Legal Research
Cases
Munzer v Johnston

Munzer v Johnston

Case [2008] QSC 162 1 August 2008

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

Munzer v Johnston & Anor [2008] QSC 162

PARTIES:

CHERIE JOY MUNZER
(plaintiff)
v
JAMES WILLIAM JOHNSTON
(first defendant)
and
RACQ INSURANCE LTD
(second defendant)

FILE NO/S:

Rockhampton 442 of 2007

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

01 August 2008

DELIVERED AT:

Rockhampton

HEARING DATE:

24 and 25 July 2008

JUDGE:

McMeekin J

ORDER:

There will be judgment for the plaintiff in the sum of $1,299,459.63. 1.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – where the plaintiff was injured in a motor vehicle accident – where liability is admitted – where damages are assessed under the Civil Liability Act 2003 (Qld) – where past and future economic loss are assessed – where the plaintiff’s capacity to perform work is adversely affected - where degeneration from the injury is to be taken into consideration.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – where gratuitous care and domestic assistance assessed – where appropriate home modifications discussed - whether the extent of such modifications are necessary.

Civil Liability Act 2003 (Qld), s 51, s 62.

Civil Liability Regulation 2003 (Qld), s 6, Sch 3, Sch 4.

Griffiths v Kerkemeyer (1977) 139 CLR 161 followed

Todorovic v Waller (1981) 150 CLR 402 considered
Van Gervan v Fenton (1992) 175 CLR 327 followed

COUNSEL:

G Crow for the Plaintiff

G O’Driscoll for the Defendant

SOLICITORS:

Chris Trevor & Associates for the Plaintiff

Quinlan Miller & Treston for the Second Defendant

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.

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

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

(a)     A closed head injury;
(b)     A right elbow open fracture;
(c)     An open comminuted fracture of the right femur;
(d)     An open comminuted fracture of the left femur;
(e)     An open comminuted fracture of the right patella;
(f)     A fracture dislocation of the right talus.

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

The Civil Liability Act

The assessment is governed by the provisions of the Civil Liability Act 2003 (CLA) and the Civil Liability Regulation 2003 (“the Regulation”).

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
(a) pain…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Munzer v Johnston

Details

AGLC: Munzer v Johnston [2008] QSC 162
Case: [2008] QSC 162
Decision Date: 1 August 2008

CaseChat Overview and Summary

In the matter of Munzer v Johnston, the plaintiff, Mr. Munzer, sought damages for personal injuries sustained in a motor vehicle accident for which the defendant, Mr. Johnston, admitted liability. The case was adjudicated in the District Court of Queensland, with the primary focus on determining the extent of damages applicable under the Civil Liability Act 2003 (Qld). The court was tasked with assessing both past and future economic losses, considering the plaintiff's reduced capacity to perform work and the degeneration resulting from the injuries. Additionally, the court evaluated the necessity of gratuitous care, domestic assistance, and home modifications required due to the injuries.

The legal issues before the court included the quantification of economic losses, the impact of the injury on the plaintiff's ability to work, the consideration of degeneration in the assessment of damages, and the adequacy of proposed home modifications. The court had to balance the plaintiff's need for care and modifications against the defendant's liability and the statutory provisions governing damages for personal injuries. The court examined the extent to which the plaintiff's life had been adversely affected by the injuries and how this could be appropriately compensated.

The court reasoned that the plaintiff's capacity to work had been significantly impaired, warranting a substantial award for economic losses. The assessment included both direct and consequential losses, reflecting the plaintiff's reduced earning potential and the expected impact of degeneration on his future capacity to work. The court found that the proposed home modifications were necessary to accommodate the plaintiff's ongoing needs and awarded compensation accordingly. After considering all evidence and arguments, the court determined the total damages payable to the plaintiff to be $1,299,459.63, which covered past and future economic losses, care, assistance, and modifications.

The court's final orders included judgment in favour of the plaintiff, Mr. Munzer, for the sum of $1,299,459.63, reflecting the total compensation for the injuries sustained in the motor vehicle accident. This amount included provisions for past and future economic losses, gratuitous care, domestic assistance, and necessary home modifications, as assessed under the Civil Liability Act 2003 (Qld). The court's decision provided a comprehensive evaluation of the plaintiff's circumstances, ensuring that the award adequately addressed the impact of the injuries on his life and future prospects.

Orders

Orders of the court

There will be judgment for the plaintiff in the sum of $1,299,459.63. 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Munzer v Johnston [2008] QSC 162

Most Recent Citation

Munzer v Johnston [2009] QCA 190

Cases Citing This Decision

Barbina v McKenzie & RACQ Insurance Ltd [2024] QDC 153
Citation 1 (Para 3)

…The plaintiff’s general damages are regulated by the CLA. I adopt the approach of McMeekin J helpfully summarised in Munzer v Johnston & Anor [2008] QSC 162, [5]-[14] and Allwood v Wilson & Anor [2011] QSC 180 [19]-[24].…
Forostenko v Springfree Trampoline Australia Pty Ltd [2024] QSC 1
Citation 2 (Para 2)

…J summarised the relevant principles in assessing general damages, where the CL Act applies, from [19] – [24].[90] [90] See also Munzer v Johnston [2008] QSC 162, [5]-[12] per McMeekin J.…
Schokman v Ccig Investments Pty Ltd [2021] QSC 120
Citation 3 (Para 23)

…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.” [148][2008] QSC 162 at [9].…
Allen v O'Donnell [2021] QSC 63
Citation 4 (Para 10)

…The method of quantification of general damages was set out by McMeekin J in Munzer v Johnston & Anor [2008] QSC 162 . Schedule 3 to the Civil Liability Regulations provides in respect of multiple injuries that the dominant injury needs to be identified. The dominant injury is the psychiatric injury with an ISV r…
Stokes v House with No Steps [2016] QSC 79
Citation 5 (Para 1)

…apparent contest that it is the dominant injury or as to the correct approach to the assessment required of same.[32] [32]See Munzer v Johnston [2008] QSC 162, [7]-[14].…
Du Pradal v Petchell [2014] QSC 261
Citation 6 (Para 1)

…per cent ought to be applied. Reference was made to Clement v Backo [2006] QSC 129 where Dutney J applied a 100 per cent uplift and Munzer v Johnston [2008] QSC 162 where McMeekin J applied a 75 per cent uplift.…
Mules v Ferguson [2014] QSC 51
Citation 7

…3] QCA 270, considered McNeilly v Imbree [2007] NSWCA 156, cited Munzer v Johnston & Anor [2008] QSC 162, considered Rogers v Whitaker (1992) 175 CLR 479, cited Sharman v Evans (1977) 138 CLR 563, cited Tobler v Halverson (2007) 70 NSWLR 151, considered Waller v McGrath & Anor [2009] QSC 158, followed COUNSEL: RJ…
McAndrew v AAI Limited [2013] QSC 290
Citation 8 (Para 1)

…t more than 100 and only rarely more than 25% above the maximum dominant ISV selected.[35]”[36] [32]See for example Munzer v Johnstone & Anor [2008] QSC 162 at [5]-[14] ; Allwood v Wilson & Anor [2011] QSC 180 at [19]-[24] [33]See Sch 7 of the Regulation [34]Sch 3 s 3 and s 4 [35]Sch 3 s 4 [36] Munzer at [10]…
Rodger v Johnson [2013] QSC 117
Citation 9 (Para 1)

…increased from 10 to 18.[13] With the exception of McMeekin J’s succinct summary of the operation of the relevant provisions in Munzer v Johnstone [2008] QSC 162 at [7] – [14], I do not find that they assist much. [13] Ballesteros v Chidlow & Anor [2005] QSC 280; Clement v Backo & Anor [2006] QSC 129; Carroll v…
Good v Czislowski [2013] QDC 68
Citation 10 (Para 1)

…In Munzer v Johnston [16] McMeekin J relevantly said: [16][2008] QSC 162 at paras 10-12.…
Land v Dhaliwal [2012] QSC 360
Citation 11 (Para 1)

…See also his Honour’s observations in Munzer v Johnstone [9] and Armstrong [9][2008] QSC 162. [10][2012] QSC 334. v Mitchell-Smith.[10]…
Strachan v McPhee [2010] QSC 439
Citation 12 (Para 1)

…lift beyond that threshold.[13] [11]See Sch 7 of the dictionary for the Regulations . [12]See Sch 3, s 2(2) of the Regulations; Munzer v Johnston [2008] QSC 162 at para 8 per McMeakin J. [13]See Munzer v Johnston Hibberd where there was an uplift of the dominant injury by 75 per cent and Clement v Backho [2006] Q…
Williams v Partridge [2009] QSC 278
Citation 13

…[2007] QSC 046 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Mallett v McMonagle [1970] AC 166 Munzer v Johnston & Anor [2008] QSC 162 Van Gervan v Fenton (1992) 176 CLR 327 Scarf v State of Queensland [1998] QSC 233 COUNSEL: S C Williams QC with A J Williams for the plaintiff G Crow for the defendant SOLICITORS:…
Munzer v Johnston & Anor [2009] QCA 190
Citation 14 (Para 1)

…ng her guilty plea to driving whilst under the influence of drugs, that she was an occasional user of methylamphetamine. [4] Munzer v Johnston & Anor [2008] QSC 162 at [38] & [39]. [5] Munzer v Johnston & Anor [2008] QSC 162 at [40].…

See all citing cases →

Cases Cited

Clement v Backo [2006] QSC 129
Citation 1 (Para 1)

…ious disability of the right arm, there is a strong case for an uplift approaching 100 per cent, the maximum permitted.[18] [18]See Clement v Backo [2006] QSC 129 per Dutney J for a similar situation where a 100% uplift was allowed…
Todorovic v Waller [1981] HCA 72
Citation 2

…d), s 51, s 62. Civil Liability Regulation 2003 (Qld), s 6, Sch 3, Sch 4. Griffiths v Kerkemeyer ( 1977) 139 CLR 161 followed Todorovic v Waller (1981) 150 CLR 402 considered Van Gervan v Fenton (1992) 175 CLR 327 followed COUNSEL: G Crow for the Plaintiff G O’Driscoll for the Defendant SOLICITORS: Chris Trevor & Associates…
Griffiths v Kerkemeyer [1977] HCA 45
Citation 3

…iability Act 2003 (Qld), s 51, s 62. Civil Liability Regulation 2003 (Qld), s 6, Sch 3, Sch 4. Griffiths v Kerkemeyer ( 1977) 139 CLR 161 followed Todorovic v Waller (1981) 150 CLR 402 considered Van Gervan v Fenton (1992) 175 CLR 327 followed COUNSEL: G Crow for the Plaintiff G O’Driscoll for the Defendant SO…
Van Gervan v Fenton [1992] HCA 54
Citation 4

…Qld), s 6, Sch 3, Sch 4. Griffiths v Kerkemeyer ( 1977) 139 CLR 161 followed Todorovic v Waller (1981) 150 CLR 402 considered Van Gervan v Fenton (1992) 175 CLR 327 followed COUNSEL: G Crow for the Plaintiff G O’Driscoll for the Defendant SOLICITORS: Chris Trevor & Associates for the Plaintiff Quinlan Miller & Treston for th…

Legislation Cited

Civil Liability Act 2003 (Qld) 51
2 mentions (from Para 1)

CITATION:	Munzer v Johnston & Anor [2008] QSC 162
PARTIES:	CHERIE JOY MUNZER (plaintiff) v JAMES WILLIAM JOHNSTON (first defendant) and RACQ INSURANCE LTD (second defendant)
FILE NO/S:	Rockhampton 442 of 2007
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	01 August 2008
DELIVERED AT:	Rockhampton
HEARING DATE:	24 and 25 July 2008
JUDGE:	McMeekin J
ORDER:	There will be judgment for the plaintiff in the sum of $1,299,459.63. 1.
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – where the plaintiff was injured in a motor vehicle accident – where liability is admitted – where damages are assessed under the Civil Liability Act 2003 (Qld) – where past and future economic loss are assessed – where the plaintiff’s capacity to perform work is adversely affected - where degeneration from the injury is to be taken into consideration. DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – where gratuitous care and domestic assistance assessed – where appropriate home modifications discussed - whether the extent of such modifications are necessary. Civil Liability Act 2003 (Qld), s 51, s 62. Civil Liability Regulation 2003 (Qld), s 6, Sch 3, Sch 4. Griffiths v Kerkemeyer (1977) 139 CLR 161 followed Todorovic v Waller (1981) 150 CLR 402 considered Van Gervan v Fenton (1992) 175 CLR 327 followed
COUNSEL:	G Crow for the Plaintiff G O’Driscoll for the Defendant
SOLICITORS:	Chris Trevor & Associates for the Plaintiff Quinlan Miller & Treston for the Second Defendant