Munsie v Munsie

[2012] NSWSC 479

Supreme Court

New South Wales

Medium Neutral Citation:

Munsie v Munsie [2012] NSWSC 479

Hearing dates:

14/05/2012

Decision date:

14 May 2012

Jurisdiction:

Civil

Before:

Garling J

Decision:

(1) Pursuant to s 82(5) of the Civil Procedure Act 2005 the defendant to make a payment of $1.5 million to the plaintiff.

(2) Defendant to pay the plaintiff's costs of the application.

Catchwords:

PRACTICE AND PROCEDURE - Order for interim payment of damages - Plaintiff requires new accommodation - Motor accident in Queensland - Damages assessed by Queensland law - Chapter 5 of Motor Accidents Compensation Act 1999 does not apply - Order not limited to established need

Legislation Cited:

Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
Uniform Civil Procedure Rules 2005

Cases Cited:

Forster v Hunter New England Area Health Service [2010] NSWCA 106; 77 NSWLR 495
John Pfeiffer Pty Ltd v Rogerson [2003] HCA 36; 203 CLR 503
Sargent v South Western Area Health Service [2010] NSWSC 1506

Category:

Principal judgment

Parties:

Kerry Rosalind Munsie
Gregory Paul Munsie

Representation:

B Gross QC (plaintiff)
K Rewell SC (defendant)
Baker & Edmunds (plaintiff)
Moray & Agnew (defendant)

File Number(s):

2011/403513

EX TEMPORE Judgment

1. The plaintiff, Kerry Munsie, applies by notice of motion filed 18 April 2012 for an order for the payment of part of the damages to which she claims she is entitled.

Facts

1. On 14 October 2009 Mrs Munsie was severely injured in a motor vehicle accident which occurred on the Bruce Highway north of Mackay in Queensland. She was a passenger in a motor vehicle that left the road and overturned. She is a C6 incomplete tetraplegic.

1. At the time of her accident, she was working as an organ tissue donor coordinator with one of the Area Health Services in Sydney. She lived with her husband and her children in her home, which they were buying at Loftus. The family was well settled there. The children went to school in the local area. Her husband worked and had, for more than 20 years, worked at a school that was within easy driving distance.

1. The family home is now unsuitable for Mrs Munsie to live in without very significant alteration or perhaps reconstruction. The family have taken alternative rental accommodation at Miranda. The Miranda house is also largely unsuitable to accommodate the plaintiff. It is also a temporary arrangement. Living at Miranda has resulted in a significant disruption to the lives of, and the daily routine of, the Munsie family. This needs to come to an end as soon as is possible.

1. As well, although the defendant's insurer has been paying expenses, Mrs Munsie claims she has commenced a rehabilitation program called "Walk On", with an organisation called Spinal Cord Injuries Australia. Although she has been engaged in that program for over 12 months, for some reason that is unexplained in the evidence, the defendant's insurer has not until very recently made payments for the costs of the program.

1. Because of her injuries Mrs Munsie has not been able to return to work. This loss of income has placed Mrs Munsie and her family in a difficult financial position. Her evidence is that it is a daily struggle to make ends meet.

The Proceedings in this Court

1. On 9 December 2011, Mrs Munsie commenced proceedings in this Court by the filing of a statement of claim. At the same time as required by the Uniform Civil Procedure Rules 2005, she filed a statement of particulars that set out in detail, and by reference to expert reports, the nature and extent of her injuries, and the particulars of her claim.

1. On 7 March 2012, the defendant filed a defence. In that defence, the defendant admitted that the accident happened as the plaintiff pleaded, he also admitted that the defendant was in breach of the duty which he owed and that the plaintiff suffered injury, loss and damage. The defence put the nature and extent of the plaintiff's injury, loss and damage in issue.

1. It pleaded that the damages should be assessed in accordance with the law of Queensland. However, it did not plead any specific provisions of the Queensland legislation. I am informed by counsel for the defendant and accept that the statutory provisions in Queensland would mean that at least the amount recoverable for non-economic loss was significantly lower than for claims under the equivalent New South Wales legislation, the Motor Accidents Compensation Act 1999. He also told me that under Queensland law, a claimant is not entitled to recover any additional costs of childcare occasioned by reason of their injuries.

1. The proceedings have been fixed for a final hearing for a seven day period commencing 4 February 2013.

The Legislation

1. Section 82 of the Civil Procedure Act 2005 permits the Court to make an order that a defendant make

"one or more payments to the plaintiff of part of the damages sought to be recovered".

1. There are some conditions to the making of such an order. They include that the defendant has admitted liability. This has occurred here: see s 82(3)(a) of the Civil Procedure Act.

1. If the defendant satisfies the Court that it is not insured and that an order would cause undue hardship then a Court cannot make an order. Here the defendant is insured under a compulsory third party insurance policy so there is no bar to the making of an order.

1. Section 82(5) of the Civil Procedure Act is the principal operative provision with which this application is concerned. It provides:

"The Court may order a defendant to make one or more payments of such amounts as it thinks just, but not exceeding a reasonable proportion of the damages that, in the court's opinion are likely to be recovered by the plaintiff."

1. Section 82(7) limits the capacity of the Court to make such an order in particular proceedings, namely proceedings for the recovery of damages to which Ch 5 of the Motor Accidents Compensation Act applies. In those circumstances, an order can only be made for payment:

"...of part of the damages for economic loss sought to be recovered in the proceedings and only if the court is satisfied that the plaintiff would suffer financial hardship if such a payment were not made."

1. In my opinion s 82(7) of the Civil Procedure Act does not apply here. That is because this is not a claim to which Ch 5 of the Motor Accidents Compensation Act applies. The reason, in short, for this is that since the accident happened in Queensland damages will be assessed by the law of Queensland: see John Pfeiffer Pty Ltd v Rogerson [2003] HCA 36; 203 CLR 503.

Discernment

1. The evidence in support of the plaintiff's application is extensive. It establishes

(a)   the nature and extent of the plaintiff's injuries. She is confined to a wheelchair, unable to work, requires ongoing personal care and domestic assistance and ongoing rehabilitation and treatment;

(b)   the unsatisfactory nature of the plaintiff's present living arrangements;

(c)   the financial stress under which the plaintiff and her family live; and

(d)   that based upon an expert actuary's report the likely quantum of the plaintiff's claim assuming full recovery of all matters claimed is in excess of $10 million.

1. The defendant's evidence deals with the efforts that have so far been made by the defendant to accommodate the plaintiff's needs. The defendant's evidence accepts that the plaintiff's home is unsuitable for her to occupy. It also accepts that there is a requirement for the plaintiff to be accommodated in new accommodation. It sets out the extent to which the defendant has gone to pay for expenses, and to advance moneys, as requested by the plaintiff. It does note that in very recent times an offer was made for a further sum of money, which would include provision for rental and assistance for the plaintiff, for the payment of the "Walk On" program and other expenses.

1. The evidence for the defendant does not embark in any detailed way on assessing the value of the plaintiff's claim. The senior counsel for the defendant accepts that assessing the value of the plaintiff's claim for the purpose of this application is something upon which the Court can use its broad experience and can take into account its own knowledge of value of claims of this kind.

1. The defendant submits that as a matter of discretion when considering the making of an order of this kind the Court should have regard to the following matters.

1. First, that an interim payment of the kind sought here would not be available to the plaintiff had the plaintiff sued the defendant in Queensland. That is not a matter that I regard as being relevant to the exercise of this Court's discretion.

1. This Court is given a power to order one or more part payments of damages and it doesn't seem to me that the power of a court in Queensland, when an accident claim is being litigated in Queensland, has anything whatsoever to do with the way in which the discretion ought be exercised here.

1. Second, the defendant submits that the third party insurer issues its policy in accordance with the compulsory scheme for motor accident compensation in New South Wales. The defendant submits that interim payments of damages are not available under the Motor Accidents Compensation Act in the absence of demonstrated financial hardship. The defendant submits that the plaintiff has not made any attempt to prove financial hardship. I am not certain that the last submission of the defendant, that the plaintiff has made no attempt to prove financial hardship, is correct. Leaving that to one side for a moment.

1. It seems to me that the fact that s 84A of the Motor Accidents Compensation Act which places a duty on a third party insurer to make part payments of damages in circumstances there defined, is different from the power of the Court under s 82 is not a directly relevant consideration. That is because the terms s 82(7) make specific provision with respect to the power of this Court in exercising its discretion under s 82 where Motor Accidents Compensation Act claims are concerned. Given that this is not a claim to which Ch 5 of the Motor Accidents Compensation Act applies, I am not satisfied that this is a matter which as a matter of discretion ought be taken into account.

1. Third, and most importantly, the defendant submits that the amount sought by the plaintiff cannot be justified, that it is not based or sought to be based on the plaintiff's genuine need, or even her need for alternative accommodation.

1. The authorities on s 82, broadly put, do not limit orders for part payment only to those in which a need has been established. See Forster v Hunter New England Area Health Service [2010] NSWCA 106; 77 NSWLR 495 at [41] per Sackville AJA; Sargent v South Western Area Health Service [2010] NSWSC 1506.

1. The evidence before me, and as I assess the plaintiff's claim, means that it is highly unlikely, and this of course is subject to the evidence which is ultimately brought at trial, that the plaintiff would receive an amount of an award for damages which will be less than $5 million. The amount claimed represents a proportion of somewhere between 25 per cent and 50 per cent of a likely range of damages.

1. I am not satisfied that the sum sought, $2.5 million, is a sum which is properly to be described as just in all the circumstances. Section 82 requires that the amount which is ordered to be paid is one which is thought "just" by the court.

1. In considering this question I am entitled to and I do have regard to the following matters. Firstly, that the plaintiff's claim is fixed for hearing in February 2013, and it might be expected in the ordinary course of the preparation of that claim and the management of it by the court that the parties would be required to attend a mediation in advance of that hearing.

1. Further, whilst I am not required to be satisfied about the use to which the money which is being sought would be put, it does strike me that in considering what is "just" in the particular circumstances of this case, I am entitled to rely upon evidence as to what purpose the plaintiff desires to use the money. It is not essential that need be established. Nor is it essential that I be persuaded that the use to which the moneys are to be put is a guaranteed usage. However, in looking at the respective rights of the parties and what is "just" in the circumstances, it seems to me that I am entitled to look at the likely use of the monies and the timeframe in which the monies will be used and for what purpose.

1. However, it is not open to me to, and I do not make it a condition of any, order that the monies which I intend to order to be paid to the plaintiff should be used in a particular way. Such an approach is consistent with the general principle where a court does not mandate any expenditure from an award of damages unless there is a specific statutory requirement for it so to do.

1. I would express the hope that the part payment of damages would be used in this case to organise proper and suitable permanent accommodation for the plaintiff and her family, and for the provision of her necessary care and rehabilitation. It will obviously also be necessary for the plaintiff to order her current financial position. These are matters entirely within the plaintiff's control.

1. In all of the circumstances I am satisfied that it is appropriate that an order should be made, and in all of the circumstances, I am satisfied that the amount which it is just for such a payment to be made and one which does not exceed a reasonable proportion of the damages that are likely to be recovered by the plaintiff, is the sum of $1.5 million.

1. I note that it is open to the plaintiff to again apply, should it be necessary, for a further order for part payment.

Orders

1. Accordingly, I will make the following orders:

(1) Pursuant to s 82(5) of the Civil Procedure Act 2005 I order the defendant to make a payment of $1.5 million to the plaintiff.

(2)   I order the defendant to pay the plaintiff's costs of the application.

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Decision last updated: 23 May 2012