., as is preferred by the Regulation.

[21]

[17] The significant injuries, with the whole person impairment as assessed by the orthopaedic surgeons in brackets, were as follows: right arm and elbow (Dr Foote: 6 per cent; Dr Boys: 6 per cent), left leg including femur and knee (Dr Foote: 18 per cent; Dr Boys: 4 per cent), right leg including ankle, hind foot and knee (Dr Foote: 14 per cent; Dr Boys: 17 per cent). Dr Foote would add 3 per cent for pain to arrive at a whole person impairment of 36 per cent.

[22]

[18] As well Ms Munzer has scarring over both legs and elbow which she considers unsightly.[8]

[23]

Finally Dr Persley estimated the degree of impairment related to the chronic adjustment disorder with depressed mood at 1 per cent using the PIRS method. Utilising the AMA guides he would assess the impairment at 10 per cent.[9]

[24]

Mr Crow of counsel, who appeared for the plaintiff, contended that the injury to the right leg was the dominant injury and that it fell within item 133 of Schedule 4 of the Regulation ('extreme lower limb injury'). Item 133 falls within Division 11 of Schedule 4 of the Regulation. That Division deals with "lower limb injuries, other than injuries mentioned in .... Divisions 12 to 15" (underlining added). Divisions 12 to 15 deal with injuries to the knee, ankle, foot and toe respectively. It seems to me that the injuries fall within the exclusion. In any case I am not persuaded that the injuries come within the examples given ("The most severe injuries short of amputation" and "a lower limb injury causing whole person impairment of 40%").

[25]

With respect to her right leg Ms Munzer has injuries and impairment of the ankle, knee and hind foot. In relation to her left leg she has an injury to the femur and knee. In each case in appears there was a leg fracture extending into the knee joint causing pain that is constant, permanent and which limits movement and impairs agility. In each case there is a risk of degenerative changes. The orthopaedic surgeons consider that a right knee replacement is virtually inevitable and that there is a 50 per cent chance of a left knee replacement being required. Knee replacement involves major surgery. Such replacements last about 15 years and hence there is the prospect that given her life expectancy of about 40 years Ms Munzer will require further knee replacements through her lifetime, given that the initial replacements, if they occur, will probably be required between ages 55 and 60.[10]

[26]

In my view the injury to each of the left and right knees ought to be categorised in item 138 of Schedule 4 ('serious knee injury'). The ISV range is 11 to 24. I have the impression that the right knee is worse than the left but to draw a distinction would seem to me to be splitting hairs. I would assess the injuries at falling at the very upper end of the range and attribute an ISV of 24 to each. I do so for a number of reasons. The whole person impairment assessed by the orthopaedic surgeons is an important factor. When one adds to that the multiple operations that Ms Munzer has already undergone, the operations that are to come, the complete loss of her capacity to carry out employment, her substantial loss of independence, and what would appear to be a lifelong need for medication, all indicate a very significant level of adverse impact on Ms Munzer.

[27]

The injury to the right leg involves some impairment of the right ankle. In my view this falls within item 143 of Schedule 4 ('moderate ankle injury'). Whilst it is difficult to separate out the impact of the various injuries there is no doubt that the injury to the ankle adds significantly to Ms Munzer's difficulties especially in walking on uneven ground. She attributes a substantial part of her pain to the ankle which causes her to use a wheelchair essentially after lunch each day.[11] I should note that she falls regularly - sometimes daily - and at times has suffered injury as a result.

[28]

The whole person impairment assessment of Dr Boys in respect of the injury to the right talus and ankle is given as a 5 per cent whole person impairment. Dr Foote does not separate out the whole person impairment that he would attribute to the right ankle although it is about one half of the impairment to the lower extremity that he assesses.[12] Thus the impairment attributable to this injury is in the order of 5 per cent to 7 per cent. The additional comment in item 143 is to the effect that an ISV at or near the bottom of the range (6 to 10) will be appropriate if there is a whole person impairment for the injury of 6 per cent. Some allowance should be made for pain in this assessment. I attribute an ISV of 8 to this injury.

[29]

Mr O'Driscoll, for the defendants, submitted that the dominant injury was to the right elbow. He submitted that item 102 was appropriate ('serious elbow injury'). Mr Crow contended for item 101 ('extreme elbow injury'). I think it is plain that item 101 is not applicable. The whole person impairment assessed by both orthopaedic surgeons (6 per cent) falls a long way below the whole person impairment suggested in the example in item 101 (of between 20 per cent and 42 per cent). As well, although Ms Munzer has significant loss of extension and flexion of the right elbow, it could hardly be said that she has been left with 'little effective use of the elbow joint' as the comment in item 101 requires.

[30]

In my view item 102 of Sch 4 of the Regulation is appropriate. Ms Munzer has suffered a serious fracture, the description of which was not disputed and can be found in the report of Dr Walters, a specialist upper limb surgeon.[13] The impact of the injury to the upper limb can best be seen in the report of Ms Helen Coles, occupational therapist.[14] Ms Coles' views are confirmed by the opinion of Dr Boys.[15] It is evident that Ms Munzer has not made a 'reasonable recovery' from the injury as is required by item 103. There is the prospect of osteo-arthritic changes in the elbow joint. I would assess an ISV of 20.

[31]

Ms Munzer has scarring as previously noted. It is detailed in Dr Foote's report.[16] No photographs were tendered. Part 7 of Schedule 4 is relevant. In the general comment it is noted that scarring has been taken into account into fixing the range of ISV's for many of the physical injuries mentioned in the schedule. I have received no submissions that that is not the case here. In my view an ISV towards the bottom of the range (0 to 25) is appropriate and I assess an ISV of 5.

[32]

The adjustment disorder assessed by Dr Persley should fall within item 13 ('minor mental disorder') and I assess an ISV of 1.

[33]

It can be seen then that the highest ISV that I have assessed is an ISV of 24 for each knee injury. That is the maximum ISV allowed in the range appropriate for the injury. Whilst I have assessed an ISV of 20 for the right elbow injury, ie at a lesser level than the knee injuries, the significant point is that the range applicable to item 102 - 13 to 25 - is higher than that permitted for the knee injuries. In such a case the 'dominant injury' of multiple injuries is defined to mean the injury of the multiple injuries having the highest range.[17] Thus, as Mr O'Driscoll submitted, the right elbow injury is the dominant injury and the range set out in item 102 is the appropriate item to consider.

[34]

The question then is whether an ISV of 25 is adequate to reflect the adverse impact of all these serious injuries. In my view it is plainly not and indeed that was conceded by Mr O'Driscoll who submitted that an uplift to an ISV of 40 was appropriate. Given that each of the knee injuries has an injury scale value of 24 and given that in addition the plaintiff has a serious disability of the right arm, there is a strong case for an uplift approaching 100 per cent, the maximum permitted.[18]

[35]

The total whole person impairment is an important factor. Dr Boys assessed that at 24 per cent and Dr Foote at 36 per cent. In my view there is no doubt at all that something should be added to the impairment assessment for pain (as Dr Foote did) which is Ms Munzer's daily companion.

[36]

The impact of these various injuries on Ms Munzer has been substantial. In addition to the matters that I have already mentioned she has lost the capacity to enjoy any of her pre-accident activities. She regularly enjoyed canoeing, fishing, motor cycling, water skiing, dancing, bush walking and playing with her dogs.[19] She has difficulty walking other than short distances without some form of aid. Not surprisingly she complains of a significant loss of libido, complains of stabbing pains in the low back which is probably related to her altered gait and frequent use of a wheelchair, and has significant sleep disturbance. Her weight has ballooned by over 30kgs which distresses her. She is a person whose enjoyment of life was obtained from an active outdoors existence. She is now confined indoors for much of her time. She will bear all these impairments and disabilities for the next 40 years. She is acutely aware of what she has lost. All these matters can be brought into account into assessing an ISV.[20]

[37]

I appreciate that I have to bring into account that the effects of multiple injuries commonly overlap.[21]

[38]

Consideration of other items in the schedule confirms that a very substantial uplift is required. Item 105 would suggest that for a whole person impairment as assessed by Dr Foote an ISV of above 40 would be appropriate. Item 125 suggests that a whole person impairment of over 40 per cent is necessary to reach an ISV of 46. Against that is item 95 which suggests that a whole person impairment of 25 per cent is equated to an ISV approaching 50. Presumably the table is not intended to be internally consistent.

[39]

In my view there should be an uplift of 75 per cent and I assess an ISV of 44.[22]

[40]

Applying s 62(i) of the CLA I calculate general damages at $78,320.

[41]

[37] Before turning to questions of economic loss it is necessary to say something as to my impression of Ms Munzer's character. Mr O'Driscoll of counsel, who appeared on behalf of the defendants, submitted that there ought to be significant discounting of the award, especially in relation to claims for economic loss, by reason of the evidence that emerged as to Ms Munzer's consumption of drugs.

[42]

[38] In 1995 Mr Munzer had a conviction for the possession of cannabis. Following the subject accident her blood was analysed and the presence of cannabis and methylamphetamines found. The defendants tendered a report of Dr R D Hoskins, Director of Queensland Health's Clinical Forensic Medicine Unit. Dr Hoskins expressed the opinion that the level of tetrahydrocannabinol found in Ms Munzer's blood (0.002 mg/kg) indicated recent use of cannabis, most likely within the previous few hours.[23] The relevance of this was that the specimen of blood was obtained at 10.20 am following the motor vehicle at 6.40 am, thus indicating consumption of cannabis on the morning of the accident and prior to it.

[43]

As well, the analysis of blood[24] indicated a presence of methylamphetamine at .66 mg/kg. This is apparently an extremely high level. It would be likely to be associated with 'irrational behaviour, poor concentration, anxiety and restlessness'. The ability to drive a car would be adversely affected.[25]

[44]

Ms Munzer conceded in cross-examination that she was a regular user of marijuana prior to the subject accident. She said that she would normally have two cones per evening.[26] She pointed out that her consumption varied.[27]

[45]

As to amphetamines Ms Munzer said that she was given some because the anniversary of her daughter's death was approaching[28] and that to the best of her knowledge she had not used it before.[29] Mr O'Driscoll pointed to a diary note prepared by a solicitor in relation to the charge of driving under the influence that Ms Munzer faced following the subject accident which includes the following:

[46]

'She is an occasional user of amphetamine but cannot recall when she consumed it last prior to the accident.' [30]

[47]

[42] Ms Munzer was emphatic in her denial of having any recollection of having used amphetamines prior to that occasion.[31] She gave every appearance of telling the truth. Ms Munzer was not particularly articulate as a witness. I mean no disrespect when I say that her verbal skills were not of a high level. I believe her denials of having any recollection of prior use of amphetamines.

[48]

Two other pieces of evidence reinforce that belief. Firstly Mr O'Driscoll did not question Ms Munzer's friend and former de facto partner, Mr Martin Pearce, along the lines that Ms Munzer was a regular user of amphetamines or that consumption of that drug, or indeed any drug, impacted on her capacity in any way.

[49]

Secondly, and perhaps more cogently, the plaintiff's pre-accident employer, Ms Paulette Lindley, had observed no sign of the plaintiff being affected by drugs in the course of her employment over a near two year period prior to the accident. Ms Lindley was an experienced employer, conscious of her responsibilities to her staff and of the obligations that her staff owed as employees. She made it plain that she would dismiss any employee whom she thought was affected by drugs when at work. That was qualified in that she would offer a good employee a second chance but nonetheless she impressed me as having a very strict attitude in relation to this question.

[50]

Ms Munzer became tearful when the topic of her daughter's death came up in the evidence. She was plainly distressed by the memory.

[51]

There seemed to me to be good reason to accept Ms Munzer's claim that the consumption of methylamphetamine was a one-off event. I accept her explanation for the presence of methylamphetamines in her blood on the day of the accident. I find that the analyst's report of the drugs found in her blood does not provide an accurate picture of Ms Munzer's usual state.

[52]

[47] Mr O'Driscoll concedes that there is no residual earning capacity.

[53]

[48] The wages that Ms Lindley would have paid to the plaintiff had she remained at her employment are set out in exhibit 2. The accurate calculation of the wages lost, based on the assumption of continued employment with Ms Lindley, is $87,836.[32]

[54]

The only issue argued was whether there should be a discount applied to that figure because of the plaintiff's admitted drug use and the risk of its discovery by her employer.

[55]

Mr O'Driscoll submitted that Ms Munzer's employment required her to operate machinery, that it is apparent from Dr Hoskins' report that her capacity to do so was adversely affected on the morning of this accident (and Ms Munzer was on her way to work at the time), and so I should draw the inference that she was at serious risk, by reason of her drug-taking habits, to lose her employment.

[56]

The employer Ms Lindley's assessment of Ms Munzer could hardly be more glowing. She described Ms Munzer as an 'excellent employee'.[33] She invariably arrived early for work, kept her machinery meticulously even to the extent of supplying seat covers from her own resources when those at work were worn, was reliable and an excellent worker.

[57]

I saw and heard Ms Lindley. I am quite satisfied that if she had discovered that Ms Munzer was consuming drugs such as cannabis, she would have made it plain to her that her employment was at risk and, because she was an excellent employee, given her a second chance.

[58]

Quite apart from that I was impressed with Ms Munzer's expressed attitude to work, backed up as it is by the observations of her employer. Ms Munzer said that she enjoyed her work and hoped to work on to age 65. The photographs taken pre accident show a slim lady of very fit appearance. [34] In one she is evidently engaged in concreting. Her claim to an active lifestyle was not challenged.

[59]

I am quite confident that Ms Munzer's view was that her consumption of cannabis had no effect on her capacity to work and indeed that was the observation of Ms Lindley. It was plainly evident that Ms Munzer loved her work. In my view there was little prospect that Ms Munzer would have permitted her drug consumption to impact on her employment and that if it had there was no doubt Ms Lindley would have offered her a second chance. Ms Munzer would have taken that chance. In my view there is no good ground for discounting the award.

[60]

I therefore allow the past economic loss claim in the sum of $87,836.

[61]

[56] It is necessary to bring into account the workers' compensation benefits received. Counsel disagreed as to the amount to be brought into account.[35] My examination of the payment/recovery history report issued by WorkCover Queensland[36] suggests that Mr O'Driscoll has the figure right at $48,553.03.[37] I will therefore allow interest at $39,292.97 at 3.14 per cent[38] for four years - a total of $4,934.

[62]

[57] Ms Lindley would currently be paying Ms Munzer $596 net per week as a permanent casual. Because of inclement weather Ms Lindley's business can close for periods of time. Ms Lindley suggests in her statement that she would normally expect Ms Munzer to take four weeks annual leave and that there should be an allowance for two weeks for wet weather stoppage, thus suggesting an average annual net salary of $27,416.[39] I will adopt a net weekly wage of $527 as reflecting the plaintiff's maintainable earning capacity had the accident not intervened.

[63]

There is no suggestion of any residual earning capacity. The only significant discounting factor that Mr O'Driscoll contended for was the risk to her employment associated with what he termed 'long term drug use'. I have expressed my views on that submission.

[64]

All indications are that Ms Munzer was extremely fit and there was no reason to doubt that she would have continued to work for as long as she was able. That of course does not necessarily mean she would have retired at age 65. While she was employed as a machinery operator/labourer by Ms Lindley it would seem that her job was not particularly arduous and principally involved operating a ride-on mower or tractor and slasher.

[65]

I think the risk of Ms Munzer letting her drug consumption interfere with her employment was minimal. To allow for the argument, and for the possibility that she may not have pursued, or been permitted by employers to pursue, manual work to age 65 years, I will discount the award by 20 per cent rather than the conventional 15 per cent.

[66]

I will allow $255,000 for future economic loss.[40]

[67]

[62] Very substantial claims are made pursuant to the principles explained in Griffiths v Kerkemeyer[41] and Van Gervan v Fenton.[42]

[68]

To date that care has been provided by Mr Martin Pearce and to a lesser extent the plaintiff's mother, Mrs Glenys Munzer. Their evidence is detailed principally in their statements.[43] The submission is made that 18 hours per day care was required for the two weeks following the accident and then 16 hours per day care required up until December 2005 and thereafter six hours per day.

[69]

This may be contrasted with the opinions of Ms Helen Coles, occupational therapist, who, after an extensive interview with Ms Munzer and Mr Pearce, expressed the following opinion:

[70]

'Ms Munzer could be expected to have had need for full time care for two months when she was bed-bound, care to a lesser extent for the next four months or so but no less than eight hours per day, care for the next three months or so of no less than four to six hours per day then progressively reducing until about 12 months or so post-injury to about two to three hours per day and thereafter continuing at no less than two hours per day on average but increasing at times of elevated pain. In addition to the direct care and assistance, Ms Munzer has had need for indirect monitoring of her well-being.'[44]

[71]

[65] Mr O'Driscoll was not particularly critical of Ms Coles' analysis of the amount of care required. His principal submission was that the estimates provided by the lay witnesses were not really assessments of the time taken to provide services exclusively for the plaintiff by reason of her accident-caused disabilities but rather included time taken in providing her with companionship, for which there was no claim, and time taken for the provision of services that benefited the whole household and not exclusively Ms Munzer. For example, in relation to the first visit of Mrs Glenys Munzer, Ms Munzer's mother, in October 2004, Mrs Munzer conceded that perhaps eight to 10 hours was actually spent doing things for her.[45] That is to be compared to the 16 hours claimed in her statement.

[72]

Mr O'Driscoll's second principal submission was that Ms Munzer was in fact operating at a higher level of activity than Ms Coles had assumed from her discussion with Ms Munzer and her visit to her home. For example, it is evident that Ms Munzer is able to get herself to the local IGA and do light shopping albeit that she must support herself on the shopping trolley to get about the store.[46]

[73]

Whilst I accept that some moderation of the claim is called for by reason of this evidence, not too much can be made of it. Ms Munzer pays a considerable price for her determination to try and be independent.[47] She is very unsteady on her feet and falls frequently.[48]

[74]

Because of her disabilities Ms Munzer's capacity to perform the usual range of domestic tasks has been very substantially reduced. That capacity can fluctuate depending on her pain levels. I would assess that she has lost a little more than half that capacity.

[75]

Generally I accept the analysis advanced by Mr O'Driscoll in his submission[49] save that it seems to me that for the period from September 2006 to the present the level of assistance needed is a little greater than he has allowed. His submission was that 10 hours per week was required. I propose to allow 12 hours per week for that period.

[76]

There is of course no precision in estimates of this type. It is made even more difficult where the evidence does not descend to any particularity as to what tasks are attended to and what time each task takes. Whilst I respect the expertise that Ms Coles brings to the assessment it is impossible to judge how accurate her assessment might be without an analysis of this type. Essentially I have moderated her assessment slightly as it seems Ms Munzer is a little more active than she had assumed.

[77]

The parties are agreed that the appropriate rate on which to assess past care is $22 per hour.

[78]

Adopting Mr O'Driscoll's submission as to the level of past care but adjusted to allow 12 hours per week from September 2006 to the present results in the total number of hours applicable of 4,177.

[79]

[74] I will allow interest at 3.14 per cent[50] for four years on that allowance of past care. I calculate the interest at $11,540.

[80]

[75] The defendants' submission conceded 10 hours per week for future care. The plaintiff's counsel's submission is for care at 35 hours per week.

[81]

[76] I accept that different considerations apply to the assessment of the plaintiff's future need for care. One fundamental assumption that Ms Munzer makes is that Mr Pearce will remain on the scene. There are good reasons for thinking that she is overly optimistic in that regard. She and Mr Pearce did once enjoy a de facto relationship but that had ended some 12 months prior to the subject accident. They have kept their joint interest in the property where they live principally because they wish to preserve it for their son. It is plain that Mr Pearce has a strong sense of obligation to Ms Munzer and that he has gone out of his way to ensure that she is cared for as well as he can manage. Nonetheless he finds the present arrangement frustrating and that is hardly surprising.[51] Further, Mr Pearce is performing tasks that he plainly was not accustomed to perform prior to the subject accident. Finally, when the issue was squarely raised with him as to he and Ms Munzer sharing a comfortable retirement together, he made it plain that that was Ms Munzer's plan and not his.[52]

[82]

The significance of this seems to me to be that Ms Munzer's view of her future is unrealistic. She presently lives in a dwelling that she and Mr Pearce constructed. The property is located about 20 kilometres from the small town of Calliope. Calliope is about 20 kilometres from Gladstone which is the major population centre in the district. The property itself is described by Ms Coles, who visited the property, as 'a mountainous 160 acres'.[53] It is hardly appropriate for a disabled person. I suspect that Mr Pearce's presence has made it workable so far.

[83]

A second consideration is that Ms Munzer makes a claim for the cost of home modifications and, on the assumption that those modifications are performed, one would expect her need for care to reduce to some extent.

[84]

A third consideration is that Ms Munzer's present status is likely to change and for the worse. There is the prospect of osteoarthritic degenerative change occurring. The orthopaedic surgeons are of the view that eventually Ms Munzer's right knee will require a total knee replacement between ages 55 and 60 - thus there is the expectation of a steady decline in function of that knee over the next 9 years or so before surgery will be attempted. As well, the orthopaedic surgeons consider that there is a 50 per cent probability that the left knee will deteriorate to a sufficient extent to require a total knee replacement. The performance of the surgery proposed might well restore an increased level of functionality. There would remain a very considerable impairment of function. Ms Coles has attempted to address these issues in her report, suggesting that there would be a 'temporary increase of one to two hours per day' in the care required referring, I think, to the period following surgery.[54]

[85]

A further issue is that if Mr Pearce does not remain living on the property then someone will need to carry out essential maintenance of the property which will include road maintenance, fence repairs and maintenance, and checking the water pressure pump and taking it in for servicing when required. I have not brought these factors into consideration in relation to the past on the basis that Mr Pearce lives on and owns the property and has an obligation to carry out these essential tasks out in order that he continue to live there. However, that assumption is not necessarily justified for the future. Ms Coles suggests that some three hours per week ought to be allowed for these services.[55]

[86]

Whilst Ms Munzer's present expectation is that she will remain living on her present property and that it will be adapted by the erection of an American barn-style dwelling more suited to her disabilities, I anticipate that she might have very significant difficulties in both coping on the property on her own should Mr Pearce leave and in obtaining the necessary care and assistance that will be essential to her survival on the property. It seems to me that there is a reasonably good chance that she will relocate into a dwelling closer to facilities and better set up for her disabilities. Ms Coles advised that in her view, should that occur, Ms Munzer's need for care and assistance would reduce to be something in the order of one and a half to two hours per day on average (from two to two and a half hours per day).[56] There would still need to be some assistance with maintenance of any dwelling house but it would reduce to three to four hours per month, rather than per week, on average.

[87]

In weighing up these various factors I would rate the prospect of deterioration in her condition as virtually certain, the prospect of Mr Pearce quitting the property as highly likely, and the prospect of Ms Munzer remaining on the property in the longer term should Mr Pearce leave as unlikely.

[88]

I think that the best I can do is to be guided by Ms Coles' expertise in this regard. I propose adopting 15 hours per week as the long term average. I note that the lowest level at which Ms Coles puts the necessary care and assistance required is on the assumption of a relocation to a town in an optimally designed dwelling closer to facilities.[57] Her assumptions there would justify a level of care at between 11 hours and 15 hours per week. Given that I think that the deterioration in Ms Munzer's condition is a certainty, I have gone to the upper end of that range. I note that something more in the order of 25 hours per week would be required if Ms Munzer attempted to persist in remaining at her current location without the assistance of Mr Pearce performing necessary property maintenance tasks.[58] With an appropriate dwelling that level should reduce to something more in the order of 17 hours to 20 hours per week but without allowance for degeneration. Hence my approach contains a significant discount from one possible future.

[89]

The parties have agreed on an appropriate rate of $26 per hour for the future claim.

[90]

I allow $358,000 for Ms Munzer's future care and assistance needs.[59]

[91]

[86] Ms Munzer will require a right knee replacement costing approximately $25,000 somewhere between age 55 and age 60. Knee replacements last about 15 years and so it is probable that Ms Munzer will require a further right knee replacement during the course of her lifetime.

[92]

[87] As I have mentioned there is a 50 per cent probability that Ms Munzer will require a left knee replacement. Dr Foote considers that this will be required at about age 60 if it is needed at all.[60]

[93]

Dr Boys also spoke of the possible need for an athroscopic debridement in relation to the right knee at a present-day cost of $4,000. I understand his report to mean that that would be in addition to the total knee replacement which he saw as being likely in the longer term.[61]

[94]

In addition Mr Crow on behalf of the plaintiff seeks damages for the cost of surgery to the right ankle. Dr Foote considered that that procedure was probable at a present day cost of $7,500.[62] Dr Boys thought that there would be no such requirement.[63] Some amount should be allowed as a global sum for the possibility.

[95]

I propose to allow $34,000 under this head.[64]

[96]

[91] The claim made by Ms Munzer is detailed in her statement.[65] She is presently consuming medication in the form of Tramal and Efexor which requires monitoring by a general practitioner. The average weekly cost is calculated at $24.26. With her continuing deterioration that is expected, especially in relation to the right knee, I would anticipate that her needs will increase, if anything, over the years.

[97]

I propose to allow $22,950 for future costs of medication and attendance on a general practitioner.[66]

[98]

Dr Foote pointed out in his report that Ms Munzer has a need for 'sturdy boots and insoles for her right foot'. I note that Mr O'Driscoll has conceded a sum of $12,000 for orthotics which I propose to adopt. [67]

[99]

A claim is made for the cost of replacing a wheelchair each two years at $999 per chair.

[100]

I have not been referred to any evidence justifying either the cost of a wheelchair of the type that Ms Munzer uses nor the likely replacement period that is appropriate. Ms Munzer uses the chair only within the home and only when tired from the pain that she bears. Without expert evidence to assist I am not prepared to make an assumption that a wheelchair used in those circumstances will require replacement every two years.

[101]

Mr O'Driscoll has conceded $5,000 as a global sum for 'aids and equipment' and I propose to adopt that figure as the best guide that I have.

[102]

Finally, under this head Mr Crow has submitted on behalf of the plaintiff that there should be some allowance for travel costs. As I have pointed out Ms Munzer does live in an isolated location and it will be necessary for her to seek medical attention if only through regular visits to the general practitioner in relation to medication over the years. The nearest medical practitioner is based in Gladstone, some 40 kilometres distant from her home. Ms Munzer may of course move closer, but her needs may increase as well. I propose to allow $1,400 under this item.[68]

[103]

[98] The parties are agreed that Ms Munzer requires alterations to any dwelling to cope with her disabilities, including her need to use a wheelchair. Her present home is on three different levels and access to the verandah and kitchen is extremely difficult for her. She is essentially confined to a relatively small space. It is plainly a reasonable response to those difficulties that she have constructed a home with at least one level on which she can live comfortably.

[104]

[99] The basic compensatory principle is that Ms Munzer should be awarded such sum as will restore her to the position that she would have been in if there had been no negligence, so far as money can do so. Ms Munzer is determined to continue to live on her own land. It is a rural block. She clearly enjoys a rural lifestyle. To require her to move into a town such as Gladstone would be a significant hardship for her.

[105]

[100] Given Ms Munzer's insistence that she wishes to persist in living on her property then the true measure of her loss is the cost of adapting her present home or the construction of a more suitable one on the property. It may be cheaper for the defendants that Ms Munzer lives elsewhere but it hardly lies in the mouth of the tortfeasor to tell her where she should live.

[106]

[101] I was not given the costs of either adapting her present home or providing her with an appropriate home on her property. I suspect adapting her three level home was not really feasible. Once the reasonable cost of providing her with an appropriate home on her land was established then the only real issue, it seems to me, is whether the defendant could demonstrate - the onus being on the defendant - that the proposed course involved the plaintiff in an unreasonable failure to mitigate her loss.

[107]

[102] What was proved was the capital cost to alter an existing hypothetical dwelling to suit Ms Munzer's disabilities, or alternately the additional cost when one compares a purpose built house to a hypothetical project house, without regard to her present circumstances or intentions. The plaintiff relied on a report from Mr John Deshon, an architect with particular interest in the provision of accommodation for the disabled. He estimated those capital costs, assuming adaptation for wheel chair use, as in the order of $165,000 or so.[69]

[108]

Ms Munzer has no intention of having an architect-designed home erected on her property. She has already purchased a kit home and presently intends to retain a builder to erect it. She has already expended nearly $70,000 on what is described as an American barn-style shed. [70] No evidence was led that that construction will not meet the requirements that Ms Munzer now has as a result of the accident.

[109]

The defendant led no evidence that Ms Munzer's proposed course was unreasonable, unless it be the evidence of Mr Leck as to the costs of adapting the hypothetical home envisaged by Mr Deshon. There would need to be a very substantial difference in costs, or some other factor in addition, to persuade me that the plaintiff was acting unreasonably in endeavouring to maintain the life style she previously enjoyed. No such submission was made

[110]

Mr Crow submitted that I am not to be concerned with how Ms Munzer wishes to spend any award of damages that she receives, citing Todorovic v Waller[71] and so should ignore what she has spent and intends to spend. In my view that submission is not in accord with principle. It is true that I am not concerned with how Ms Munzer will spend her award. The expression of that principle in Todorovic goes to the lack of concern that the court has as to whether the plaintiff will in fact apply the award to the heads of loss proved. But the way in which a plaintiff intends to meet the accident caused disabilities, and the costs she has incurred and will incur in doing so, seem to me to be an essential guide as to how damages should be assessed.

[111]

Ms Munzer has already incurred costs approaching $70,000 to erect the American barn-style dwelling.[72] There is no doubt that the kit was purchased because of Ms Munzer's accident-caused needs. To that must be added the cost of actually constructing the dwelling. No evidence was led as to what that cost might be.

[112]

I have no doubt that the costs of the purchase and construction of the American barn kit home would be substantially less than the $168,000 which Mr Deshon arrives at in his Schedule 6.

[113]

It seems to me that Ms Munzer's true requirements consequent upon an injury are a dwelling on one level with appropriate adaptation to the entry to the dwelling to enable easy access, some protection of the walls from the inevitable collisions with the wheel chair, some adaptation to the standard bathroom to enable access via a wheelchair on those occasions when it is necessary, perhaps some adaptation to the kitchen to enable her to access her cupboards and to sit when she becomes tired, and allowance for those items numbered 9 to 15 in Mr Deshon's Schedule 6,[73] which items he costs at $13,950.

[114]

I have no evidence to go on. I will assume that the home that Ms Munzer has purchased meets these basic requirements or can be easily adapted to do so. I will allow the $13,950 that I have referred to as I am confident that Ms Munzer has not thought of these adaptations to the standard home and they seem to me to be reasonably required.

[115]

I will hazard a guess and allow $8,000 for the costs of construction. To arrive at that figure I have assumed that it would take a tradesman some four weeks to erect the American barn-style shed.[74] In total I will allow $90,000 to include the costs already incurred (at least $67,500) and the cost to be incurred in finalising the erection of the shed. That sum seems to me to best reflect the actual costs that Ms Munzer will incur, and reasonably incur, in providing for herself appropriate accommodation in the place in which she wishes to live.

[116]

In case I am wrong in my approach - and neither counsel thought this was the correct approach - I will make some brief findings in relation to the cases argued.

[117]

Mr Crow sought to rely on Mr Deshon's estimates of the costs appropriate to a home designed for wheel chair use. Fundamental to any assessment of Mr Deshon's opinions is an understanding of the basic assumptions on which he proceeds. He makes two such assumptions:

[118]

(a) That Ms Munzer is entitled to a certain standard of accommodation reflected in his concept of a standard project home and that whatever amenity is inherent in that design must be preserved.

[119]

[113] I am not satisfied that either assumption is warranted. As to the first assumption the size of the project dwelling, the number of bedrooms, and the general amenity of it when compared with the home that Ms Munzer actually enjoys remains unknown.

[120]

[114] Perhaps the clearest indication of the inappropriateness of that assumption is in Mr Deshon's views as to the 'minimum room/space requirements'. His project home against which he measured the adapted home was a four bedroom dwelling. By comparison Ms Munzer's home is a three bedroom dwelling. It was described by Ms Coles as a 'very modest shed-type construction, with concrete floors over which linoleum and vinyl tiles had been laid.'[75] I have no doubt that Mr Deshon's approach would result in Ms Munzer being provided with a significantly better quality home than she had enjoyed pre-accident.

[121]

[115] Another example is in relation to cupboard space. When Mr Deshon considers the appropriate cost for the adaptation of the kitchen he assumes that the cupboard space in the project home needs to be preserved in the adapted home. No consideration is given to whether that cupboard space in the project home is more or less than might be reasonable for Ms Munzer's needs. No consideration is given to whether that cupboard space is more or less than in her existing dwelling. Whether a wheel chair can in fact be manoeuvred in and around the hypothetical standard size kitchen is not explored. When challenged Mr Deshon spoke of preserving the amenity of the kitchen space - but I cannot judge what it is that is being given up, and what is left, to test the reasonableness of the claimed costs (a significant part of the amount in Item 2 of Schedule 6 - $39,075).

[122]

[116] As to the second assumption, it is simply not reflected in the daily life of the plaintiff. It is true that she uses a wheel chair when she tires in the afternoon but she is not wheel chair bound. On flat surfaces she can walk quite ably. I observed her to do so in the courtroom. The evidence that emerged concerning Ms Munzer's present trips to the local IGA and her driving of a 7 tonne Hino motor vehicle (admittedly a one-off event) reinforces this view of some preservation of a significant level of mobility.

[123]

[117] Thus the extent to which Ms Munzer really needs extra space in the home for a wheelchair - particularly to get around a bedroom or a garage - is debateable. Therefore the assumptions underpinning the estimate of capital costs concerning the increase in space within the hypothetical home are not made out.

[124]

[118] As I have mentioned the defendants relied on a report from Mr Gordon Leck, a quantity surveyor. He was critical of Mr Deshon's approach and costings.[76]

[125]

In my view some of Mr Leck's criticisms were valid. For example Mr Deshon allows $9,250 in order to build a small verandah and extend the entry porch. There is no evidence one way or the other as to whether the American barn-style home that Ms Munzer wishes to construct has within it such a porch. However, as Mr Leck points out, that is a common feature in modern homes.[77]

[126]

Even if one assumes a need to access the motor vehicle by way of a wheelchair from time to time then it is far from clear that any extension of either the existing garage or the model garage is required. As Mr Leck observes it is common today for there to be a double garage in a standard home. Such a garage would not require extending to enable wheelchair access.[78]

[127]

I am more concerned to ensure that in wet areas the plaintiff is protected. I can well envisage that the plaintiff may need to access the bathroom when sufficiently affected by pain to need a wheelchair. Whilst Mr Leck was critical of the need for the construction of a new en suite bathroom[79] I think that Mr Deshon's analysis was sound. It is not merely a question of removing a hob and providing a grab rail. Thus the costs envisaged in Mr Deshon's Schedule 6 provide a better guide than those in his Schedule 1.

[128]

Mr Deshon assumes that there will need to be an under eaves extension to provide sufficient space particularly in relation to the kitchen. Mr Leck doubted that a kitchen in a modern home would lack sufficient space for wheelchair access and hence could see no need to extend it. Mr Deshon's insistence on that need was premised on his assumption that the standard home that he envisaged set the appropriate basic minimum amenity appropriate. It seems to me that the plaintiff bears the onus of establishing what that area is and why that standard area is insufficient to meet her reasonable needs. In my view that onus was not discharged. Mr Leck conceded the need for an extension to the laundry.

[129]

In my view there is no need for an architect to supervise the adaptation of any dwelling.

[130]

Some combination of Mr Deshon's analysis in Schedule 1 of his report (which assumes ambulant use) with Schedule 6 is required, adjusted for some of the points made by Mr Leck.

[131]

Whilst the evidence is far from clear, if I was to base my decision on the evidence from Mr Deshon and Mr Leck I would allow the plaintiff $55,000 for the costs of adaptation of a hypothetical home to suit her needs. However that does not mean that the course that she has adopted is unreasonable even though it will entail greater cost. That is the price the defendant pays for injuring this plaintiff - whom the defendants must take as they find.

[132]

Nor is it relevant that in my view Ms Munzer will struggle to stay on her property. She plainly intends to try and it is possible that she will do so for the balance of her life. She may last only some years. In my view it is reasonable that she do try and do so.

[133]

[127] Ms Munzer seeks the costs of a hydrotherapy pool. The benefits were explained by Ms Coles. Certainly the plaintiff appreciated the relief that she obtained from the hydrotherapy exercises that she enjoyed before the travelling became too much for her. It should be noted that to get to a hydrotherapy pool the plaintiff would undertake a round trip of 130 kilometres.[80] She felt that any benefits from the treatment were outweighed by the impact on her of the journey. She was entirely reasonable in that view. The defendants accept the need for the construction of a hydrotherapy pool at her home.

[134]

The parties differ substantially as to the reasonable cost of that. Prior to the trial the defendants advanced the sum of $50,000 to the plaintiff to enable her to construct the pool at her home. The plaintiff obtained a quote for the supply and installation of an in-ground fibreglass swimming pool in the sum of $34,710.[81] It was not said that the pool acquired was inappropriate for her needs. It seems evident from the terms of the quote that the necessary devices to provide a heated pool are not included. Ms Munzer has not completed the installation of the pool as it turned out that she was required to complete an owner-builder course even though she personally did not intend to install the pool. The costs that she has incurred to date in respect of the pool appear to be in the order of about $17,000.[82]

[135]

Mr Deshon has also attempted an estimate of the cost of the construction of the hydrotherapy pool. He sets out his workings at Schedule 11 to his report.[83] He puts the total capital cost at $98,890. Mr Deshon's costings included the cost of a hoist. There is no evidence to support a need for a hoist.

[136]

As I understand the quote obtained by Ms Munzer, it would include all items mentioned by Mr Deshon save the items for pool heating, space heating and dehumidification that he costs at $22,000.

[137]

It seems to me that Ms Munzer has not put sufficient thought into the heating and dehumidification issues that Mr Deshon raised in his evidence. I will allow the $22,000 that Mr Deshon has suggested as being necessary. That will be in addition to the quote already obtained. For the capital cost of constructing and installing the hydrotherapy pool I will allow $56,710.

[138]

As Mr Deshon points out there will be running costs involved with the hydrotherapy pool. He assesses those costs at $3,850 per annum in his Schedule 11. That equates to $76 per week. There was no attack on the accuracy of his figures. I allow $60,000 for the running costs associated with the pool.

[139]

As well the pool will need to be maintained over the years. Mr Deshon has calculated a depreciation expense on an annual basis at $1,933. Those costs include the depreciation applicable to a hoist. Whilst Ms Munzer apparently has no present need for a hoist, it is clear that her condition will deteriorate over the years ahead and it is possible that that may become a necessity. As the capital costs I envisage are somewhat less than Mr Deshon assumed I will discount the figure slightly and I will allow $20,000 for this item.

[140]

[134] The parties are agreed that the plaintiff is entitled to damages for the amount of taxation paid by WorkCover Queensland in respect of the weekly benefits that she received. This sum total $10,476.

[141]

[135] Ms Munzer claims special damages that she has incurred in the sum of $5,845.34.[84] These expenses were not the subject of cross-examination. I will allow them in full.

[142]

WorkCover Queensland has incurred substantial expense on Ms Munzer's behalf. There is no dispute that those expenses form part of the damages in this case, however, counsel have calculated the amount owing differently. The evidence is contained in the Payment/Recovery History Report obtained from WorkCover Queensland.[85] My own calculation coincides with that of Mr Crow and I will therefore allow that amount, being $61,988.05.

[143]

Interest should be allowed on the special damages incurred by the plaintiff. I will allow interest on the whole amount at 3.14 per cent for four years - a total of $705.

[144]

[138] In summary I assess the damages as follows:

[145]

[139] There must be an adjustment to reflect the $50,000 advanced to the plaintiff.

[146]

[140] There will be judgment for the plaintiff in the sum of $1,249,459.63.

[147]

[2] Sch 3 s 1(a)

[148]

[3] Sch 3 s 2(2) and see the references to "the level of adverse impact" in ss 1(b), 3(2), 4(1), and 4(2).

[149]

[5] Sch 3 s 3 and s 4

[150]

[7] Sch 3 s 5 and see the dictionary for "adverse psychological reaction"

[151]

[8] T 35/10
[9] See exhibit 10 a p 9 para 18.
[10] See Dr Foote's opinions at exhibit 17.
[11] T33/25
[12] See p 13 of exhibit 16.
[13] See exhibit 6.
[14] See exhibit 18 at p 9 para 3.1 and pp 15-16 paras 5-6.
[15] See p 7 exhibit 39.
[16] See p 7 of exhibit 16.
[17] See Schedule 7 dictionary.
[18] See Clement v Backo [2006] QSC 129 per Dutney J for a similar situation where a 100% uplift was allowed
[19] See exhibit 1 para 23.
[20] See Schedule 3 section 9 of the regulation.
[21] See the note to Schedule 3 section 3(2).
[22] Rounding off as required - Schedule 3 section 14.
[23] See p 5 of exhibit 41.
[24] See exhibit 31.
[25] See p 3 of exhibit 41.
[26] T39/37.
[27] T41/1.
[28] T41/8 - the fourth anniversary of her death was a few weeks off at the date of the accident
[29] T48/10.
[30] Exhibit 32.
[31] See T49/55-50/5.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (151 paragraphs)

(a) That Ms Munzer is entitled to a certain standard of accommodation reflected in his concept of a standard project home and that whatever amenity is inherent in that design must be preserved.

Parties

Legislation Cited (2)

Cases Cited (3)