Munzer v Johnston & Anor [2009] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION: Munzer v Johnston & Anor [2009] QCA 190

PARTIES: CHERIE JOY MUNZER (plaintiff/respondent) v JAMES WILLIAM JOHNSTON (first defendant/first appellant) RACQ INSURANCE LTD (second defendant/second appellant)

FILE NO/S: Appeal No 8349 of 2008 / SC No 442 of 2007

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Rockhampton

DELIVERED ON: 14 July 2009

DELIVERED AT: Brisbane

HEARING DATE: 11 March 2009

JUDGE: McMurdo P, Chesterman JA and Douglas J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The appeal should be dismissed with costs to be assessed

CATCHWORDS: TORTS – NEGLIGENCE – GENERAL MATTERS – the respondent was injured in a motor vehicle accident with the first appellant – the respondent suffered serious physical injuries – the first appellant admitted liability but the quantum of damages was determined at trial – the primary judge awarded the respondent $1,299,459.63 – the appellants contend that the judge erred in the assessment of damages on a number of grounds – whether the judge erred in the assessment of damages / APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – OTHER CASES – the appellants contend that the judge erred in the assessment of damages on a number of grounds – whether any error would justify the appellate court's interference with the damages award / Campbell v Nangle (1985) 40 SASR 161, cited / Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41, cited / Harrison v Melhem (2008) Aust Torts Reports 81-951; [2008] NSWCA 67, considered / Hills v State of Queensland [2006] QSC 244, considered / Mount Isa Mines Limited v Peachey [1998] QCA 400, cited / Robinson v Riley [1971] 1 NSWLR 403, cited / Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72, cited / Weideck v Williams [1999] NSWCA 346, considered

COUNSEL: S C Williams QC with G C O'Driscoll for the appellant / M Grant-Taylor SC with G Crow for the respondents

SOLICITORS: Quinlan Miller & Treston Lawyers for the appellant / Chris Trevor & Associates for the respondent

1. McMURDO P: I would refuse this appeal. These are my reasons.

2. Cherie Joy Munzer¹ was injured in a motor vehicle accident at about 6.30am on 17 September 2004 on the Dawson Highway, Calliope in central Queensland. Ms Munzer was driving her Holden Commodore on her way to work when a Land Rover travelling in the opposite direction, driven by the first appellant,² James William Johnston, pulled out from behind a school bus onto the incorrect side of the road directly into the pathway of Ms Munzer's car. In the resulting collision, she suffered serious physical injuries as well as a chronic adjustment disorder with depressed mood. She brought an action for damages in negligence against Mr Johnston and the second appellant,³ RACQ Insurance Limited, with whom Mr Johnston had compulsory third party insurance. The appellants admitted liability but the quantum of Ms Munzer's damages was determined at a two day trial. On 1 August 2008 the primary judge assessed her damages at $1,299,459.63. This amount was adjusted to reflect the appellants' pre-trial advance to Ms Munzer of $50,000 so that she obtained judgment for $1,249,459.63, together with an order that the second appellant pay her costs on the indemnity basis.

3. The appellants appeal from that decision contending that the judge erred in awarding the capital cost of the construction of an American-style barn; awarding the cost of a hydrotherapy pool inside the barn when an outdoor heated pool reasonably met Ms Munzer's needs; failing to give sufficient weight to Ms Munzer's drug taking before the accident and its effect on her employment in determining the appropriate discount for future economic loss; and determining the level and extent of care Ms Munzer required for her future needs.

Background facts

4. The following factual matters do not seem to be in dispute. Ms Munzer was 44 at the time of the accident and 48 at trial. She and her former partner, Mr Martin Pearce, had two children. Tragically, their daughter, Jaime, was killed in a motor vehicle accident in 2000. Their son, Dwayne, was 24 years old at trial and was the father of a two year old boy.

5. Ms Munzer had a conviction in 1995 for the possession of cannabis. Her blood was analysed after the motor vehicle accident. It contained both cannabis and methylamphetamine. The level of tetrahydrocannabinol (0.002mg/kg) indicated recent use of cannabis, most likely in the previous few hours. The level of methylamphetamine (0.66mg/kg) was extremely high. It was likely to be associated with "irrational behaviour, poor concentration, anxiety and restlessness" and to adversely affect a person's ability to drive a car.⁴ She was a regular user of marijuana before the accident and normally had two cones each evening, although her consumption varied.⁵ Ms Munzer took the methylamphetamine, which someone had given to her, as the anniversary of her daughter's death was approaching. She had no recollection of having used methylamphetamine before. But she told her lawyers, in preparing her guilty plea to driving whilst under the influence of drugs, that she was an occasional user of methylamphetamine.

6. Ms Munzer had a solid work history in unskilled, manual fields, although she did not work for some time after her daughter's death. She was employed by Ms Paulette Lindley as a machinery operator and labourer for almost two years before the accident. Ms Lindley had never noticed that Ms Munzer was affected by drugs in the course of her employment. Ms Lindley was an experienced employer, conscious of her responsibilities. She would dismiss an employee whom she thought was affected by drugs at work but she would offer a second chance to a good employee like Ms Munzer.⁶

7. Ms Munzer and Mr Pearce had separated almost 12 months before the accident but, as an inheritance for their son, they kept their joint interest in a rural property of about 160 acres. This property was on Catfish Road about 20 kilometres from Calliope, a town about 15 to 20 kilometres from Gladstone.⁷

8. The property was accessed by a two kilometre unsealed road with a steep unsealed track leading to the house site. The home was a modest three bedroom shed-type construction which she and Mr Pearce had built over some years. The lounge level was about 15 centimetres higher than the kitchen level and Ms Munzer could not move her wheelchair between these two levels. She had difficulty accessing the very small walk-in pantry in the kitchen. There was a step from the kitchen to the concreted outside area with clothes lines. The bath in the internal bathroom had been raised about 45 centimetres to wash their dogs. Ms Munzer had used a milk crate to climb into the bath but was unable to use the bath since the accident. The toilet was in a semi-detached shed near the front door. After the accident she had to negotiate a rough concrete ramp to use the toilet shed which Mr Pearce had altered to accommodate a modest bath and shower. This arrangement remained far from ideal for her. She often used the wheelchair to manoeuvre herself around the dwelling but the room to manoeuvre was very limited. The area around the house was stony gravel, which Ms Munzer could walk on, but with difficulty. Ms Munzer described the house as having two levels inside and three levels on the verandah.

The damages for home modifications

11. At trial, Ms Munzer was still living in the house on the Catfish Road property. It was common ground at the trial and in this appeal that Ms Munzer was entitled to some home modification costs to meet her changed needs resulting from the injuries she received in the accident.

The primary judge's approach

12. The judge's approach to this head of damage was as follows. Ms Munzer's case as presented by her lawyers at trial was to prove the cost of altering an existing hypothetical dwelling to suit her disabilities or, in the alternative, the additional cost when comparing a purpose-built modified house to a hypothetical project house. Her lawyers relied on a report from an architect experienced in the provision of accommodation for the disabled, Mr John Deshon, who estimated these costs, assuming adaptation for wheelchair use, at about $165,000.¹⁰ There was no evidence at trial of the cost of modifying the existing dwelling at the Catfish Road property. The judge surmised, with ample justification, that "adapting her three level home was not really feasible".¹¹

13. Despite Mr Deshon's evidence, Ms Munzer made it plain in her evidence that she did not intend to erect an architect-designed or project home modified for her disabilities.¹² She was determined to continue to live on the Catfish Road property. She enjoyed this rural lifestyle and to require her to move into a town like Gladstone would be a significant hardship.¹³ She had purchased an American barn‑style shed in kit form which she intended to have built on her land. At the time of the trial, she had already expended nearly $70,000 on this project. No evidence was led that when constructed this barn would not meet Ms Munzer's post-accident needs.¹⁴

14. The judge noted that the true measure of Ms Munzer's loss was the cost of adapting her present home or the construction of a more suitable one on the property. Although it might be cheaper for the appellants were she to live elsewhere, the tortfeasor who had caused her injuries could not dictate where she must live.¹⁵ The appellants led no evidence that Ms Munzer's proposal to live on the property was unreasonable.¹⁶

15. The appellants at trial accepted the need for the construction of a hydrotherapy pool at Ms Munzer's home.¹⁷ Ms Munzer intended that the barn would both provide her with suitable single level living accommodation and also house the hydrotherapy pool. By the time of the trial she had spent nearly $70,000 on the barn. No evidence was led at the trial as to the costs of constructing it. Its purchase and construction would be substantially less than the $165,000 estimated by Mr Deshon as the cost of altering a hypothetical existing dwelling. Ms Munzer's injuries resulting from the accident required her to have a dwelling on one level with appropriate adaptation to enable easy access; some protection of the walls from wheelchair collisions; some adaptation to the standard bathroom to enable wheelchair access; some adaptation to the kitchen to enable her to access cupboards and to sit when tired; and allowance for items numbered 9 to 15 (totalling $13,950) in Mr Deshon's Schedule 6. The judge noted that there was no evidence as to whether Ms Munzer's barn would meet these basic requirements but his Honour assumed that it would, or at least could easily be adapted to do so. His Honour allowed the $13,950 in addition to the $70,000 odd costs already incurred by Ms Munzer in respect of the barn. Although there was no evidence as to the cost of constructing the barn, his Honour allowed the modest amount of $8,000 (four weeks x 40 hours x $50 per hour) and concluded that a total award of $90,000 should be allowed under this head of damages. This consisted of about $70,000 already incurred in purchasing the barn in kit form and related expenses; $13,950 for the further needed modifications; and $8,000 for construction, rounded down to $90,000. His Honour considered that this amount fairly reflected the actual costs that Ms Munzer would reasonably incur in providing appropriate accommodation adapted for her accident-caused disabilities at the property where she now wishes to live.

Discussion

17. The appellants contended that Ms Munzer did not prove their obligation to pay the damages of $90,000 awarded by his Honour for the purchase, erection and modification of the barn. Ms Munzer was not entitled to a capital windfall for her new home. The damages should have been limited to the amount of home modifications referred to by the judge as totalling $13,950. They emphasise that at the time of the accident she was living in rental accommodation at Calliope and separated from Mr Pearce.

18. It is immediately clear that the amount of $13,950 referred to by his Honour was not an assessment of the full costs of modifying a notional house, or the existing house on the property, to cope with Ms Munzer's injuries. The amount of $13,950 was for the particular adaptations specified in Mr Deshon's report which would be needed in addition to the newly constructed barn.²⁷ The amount referred to by his Honour as an alternative basis of assessing damages under this heading (namely, the cost of adapting a hypothetical home to suit Ms Munzer's needs) was $55,000. I do not apprehend that the appellants have challenged the assessment of the amount of $55,000. It was well open on the evidence and much more moderate than the $165,000 estimated by Mr Deshon. The real argument under this ground of appeal is not whether the judge should have awarded the damages for the cost of the barn determined at $90,000 or the home modification costs of $13,950. It is whether the judge should have awarded damages for the cost of the barn determined at $90,000 or the modification costs of $55,000. If damages for the cost of the barn were rightly awarded, the next question is whether there was evidence to support the award of $90,000.

19. In determining these issues, the New South Wales Court of Appeal decision of Weideck v Williams²⁸ is of relevance. The court relying on Todorovic v Waller,²⁹ observed that the principle to be applied when considering the cost of suitable accommodation to meet the needs of injured plaintiffs is that the assessment should, as far as money can do, place plaintiffs in the same position as if they had not sustained the injuries. The court rejected the notion of any fixed principle that the cost of a notional basic home is necessarily excluded from an award of damages, adding:

"The award must take into account the facts of the particular case. In some cases, it will be anticipated that the injured plaintiff will live in an institution. In those cases, the cost of the purchase of a home is irrelevant. In some cases, it will be anticipated that the injured plaintiff will continue to live in his or her existing home. In such a case, only the cost of modifying the home will be taken into account. In other cases, it will be anticipated that the injured plaintiff must move from an existing home to another home more suitable to the plaintiff in his or her injured state. In those cases, the standard of the accommodation in which the plaintiff was accustomed to live will be a relevant factor. In other cases, if the plaintiff has lived prior to the injury, not in his or her own home, but in a boarding house or a caravan or in rented accommodation, the award of damages must take this into account."³⁰

Mr Williams had lived in a caravan before being injured by the tortfeasor and it was likely he would have continued to do so but for the injuries. The court held that, on the facts apposite there, Mr Williams was not entitled to benefit from the capital asset of a purchased home which, apart from the accident, he would not have acquired.³¹

20. Ms Munzer's entitlement to damages for home modifications is limited to the additional costs reasonably necessarily incurred as a result of her accident-related disability. If she did not have a house before the accident and after the accident built a modified house to meet her disabilities, she could not necessarily claim as damages the ordinary cost of housing that she would have incurred if uninjured. But Ms Munzer did have a home before the accident, although she was not then living in it. She moved back into her home, apparently because this was the most economical accommodation in the circumstances. Even so, her home had become unsuitable because of her disabilities and it probably could not be satisfactorily modified. It was therefore reasonable for her to take the utilitarian cost-effective approach of building a one level barn, with the further modifications for her disabilities which were suggested by Mr Deshon and accepted by his Honour as reasonably necessary.³²

21. In some instances, defendants are given credit in damages awarded under this heading for the increased capital value of modified or purpose-built housing. But modifications or even purpose built houses do not invariably increase the capital value of a property. Sometimes the full costs of the modified or new house should be allowed without any discount for capital appreciation. Defendants carry the evidentiary onus to prove that their damages should be modified because of an increase in capital value: Campbell v Nangle.³³ The appellants called no such evidence at trial. This may have been because Ms Munzer's case was conducted on the basis of the costs of modifications to a notional home. The appellants were, however, well aware of her plans to build a barn to provide her both with accommodation and to house a hydrotherapy pool.³⁴ The appellants did not prove that the construction of the barn and pool provided a capital appreciation to the property Ms Munzer owned jointly with Mr Pearce.

22. The appellants contend that Ms Munzer's position was like the plaintiff in Weideck v Williams because at the time of the accident, like Mr Williams, she was living at Calliope and not in her own home. The difficulty with that contention is that it was not explored at trial by any party as to whether at the time of the accident Ms Munzer intended to permanently live in Calliope or elsewhere, or whether her Calliope accommodation was a temporary arrangement when she and Mr Pearce were first estranged. Unlike Mr Williams she owned a home at the time of the accident. This home had become manifestly unsuitable for her because of the accident. The judge accepted that Ms Munzer and Mr Pearce had ended their de facto relationship about 12 months before the accident. But his Honour also noted that they kept their joint interest in the Catfish Road property where they were living at trial, principally because they wished to preserve it for their son who had recently become a father. After the accident they both lived in the house at the property, although in separate rooms, and Mr Pearce cared for and assisted Ms Munzer. As the appellants emphasise, his Honour, in the context of assessing Ms Munzer's future care needs, considered it highly likely that Mr Pearce would, at some future time, leave the property so that the prospects of Ms Munzer remaining on the property in the longer term were unlikely. His Honour also found that Ms Munzer was reasonable in her desire to live on the property and that she may live there for the balance of her life. This case was very different from the factual situation in where Mr Williams did not own a home before he was injured by the tortfeasor.

[23] The primary judge's method of assessing the costs of Ms Munzer's modified accommodation needs was somewhat unorthodox. It departed from the submissions of the parties at trial, but, with one exception, it was consistent with the evidence at trial. That exception was that there was no evidence as to the cost of constructing the barn. His Honour simply made a "guesstimate" of those construction costs of $8,000. The judge rightly recognised that Ms Munzer was entitled to choose to live on the Catfish property that she and Mr Pearce jointly owned. The judge assessed the costs of modifying a notional home for her disabilities at $55,000 but allowed the higher amount of $90,000 to purchase, erect and modify a barn to meet Ms Munzer's disabilities resulting from the accident. It is significant that the barn was also to house the hydrotherapy pool. It was common ground that Ms Munzer needed the pool. A tendered plan of the barn showed that one-third of its internal floor plan was for the pool. Whether the barn was reasonably necessary to accommodate Ms Munzer's post-accident needs, as explained in the passage I have set out in Weideck v Williams,³⁸ to some extent turns on the outcome of the next ground of appeal, whether the hydrotherapy pool should have been housed inside the barn. I will return to this ground of appeal after determining the merits of the next.

The cost of a hydrotherapy pool inside the barn

The primary judge's approach

[24] The primary judge noted that it was common ground that Ms Munzer needed a hydrotherapy pool constructed at her home.³⁹ His Honour assessed the damages in relation to the hydrotherapy pool in this way. The appellants advanced Ms Munzer $50,000 before the trial to enable her to construct a pool at her home. Ms Munzer obtained a quote for the supply and installation of an unheated, fibreglass swimming pool for $34,710. She was unable to complete the installation of the pool because she was required by the local council to complete an owner/builder course. By the time of the trial, she had incurred further costs of $17,000. Ms Munzer's quote for the pool included all items that her architect, Mr Deshon, considered necessary, save for pool heating, space heating and dehumidification which Mr Deshon costed at $22,000. His Honour therefore allowed $56,710 for constructing and installing the hydrotherapy pool. His Honour accepted Mr Deshon's unchallenged evidence that running costs involved with the hydrotherapy pool equated to $76 per week or $3,850 per year and so allowed $60,000 for future running costs of the pool over 40 years. Mr Deshon also calculated an annual depreciation expense on the pool of $1,933, which included depreciation on a hoist. The judge considered Ms Munzer did not presently need a hoist, but because of her expected deterioration in health over future years, it was possible that the hoist may become necessary at some point. The judge allowed $20,000 for depreciation over Ms Munzer's lifetime. In total his Honour allowed $136,710 for costs associated with the hydrotherapy pool.

Discussion

[25] As I apprehend it, the appellants now accept that a heated pool was reasonable for Ms Munzer's needs but they contend that this should have been limited to an outside heated pool. The appellants suggest that the more modest approach taken to the costs of a hydrotherapy pool in Hills v State of Queensland⁴⁰ was also apposite in this case. The judge found it was likely that Ms Munzer would leave the property and return to where there were better facilities, such as in Gladstone where there was a hydrotherapy pool. The appellants further contend that Ms Munzer should not be compensated for a lengthy period for the running costs of the pool as she was likely to leave the property. During the oral submissions at the hearing of this appeal, this became the appellants' primary contention as to this ground of appeal.

[26] The appellants' abandonment of their written contention, that the costs of having the heated hydrotherapy pool inside the barn were not reasonable, was prudent. There was ample evidence that Ms Munzer would benefit from a heated hydrotherapy pool. Mr Deshon gave unchallenged evidence that the running costs of an outdoor heated hydrotherapy pool would "go through the roof because you lose … heat off the pool and secondly differential of air temperature and water temperature in the winter is probably too great to make the thing practical."⁴¹ There was no doubt on the evidence at trial that enclosing the hydrotherapy pool was the only cost-effective method of heating the hydrotherapy pool.

[27] The evidence as to the hydrotherapy required by the plaintiff in Hills was quite different to the evidence in the present case. Up until trial, Mr Hills had had no hydrotherapy, notwithstanding the availability of an aquatic centre with hydrotherapy facilities nearby and the small costs involved in using it.⁴² The uncontroversial evidence in this case was that Ms Munzer obtained pain relief and therapeutic exercise through a heated hydrotherapy pool. The approach to a hydrotherapy pool quite properly taken in Hills on the evidence in that case is of no assistance to the appellants in this very different case.

[28] The appellants' argument that the judge did not take into account the likelihood of Ms Munzer leaving the Catfish Road property in assessing the cost of the hydrotherapy pool is also misguided. Ms Munzer's uncontested evidence was that she found using the hydrotherapy facilities at Gladstone uncomfortable in that she became very cold between the time she got out of the water and was taken to the showers to warm up. By the time she was showered, her joints were aching. The judge was entitled to find that she needed an indoor hydrotherapy pool at her own home. The judge thought it likely that Ms Munzer would, in time, leave the property and return to a town or city closer to facilities. But if this came to pass, she will still benefit from a home with heated hydrotherapy facilities. The judge calculated the running costs of the pool in accordance with the unchallenged evidence of Mr Deshon, and then discounted these costs at five per cent per year over 40 years (x 918) to reach the sum of $69,768. His Honour then further discounted this amount to $60,000. This approach was appropriate on the evidence.

[29] His Honour's award for depreciation of the hydrotherapy pool was calculated on the unchallenged evidence from Mr Deshon that depreciation was $1,933 per year, or $37 per week. This amount, discounted at five percent per annum over 40 years (x 918) amounts to $33,966. The judge was conscious that, on his findings, for much of this period, Ms Munzer would not need a hoist. He recognised however, that she may need a hoist at some future time. For that reason, the judge very significantly discounted the amount of $33,966 to $20,000. Again, this approach was open on the evidence.

[30] It follows that this ground of appeal is without substance. The judge was entitled to find that Ms Munzer needed an indoor heated hydrotherapy pool and to assess damages for it in the amount of $136,710.

[31] I will return now to the ground of appeal concerning the damages for home modifications. It is obvious that the barn was to serve, not only as a single level home for Ms Munzer in which she could optimally manage her post-accident injuries, but also to house the heated hydrotherapy pool she needed in her treatment. It was not feasible to have a heated outdoor hydrotherapy pool. Her pre-accident multi-level home was manifestly unsuitable for her post-accident needs and could not be adequately modified. She needed an indoor, heated hydrotherapy pool to assist in her treatment. The barn was a practical and comparatively inexpensive answer to her problems and allowed her to have her hydrotherapy treatment and live on the one level. In the unusual facts of this case, I consider that the judge was entitled, consistent with the approach taken in Weideck v Williams, to allow the cost of the purchase of the barn and its modification. The appellants did not call evidence to establish any increased capital value resulting from the construction of the barn. It was described as a "shed" and did not seem to be an especially aesthetically pleasing structure. It was to be a primarily functional facility aimed at meeting Ms Munzer's specific and unusual post-accident needs. It would probably have very limited appeal to members of the general community. It is possible that the construction of this barn provided no capital appreciation to the value of the land.

[32] The appellants are, however, correct that there was no evidence led at trial of the building costs associated with constructing the barn, which was delivered to Ms Munzer in kit form. The judge's award of $8,000 for its construction, in the absence of such evidence, is questionable. Clearly, it would have cost something to construct. It is true that the $8,000 awarded was, on any view, extremely modest. But trials are conducted on evidence and judges should not make "guesstimates", even modest ones, in the complete absence of evidence.

[33] But this error does not necessarily mean the appeal must be allowed. As Mason P explained in Harrison v Melhem,⁴³ citing Robinson v Riley,⁴⁴ an appellate court should decline to interfere with individual components of a damages award, unless satisfied that the award as a whole is unduly high or unduly low. In the context of the overall award received by Ms Munzer of $1,299.459.63; the amount of $8,000 is so small that, unless the appellants were successful in their other attempts to challenge the damages award, it would not justify this Court's interference: see Elford v FAI General Insurance Company Limited⁴⁵ and Mount Isa Mines Limited v Peachey.⁴⁶

The evidence of Ms Munzer's prior drug taking and the effects on her employment and future economic loss award

The primary judge's approach

[34] The judge's findings as to Ms Munzer's drug use have been set out earlier in these reasons.⁴⁷ The judge found Ms Munzer's consumption of methylamphetamine shortly before the accident was a "one-off event".⁴⁸ The judge concluded that her consumption of cannabis would not impact on her employment which she plainly loved. In any case, her employer, who regarded her highly, would have offered her a second chance, and Ms Munzer would have taken it. For that reason, the judge considered that Ms Munzer's drug use warranted a modest increase in the discount of her award for future economic loss, from the conventional 15 per cent to 20 per cent.⁴⁹

Discussion

[35] The appellants contend the judge insufficiently discounted Ms Munzer's future economic loss award primarily because of the potential effect of her illicit drug‑taking on her employment prospects.

[36] There was no evidence that Ms Munzer was a heavy user of methylamphetamine. In the context of this case, whether she used it only once or, as she apparently told her lawyers, on a couple of other occasions, was of no significance. She was a regular user of cannabis. She had a conviction in 1995 for possession of cannabis. It is true, as the appellants contend, that Ms Munzer did not stop using cannabis after that conviction. But she had no subsequent drug convictions and her use of cannabis was generally limited to one or two cones per night. Sometimes she took more. Sometimes she had none for a week or so. The evidence does not suggest she was a heavy cannabis user or that it effected her ability to function.⁵⁰ Her employer, Ms Lindley, took an appropriately firm stance on the consumption of drugs by her employees because they were responsible for driving and using mechanical equipment. Ms Lindley was, however, willing to give good employees, like Ms Munzer, a second chance. Ms Munzer's work history was more than satisfactory. His Honour was not compelled to conclude from the fact that Ms Munzer continued to use cannabis after her 1995 conviction that she would not have taken Ms Lindley's notional second chance to ensure she was drug-free at work. The appellants have not demonstrated that his Honour's reasoning or findings under the heading of damages relevant to this ground of appeal were in any way flawed. This ground of appeal is without substance.

The allowance for future care

The primary judge's approach

[37] The primary judge's approach to this heading of damage was as follows. At trial, the appellants contended that Ms Munzer was entitled to only 10 hours of future care each week. The contention on behalf of Ms Munzer was that she needed 35 hours care per week.

[38] Prior to and at the time of the trial, Mr Pearce had provided and was providing Ms Munzer with significant and much-needed care. The judge noted Mr Pearce's strong sense of obligation to Ms Munzer. Although they were no longer in a de facto relationship they were committed to preserving their property for their son. Mr Pearce was not content with their present domestic arrangement and although Ms Munzer considered they could share a comfortable retirement together, that was not his plan. The Catfish Road property comprised a mountainous 160 acres. It was Mr Pearce's presence that had made it feasible for Ms Munzer to live there in her injured state.

[39] Once the home modifications were made, her need for care would be reduced to some extent. On the other hand, Ms Munzer's health was likely to deteriorate in the future with osteoarthritic degenerative change. Her right knee would require a total knee replacement when she is aged between 55 and 60. There was a 50 per cent probability that her left knee would also deteriorate to require a total knee replacement. Surgery might restore an increased level of functionality but she would still have a very considerable impairment of function. In the period following this surgery, she would have a temporary increased need of one to two hours per day. If Mr Pearce left, much of the property maintenance presently done by him would need to be done by someone else.

[40] There was a reasonably good chance that, at some time in the future, Ms Munzer would relocate into a home closer to facilities and better set up for her disabilities. Based on the evidence of occupational therapist, Ms Helen Coles, Ms Munzer's need for care and assistance would then reduce from two to two and a half hours per day to about one and a half to two hours per day. Ms Munzer would still need assistance to maintain her home but this would average three to four hours per month rather than per week.⁵¹

[41] Ms Munzer's physical condition is virtually certain to deteriorate. Mr Pearce is highly likely to leave their shared property and it is unlikely that Ms Munzer will remain on the property in the longer term.⁵² Guided by Ms Coles' expertise, the judge adopted 15 hours per week as her long term average requirement for care. On the assumption that Ms Munzer relocated to a town in an optimally designed dwelling close to facilities, Ms Coles estimated Ms Munzer's needs as between 11 and 15 hours per week. Taking into account the likely deterioration in Ms Munzer's condition in the future, the judge accepted the high end of Ms Coles' range as appropriate. His Honour observed that something in the vicinity of 25 hours of care per week would be required if she persisted in her current location without the assistance of Mr Pearce performing necessary property maintenance tasks in the present unmodified house. With an appropriate dwelling, that level would reduce to between 17 and 20 hours per week without allowance for the likely future degeneration in her condition.

[42] The agreed rate of care was $26 per hour. The judge ultimately allowed 15 hours per week for future care over 40 years, discounted on the five per cent tables (x 918) to $358,000.⁵³

Discussion

[43] The appellants now contend that Ms Munzer's future care needs should have been assessed at 10.5 hours per week. Their argument seems to be primarily based on Ms Coles' evidence that, with the use of hydrotherapy and some weight reduction, Ms Munzer could maintain or slightly improve her present functionality. They emphasise that she could do a range of tasks and on at least one occasion drove Mr Pearce's seven tonne truck.

[44] The aspect of Ms Coles' evidence on which the appellants rely related only to the positive likely effects on Ms Munzer of exercise in her own hydrotherapy pool. Ms Coles added that hydrotherapy would maintain Ms Munzer's muscle strength if she became more wheelchair bound. Nothing in Ms Coles' evidence, or any other evidence, was inconsistent with his Honour's relevant findings as to Ms Munzer's need for future care.

[45] Ms Munzer did on one occasion drive Mr Pearce's seven tonne truck after the accident. She was also able to perform a broad range of household tasks in her own time. Her single episode of truck driving demonstrated her courage, grit and determination, rather than the extent of her post-accident disabilities, or, indeed, her good sense. There is no doubt that she suffered debilitating injuries in the accident which will generally increase over time. The evidence suggested that she has a strong, independent mind and spirit, and she tries hard to manage alone. Despite her positive attitude, her injuries are such that she will plainly need a significant degree of assistance in the future. Ms Coles' evidence was that Ms Munzer's needs would increase by one to two hours per day for six month periods following surgery and there could be as many as three or four of these episodes of surgery. Ms Coles' uncontradicted evidence was consistent with the judge's assessment. The appellants have not demonstrated that his Honour's approach to Ms Munzer's future care needs was flawed. This ground of appeal also fails.

Conclusion

[46] Even accepting that, in the absence of any evidence, his Honour erred in making a moderate "guesstimate" of $8,000, for the cost of constructing the barn, that amount is so modest in the context of the total award of damages of $1,249,459.63, that it does not justify this Court's intervention.⁵⁴

[47] The appeal should be dismissed with costs to be assessed.

[48] CHESTERMAN JA: The assessment of damages, from which this appeal was brought, was difficult as the President’s reasons demonstrate. Because of her injuries the respondent needed a new home, or a modified home, in which she could live, more or less comfortably, having regard to her limited mobility and agility. The evidence led in support of that head of damage was wholly artificial. The respondent proved the cost of providing appropriate accommodation which she disavowed she would ever acquire or use.

[49] The learned trial judge faced the perplexity of a plaintiff with a demonstrated and substantial need for specialised accommodation and no, or very little, helpful evidence of the cost of providing for that need with respect to the particular mode of life the respondent indicated would be hers.

[50] The appellant’s submission, that no amount should be allowed for this head of damage because the respondent had not proved the quantum of damages necessary to address her need but rather the quantum of a hypothetical need, is unattractive.

[51] The trial judge was obliged to do the best he could with the materials at hand to make an assessment of damages to address the respondent’s demonstrated incapacity for living in her former home.

[52] I agree with the President, for the reasons given by her Honour, that the assessment made by the learned trial judge was, in the circumstances, a proper exercise of the power of quantification.

[53] I also agree with the President as to the other points raised in the appeal, and concur with the order proposed by the President.

[54] DOUGLAS J: I agree with the reasons of the President and Chesterman JA and with the order proposed by the President.

Footnotes

1. The plaintiff in the trial and the respondent in this appeal. ↩

2. The first defendant in the trial. ↩

3. The second defendant in the trial. ↩

4. Munzer v Johnston & Anor [2008] QSC 162 at [38] & [39]. ↩

5. Munzer v Johnston & Anor [2008] QSC 162 at [40]. ↩

6. Munzer v Johnston & Anor [2008] QSC 162 at [44]. ↩

7. Munzer v Johnston & Anor [2008] QSC 162 at [76]. ↩

8. Report of occupational therapist, Ms Helen Coles, 18 July 2008, pages 9 and 10 (Exhibit 19). ↩

9. Quantum statement, page 2 at [4] (Exhibit 1). ↩

10. Munzer v Johnston & Anor [2008] QSC 162 at [102]. ↩

11. Munzer v Johnston & Anor [2008] QSC 162 at [101]. ↩

12. Munzer v Johnston & Anor [2008] QSC 162 at [103]. ↩

13. Munzer v Johnston & Anor [2008] QSC 162 at [99].