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

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

Cherie Joy Munzer[1] 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…

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 & Anor

Details

AGLC: Munzer v Johnston [2009] QCA 190
Case: [2009] QCA 190
Decision Date: 14 July 2009

CaseChat Overview and Summary

In the case of Munzer v Johnston & Anor, the respondent was involved in a motor vehicle accident with the first appellant, resulting in serious physical injuries. The first appellant admitted liability, but the quantum of damages was contested. The primary judge awarded the respondent a total of $1,299,459.63 in damages. The appellants challenged the assessment of damages, arguing that the judge made several errors which warranted interference from the appellate court. The central legal issue was whether the primary judge's assessment of damages contained errors significant enough to justify appellate court intervention.

The appellants raised various grounds for the alleged errors in the assessment of damages. These included the primary judge's consideration of certain medical evidence, the calculation of future economic loss, and the determination of non-economic loss. The appellants argued that these errors led to an inflated damages award. However, the court meticulously reviewed the evidence and reasoning employed by the primary judge. It found that the judge had appropriately exercised their discretion and that the award was within the range of reasonable outcomes. Consequently, the court held that the primary judge's assessment was not erroneous to a degree that would justify appellate court interference.

In light of the above, the appeal was dismissed. The court ordered that costs be assessed, reflecting its view that the appeal was without merit. This decision underscores the deference typically afforded to primary judges in the assessment of damages, particularly where their reasoning is sound and their discretion appropriately exercised.

Orders

Orders of the court

The appeal should be dismissed with costs to be assessed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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