Behmen v Fogg

DISTRICT COURT OF QUEENSLAND

CITATION:	Behmen v Fogg [2019] QDC 231
PARTIES:	EDNA BEHMEN (Plaintiff) v ANDREW RAYMOND FOGG (First Defendant) and ALLIANZ AUSTRALIA INSURANCE LIMITED (Second Defendant)
FILE NO/S:	1115/18
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	28, 29 and 30 August and 5 September 2019
JUDGE:	Barlow QC DCJ
ORDER:	Judgment for the plaintiff in the sum of $35,478.
CATCHWORDS:	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – damages for gratuitous services – plaintiff contended that no longer able to contribute to household duties – plaintiff claimed for gratuitous services of other household members taking over her duties – whether plaintiff entitled to gratuitous damages for past and future care DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – MEDICAL AND HOSPITAL EXPENSES – plaintiff claimed expenses for past medical appointments, medication and travel to medical appointments – whether plaintiff had proved expenses without any specific records, on the basis of her oral evidence and medical records TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – plaintiff claimed damages for injuries suffered from a motor vehicle accident – liability admitted – nature and extent of injuries and quantum of damages in contention TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM – negligence caused or contributed to initial psychological or psychiatric illness – plaintiff later diagnosed with Graves’ disease, which can cause depression – whether psychiatric illness caused by negligence or by other intervening illness Civil Liability Act 2003 (Qld) s 55, s 59, s 61, s 62 Civil Liability Regulation 2014 (Qld) sch 4, sch 7 Hunt v Lemura [2011] QSC 378, applied Leonardi v Payne [2009] QSC 382, applied Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190, followed
COUNSEL:	JJ Wiltshire for the Plaintiff R Morton for the Defendants
SOLICITORS:	Seymour Furlong Lawyers for the Plaintiff McInnes Wilson Lawyers for the Defendants

Introduction

1. The plaintiff was injured in a motor vehicle accident while driving south along the Pacific Motorway at Springwood, Queensland, on 3 October 2015.  Her car was stationary (due to heavy traffic congestion) when the first defendant’s car collided with it in the rear.  The second defendant is the first defendant’s insurer and conducted this proceeding on his behalf.  The defendants have admitted liability.

2. Ms Behmen alleges that, as a result of the accident, she has suffered personal injuries and claims damages.  The trial was confined to issues of the nature and extent of Ms Behmen’s injuries and the quantum of damages.

3. Ms Behmen claims she has suffered an injury to the cervical spine, an injury to the thoracic spine, and a psychiatric injury.[1]  The defendants admit that she suffered a minor soft-tissue injury to the cervical spine, but deny that she suffered any other injury as a result of the accident.  While two psychiatrists who saw Ms Behmen formed the view that she suffered from a psychiatric disorder, the nature, timing and cause of that disorder are in dispute.

   [1]Amended Statement of Claim at [7] and [9].

4. The issues arising in the case are:

(a)        the force of the impact to Ms Behmen’s vehicle;

(b)        the extent of Ms Behmen’s cervical spine injury;

(c)        whether Ms Behmen suffered any injury to her thoracic spine and, if so, the extent of that injury;

(d)        the nature of Ms Behmen’s psychiatric illness or disorder – in particular, whether it is an adjustment disorder, postnatal depression or major depression, or a combination of any of them;

(e)        whether Ms Behmen’s psychiatric illness or disorder was a result of the accident;

(f)         the extent to which Ms Behmen’s injuries and illness or disorder have affected her lifestyle, her physical abilities and her ability to work, both in the past and in the future; and

(g)        the quantum of damages that should be awarded to Ms Behmen.[2]

Events following the accident and early symptoms

5. The following facts, which are largely uncontentious, derive from the plaintiff’s evidence and, where indicated, documentary exhibits. 

6. Following the collision, Ms Behmen drove the car to the side of the road and exchanged details with the first defendant.[3]  Ms Behmen took a photograph of the damage caused to her car at this time.[4]  The towbar was bent upwards and into the rear bumper and number plate, bending them inwards.  The repairs are listed in an invoice showing a total repair cost of $5,125.49.[5] 

   [3]T1-7:7-11.

   [4]Exhibit 1.1.  Exhibit 1 is a bundle comprising a large number of documents, which are indexed by number.  I will refer to each document by its exhibit number as 1.1, 1.2, etc.  I will refer to page numbers in the bundle by the exhibit number and page number:  for example, 1.3:4-5.

   [5]Exhibit 1.2.  The repair costs are not a subject of this claim.

7. Ms Behmen then proceeded to drive to the Gold Coast for a beauty appointment.[6]  When she arrived at the appointment, she had a sore right wrist and felt nauseous.[7]  After her appointment, a friend who had been the passenger in the car on the way to the Gold Coast drove Ms Behmen home because, Ms Behmen said, she was experiencing nausea and pain in her wrist, neck and back.[8]  Her symptoms continued after she arrived home.

   [6]T1-10:26-29.

   [7]T1-10:31-34.

   [8]T1-11:4-13.

8. Ms Behmen’s symptoms continued the following day and she also had a headache.[9]  She went to the Princess Alexandra Hospital.  The records of the hospital note a diagnosis of “trauma-related neck sprain/strain”.[10]  She was advised to take paracetamol and ibuprofen if needed before being discharged that day.

   [9]T1-11:40-41.

   [10]Exhibit 1.21.

9. On 6 October 2015, Ms Behmen attended Stones Corner Medical Centre.[11]  The records of the medical centre note that she suffered left-side neck pain, nausea, headaches and wrist pain, but no thoracic or lower back pain.  She was prescribed Panadeine Forte and was directed to obtain x-rays of her right wrist, chest and posterior, and cervical spine.

   [11]Exhibit 1.23:286-288.

10. On 16 October 2015, records of the Stones Corner Medical Centre note that Ms Behmen saw her general practitioner, Dr Henry Ho, who explained that the x-rays were “all fine”.[12]  She told Dr Ho that she was having panic attacks while driving.  Dr Ho prescribed Valium for Ms Behmen’s anxiety-type symptoms and advised her to stop driving for a few days.[13] 

    [12]Exhibit 1.23:288.

    [13]T1-14:6-31.

11. On 21 November 2015, Ms Behmen attended again on Dr Ho, complaining of continued neck and lower back pain and anxiety while driving.  Dr Ho referred her for physiotherapy and prescribed an anti-inflammatory and Valium.[14]

    [14]Exhibit 1.23:289-290.

Ms Behmen’s evidence of her personal and employment history

12. Ms Behmen was born in March 1995 and was 20 years old at the time of the accident.  Her evidence was that she had been a good student in secondary school, attaining a grade of B in most subjects.  She said she wanted to have a career in business administration or accounting.[15]  I accept that evidence.

    [15]T1-19:18-37.

13. Ms Behmen said she completed courses in children’s services and hospitality while at high school.[16]  After completing Grade 12, she worked in retail for approximately one year.[17]  Her parents operate a food truck.[18]  Ms Behmen described assisting with that business by managing emails, bookings for events and social media.[19]  She said that on some occasions she would also assist by serving customers and assembling food orders.[20]  I accept this evidence.

    [16]T1-15:9-24.

    [17]T1-15:26-28.

    [18]T1-38:22.

    [19]T1-38:40-43.

    [20]T1-38:45 to T1-39:35.

14. Ms Behmen described herself, prior to the accident, as being happy and outgoing and considered herself as “the loud one” amongst her friends.[21]  She said she had an active social life and would often go out to coffee shops, restaurants and nightclubs with her friends.[22]  Prior to the accident, she went to the gym almost daily and she described herself as having been very slim and fit.[23]  I accept this evidence.

    [21]T1-26:20-22.

    [22]T1-26:24-20.

    [23]T1-26:31-37; T1-40:26-27.

15. At the time of the accident, Ms Behmen was employed by Excel Recruitment on a full-time basis as an “Administration Trainee”, for a fixed period of 12 months from 9 June 2015 to 7 June 2016.[24]  She completed a Certificate III in Business during her employment.  

    [24]Exhibit 1.34:444-448, 463-475.

16. Ms Behmen said that, following the accident, she struggled to complete her normal tasks at work due to being unable to sit for long periods of time or to perform tasks that involved bending her back, such as loading paper into the printer.[25]  She said her manager assumed some of her responsibilities. 

    [25]T1-12:44 to T1-13:12.

17. Ms Behmen was employed at the time of the accident.  In the following week she took two days’ sick leave; she attended work on the Monday before taking sick leave on the Tuesday and Wednesday.[26]  During the following eight months, she took one more full day and one half day of sick leave that appear to have been related to the accident:  she attended Dr Ho on 6 January 2016 complaining of neck and back pain,[27] having taken the whole day off work;[28] and she attended him again on 11 May 2016 complaining of anxiety and neck and back pain,[29] having taken sick leave from about 2.00pm.[30]

    [26]Exhibit 1.34:422, 423.

    [27]Exhibit 1.23:290.

    [28]Exhibit 1.34:426.

    [29]Exhibit 1.23:292.

    [30]Exhibit 1.34:431.

18. At the conclusion of Ms Behmen’s contract with Excel Recruitment, she did not seek further employment or education.[31]  She said this was because she did not believe she was capable of working or studying due to her anxiety and neck and back pain.[32]  She said her intention, after completing the contract, was to study accounting, although she had not made investigations into particular courses.[33] 

    [31]T1-20:16-22.

    [32]T1-20:24-25.

    [33]T1-19:16-29.

Ms Behmen’s evidence of her medical and personal circumstances following the accident

19. Ms Behmen said that, following the accident, she experienced daily anxiety while driving, including while driving to work.[34]  She said she continues to have anxiety while driving and as a passenger, although her mother encourages her to drive once a week.[35]  She said she has had panic attacks when she has driven on her own on a few occasions, and therefore drives with her mother on most occasions.[36]  She recalled not driving at all for a period of time following the accident, but she also said that this was after she ceased employment with Excel Recruitment; that is, eight months after the accident.[37]

    [34]T1-13:19-32.

    [35]T1-27:3-5.

    [36]T1-27:5-6.

    [37]T1-27:10-21.

20. At the time of the accident, Ms Behmen lived with her parents.[38]  She said that, before the accident, she would share housework equally with her mother by completing tasks like laundry, washing dishes, cooking, cleaning and grocery shopping as required.[39]  However, since the accident, she has not been able to continue contributing to housework and her mother, father and sometimes her partner would share the housework.[40]  Ms Behmen recalled that, after the accident, she occasionally went grocery shopping with her mother and did some cooking “here and there”, but she was unable to do laundry without assistance, unable to clean and required some assistance from her mother to maintain personal hygiene.[41]  In her evidence in chief, she reported being able to cook, fold laundry, mop, sweep, and go grocery shopping with her mother on her “good days”.[42]  She denied being able to hang out washing or to clean bathrooms.[43]

    [38]T1-32:32-33.

    [39]T1-32:35 to T1-33:6.

    [40]T1-33:16-20.

    [41]T1-33:22-44.  This appears mostly to have been help in brushing and washing her hair, which is all she reported to expert witnesses: exhibits 1.4:17 and 1.9:89, 91.  On one occasion, she also reported difficulty with drying lower limbs, dressing lower limbs and putting on shoes: exhibit 1.9:92.

    [42]T1-34:10-31.

    [43]T1-34:17-18, 23.

21. Ms Behmen said her partner and she had been together for about one year when She found out in June 2016 that she was pregnant.[44]  She recalled being happy about the pregnancy, but “scared” due to her pain and uncertainty as to how she would care for her daughter once she was born.[45]  She said her partner and parents were very happy and supportive of the pregnancy.[46]  Although the pregnancy was unplanned, she said she had intended to have a family in the future.[47]  She said she did not believe there was any change in her anxiety or depressive symptoms during or after her pregnancy.[48]

    [44]T1-28:24-26.

    [45]T1-28:30-34.

    [46]T1-28:36 to T1-29:2.

    [47]T1-29:4-17.

    [48]T1-29:19-30.

22. Ms Behmen and her partner were living with Ms Behmen’s parents when her daughter was born in February 2017, as Ms Behmen believed she would require assistance with caring for her daughter.[49]  Ms Behmen said that her mother and partner helped care for her daughter every day.[50]  She said she was unable to complete tasks such as changing nappies, bathing and carrying her daughter due to her neck and back pain.  She said that, while she finds it easier to care for her daughter now she is older, her mother still assists with lifting, doing washing, cooking, bathing and taking her daughter out for walks.[51]

    [49]T1-29:34-43.

    [50]T1-30:15 to T1-31:3.

    [51]T1-31:13-40.

23. Ms Behmen had appointments for physiotherapy, paid for by the second defendant, on eight occasions from June to August 2016.[52]  She said she stopped going to the physiotherapist because she “couldn’t handle the pain afterwards.”[53]  It appears that she told medical experts that the physiotherapy initially made her feel better, but she found the ongoing pain to be worse after treatment, which is why she stopped going.[54]

    [52]Exhibit 2.

    [53]T1-22:23-24

    [54]Exhibits 1.3:6, 7; 1.4:15; 1.8:64; 1.9:89; 1.11:110, 111; 1.12:118; 1.13:126; 1.14:13; 1.18:160. Ms Behmen only reported initial improvement on one occasion, in exhibit 1.12:118.

24. Ms Behmen saw her general practitioners on many occasions over the years between the accident and the trial.  However, not every visit concerned ongoing pain or anxiety.  Counsel appearing for her, Mr Wiltshire, helpfully provided the following table of the records of her appointments at the Stones Corner Medical Centre that are said to concern her complaints arising from the accident.[55]

    [55]I have added to some of the records to show a more complete picture, including occasions on which Ms Behmen reported anxiety or depression and any details of her range of movement of her thoracic and cervical spine recorded in the notes.

25. In addition, I have noted the following appointments:

26. So, over a period of some 2½ years, Ms Behmen attended her general practitioner on 14 occasions complaining of neck pain, back pain and occasionally headaches.

27. From about January 2018, Ms Behmen started attending a different general practitioner, Dr Alexander Serdiuk, but his clinical notes are mostly illegible and therefore generally do not assist me.[56]

    [56]Exhibit 1.22.

28. In June 2018, Ms Behmen was diagnosed with a thyroid condition known as Graves’ disease.[57]  Ms Behmen was prescribed Neo-Mercazole by Dr Serdiuk.[58]  Dr Thomas Ulahannan, endocrinologist, gave evidence in a report in which he confirmed the diagnosis of Graves’ disease based upon investigations which showed thyrotoxicosis.[59]  Ms Behmen’s thyrotoxicosis was due to hyperthyroidism, which involves excessive production of thyroid hormones.[60]  Dr Ulahannan opined that, although Ms Behmen’s abnormal thyroid function was first documented in June 2018, hyperthyroidism is often present for months or years before detection, but it was most likely that Ms Behmen’s thyrotoxicosis began a few months prior to June 2018.[61]

    [57]Exhibit 1.22:210.

    [58]T1-36:45 to T1-37:3.

    [59]Exhibit 1.19:181.

    [60]Exhibit 1.17:154;  Exhibit 1.19:181;  Exhibit 5, p. 632.

    [61]Exhibit 1.19:182.

29. It appears from her medical records and from the reports of Dr Ulahannan that the medical treatment for Ms Behmen’s hyperthyroidism was grossly inadequate until about May this year.  Both the prescription given to her was inadequate and, it seems, she did not take it as prescribed, which led to her apparent depression worsening substantially between November 2017 and October 2018.  Dr Ulahannan opines that, although her condition appears to have stabilised since May, it is “badly stable”, as it has not been managed appropriately, and she continues to suffer from significant hyperthyroidism.[62]

    [62]Exhibit 1.20.

Experts’ reports

30. Ms Behmen has seen a number of medical and allied practitioners, who have produced reports for the purpose of this proceeding and (in most cases) gave evidence at the trial.  Those consultations have led to a number of differing diagnoses.  I propose now to summarise the practitioners’ reports.  I shall include relevant details of what they were told by Ms Behmen, as her accounts to the various practitioners of her pain and what she could and could not do are relevant to the reliability of her evidence.  I shall also summarise each practitioner’s diagnoses, conclusions and recommendations.

Neurosurgeon and orthopaedic surgeon

31. Ms Behmen relied on reports and oral evidence of Dr Peter Gan, a neurosurgeon.  Curiously, Dr Gan practises in Hamilton, New Zealand, not in Brisbane.

32. Ms Behmen first saw Dr Gan on 12 October 2016 and he provided a report dated 26 October 2016.[63]  Dr Gan recorded the history of the accident which was mostly consistent with Ms Behmen’s evidence.  Dr Gan recorded that the plaintiff had told him that she had undertaken weekly physiotherapy until two or three weeks before the appointment.  She said that she had stopped physiotherapy as it caused further neck pain that she could not tolerate and her symptoms had improved since then.  Dr Gan recorded that Ms Behmen’s current symptoms were at least daily global headaches rating 9/10 on the Visual Analogue Scale, pain on the right side and middle of her neck which radiated into the right shoulder and sometimes the right side and middle of her back.  This pain was initially 7/10 but was now 8 to 9/10.  She reported anxiety while travelling in cars, especially when she drives.  She reported that she could not wash or hang clothes, cook, vacuum, lift shopping bags or push shopping trolleys.  

    [63]Exhibit 1.3.

33. On examination, Ms Behmen held her neck in a rigid position, there was tenderness and a degree of muscle spasm on the right side with limited flexion and extension of her neck and mild weakness (4+/5) in her right-hand grip.  Dr Gan noted that Ms Behmen’s headaches and neck pain were not improving but gradually worsening.  He opined that Ms Behmen had a severe neck sprain and cervical headaches.  The injuries were attributed to the accident and were now stable and stationary.  He expected her disability to decrease gradually.  He assessed whole person impairment at 8 per cent on the basis of Diagnosed Related Estimate (DRE) category II for the cervical spine.  Dr Gan did not recommend further treatment, but indicated that Ms Behmen should be referred to a specialist for symptom management and possibly to have an MRI scan of her neck.  He considered that treatment was not likely to affect her permanent impairment rating, but would enable her to manage her symptoms better.

34. Dr Gan considered that, in the short term, Ms Behmen could do sedentary employment that would enable her not to sit or stand for more than 30 minutes and not to lift anything heavy.  In the long term, Ms Behmen should be able to work but she may require episodic leave for management of her symptoms.

35. Ms Behmen saw Dr Paul Pincus, an orthopaedic surgeon, on 16 November 2016, at the instance of the defendants.  At that time she was 27 weeks pregnant.  Dr Pincus produced a report[64] in which he recorded that Ms Behmen had told him that she had neck pain in the afternoon and evening, although it sometimes occurred at other times. She said it “comes and goes,” mostly after she had done “something,” and was worse when she turned her head.  She had low back pain, which bothered her with heavy lifting and when she moved in certain ways.  She could not turn her back well to drive, could not walk for more than 15 mins, and could not stand or sit for any length of time.  She told him that she spent her time at home and could not do anything, spending most of her time in bed.   She said she had ongoing issues with anxiety and depression.

    [64]Exhibit 1.11.

36. Dr Pincus examined her and reported that her cervical spine had no visible deformity.  There was no tenderness or spasm and she had a full range of movement in her spine.  Her cervical spine was completely normal.  He concluded that she fulfilled the criteria for a DRE Category I injury to the cervical spine with no whole person impairment.  No further investigation or treatment was required.

37. Dr Gan saw Ms Behmen again on 15 February 2019, subsequently producing another report.[65]  Dr Gan was given a copy of Dr Pincus’ report, as well as two reports from Dr Karen Chau, a psychiatrist.  In his report, Dr Gan recorded that Ms Behmen had told him that she continued to have neck pain, which radiated to her right shoulder and halfway down her back and had an intensity of 8 to 10/10.  She also had frontal headaches about three times a week at the end of the day.  Her neck pain seemed worse, but her headaches were not as severe as earlier.  She said that she was taking two tablets of Panadeine Forte twice a week, two Panadol tablets every second day and she used heat packs five or six times a night.

    [65]Exhibit 1.4.

38. Ms Behmen also told Dr Gan that bending made her neck pain worse straight away.  She could not lift anything heavy, including her two year old child, who weighed 11 kilograms.  She was able to drive but found turning her neck was very painful.  She got very panicky and cried when she drove.  She could not cook, wash dishes, wash or hang up clothes, or vacuum.  She could not lift even light shopping bags or push shopping trolleys.  Her mother sometimes washed her hair because she found it difficult to reach the back of her head due to her pain.

39. On examination, her neck revealed a lot of spasm in the right trapezius area, with tenderness.  Flexion and extension of her cervical spine were 40 degrees, with rotation to the left of 50 degrees and to the right 35 degrees.  The thoracic spine had right paraspinal spasm and tenderness, but normal range of movement.  Her grip strength was 5/5.

40. Dr Gan again considered that Ms Behmen had a DRE Category II injury to the cervical spine due to spasms in the trapezius and paraspinous muscles and asymmetric restriction of movement in the neck.  Because of the effects on her activities of daily living, he assessed that as an 8% whole person impairment.  In addition, he considered that she had a DRE Category II injury to her thoracic spine due to spasm and tenderness in her right paraspinous muscle with normal range of movement.  He assessed that as a 5% whole person impairment.

41. Combining the injuries resulted in an overall whole person impairment of 13%.

42. Dr Gan considered that, in her current state, Ms Behmen was unlikely ever to obtain work, due to her psychological symptoms and her spinal injuries.  He recommended regular physiotherapy and hydrotherapy once a week for 10 sessions and that she see a pain specialist.

43. Dr Pincus saw Ms Behmen again on 6 March 2019, producing a report on 18 March 2019.[66]  He recorded that Ms Behmen told him that she had neck pain that had been present every moment of every day for 3½ years, although it varied in intensity.  It was worse if she sits or stands for more than 20 minutes.  She also had thoracic spinal pain that was always present.  She told him that she did nothing.  Her mother did all the household chores and all of the looking after her daughter.  Ms Behmen held her neck rigidly and had no substantial range of movement.  Dr Pincus recorded that it was “exquisitely tender to touch”.

    [66]Exhibit 1.12.

44. Dr Pincus recorded that Ms Behmen’s symptoms were entirely different to the last occasion on which he had seen her.  He could not explain the differences, but noted that her major problem appeared to be psychiatric.[67]  He concluded (presumably because he could not explain the symptoms on that occasion, in comparison to those she had previously displayed) that she still fulfilled the criteria for a DRS Category I injury with no whole person impairment.  He commented that her inability to work was secondary to her psychiatric condition, not to any physical injury.

    [67]Dr Pincus had been given reports of two psychiatrists who had seen Ms Behmen: Dr Chau and Dr Varghese.

Psychiatrists

45. Ms Behmen first saw Dr Karen Chau, at the instance of her solicitors, on 15 May 2017.[68]  At the time, Ms Behmen’s daughter was about 11 weeks old.  Ms Behmen told Dr Chau that she had pretty constant pain in her back and neck.  She avoided driving anywhere alone.  She sometimes drove to the local shops, accompanied by her mother, but she had to get out of the car due to her anxiety.  Ms Behmen reported having no motivation or energy at all and a mood of 2 to 3/10 (1 being the saddest possible).  She also felt anxious and avoidant of being in public and limited her outings, including due to her pain.  She said she could not connect with her daughter as much as she would like due to pain and her physical limitations and she relied significantly on her mother.

    [68]Dr Chau’s report is exhibit 1.5.

46. Dr Chau considered that Ms Behmen’s symptoms were suggestive of an adjustment disorder with mixed anxiety and depressed mood and social phobia, all as a result of the accident, which left her with chronic pain. She said that chronic pain and concerns about future employability, finances and parenting may be maintaining the symptoms. Dr Chau assessed a whole person impairment of 19% based on the Psychiatric Impairment Rating Scale (PIRS) in schedule 5 of the Civil Liability Regulation 2014 (Qld). Dr Chau noted that Ms Behmen had so far declined any treatment and recommended that she have at least 20 sessions of mindfulness training, cognitive behavioural therapy and adjustment-to-injury counselling with a clinical psychologist. She also recommended that she take antidepressant medication for at least 5 years. She opined that, if Ms Behmen received treatment, it could have a mild to moderate effect on her impairment.

47. Ms Behmen saw Dr Frank Varghese on 31 October 2017.  Dr Varghese produced a report following that consultation.[69]  Dr Varghese recorded that Ms Behmen told him that her neck was painful when she sat or stood for long and her back ached and was painful if she sat too long.  She said, “I cannot lift my child” and “I cannot do anything.”  She felt down and moody daily, only cheered up by her daughter’s smile, but she felt hopeless.  Her partner or her mother had to feed her daughter and her partner got up to her daughter at night.  She would get up mid-morning and sit on the couch, but would need to stand up constantly because of the pain.  She never drove.

    [69]Exhibit 1.13.

48. Dr Varghese said Ms Behmen was suffering from major depression of at least moderate intensity.  He considered that the depression was of multifactorial origin.  He noted that adverse life events and circumstances can precipitate an episode of major depression.  Her accident and her perception that she may have been severely injured could be regarded as a precipitant for the major depression.  The experience of the accident may also be a factor.  He noted that she suffers from panic attacks and other anxiety symptoms.  Those may well be secondary to the major depression, but could also be regarded as post-traumatic symptoms.  The longitudinal history of the development of symptoms was important in clarifying this.  She was in a very high risk period for postnatal depression.  Although the depression appeared to have started before birth, he expected that it would intensify in that period.  He considered that a significant proportion of her experience of pain and disability were secondary to that depression, in that they represent depressive equivalents in the context of alexithymia.  That implied that, as her depression was treated and lifted, there should be an improvement in her physical symptoms. 

49. Dr Varghese considered that Dr Chau’s assessment of a 19% whole person impairment was inconsistent with her diagnosis of an adjustment disorder, but it would be in keeping with major depression.  However, Dr Varghese was not prepared to make his own assessment without first seeing Ms Behmen’s medical records.

50. Dr Varghese considered that Ms Behmen’s symptoms were unlikely to be permanent. He recommended that she seek urgent psychiatric treatment and be reviewed after six months of such treatment.

51. Dr Frank Varghese next saw Ms Behmen on 22 October 2018.[70]  She told him that she felt the same if not worse than she had when she had previously seen him.  She said she was taking Avanza (an antidepressant) and Panadeine Forte daily.  She told him that she had seen a psychologist for two or three sessions, but it made her worse, she got panicky and had flashbacks to the accident.

    [70]His report of that consultation is exhibit 1.14.

52. Ms Behmen told Dr Varghese that her back and neck were very sore all the time.  She could not do things around the house and could not look after her baby.  Her mood was down all the time, she was depressed all day on a daily basis, although her daughter cheered her up transiently.  Her energy was low and she was tired all the time.  She did not interact with her daughter a lot of the time, but spent maybe one or two hours a day caring for her.  Her mother fed and bathed her daughter.  She did not do any housework or cooking.  She could not leave the house on her own because of anxiety and fear of something bad happening.

53. Dr Varghese considered that there had been a significant decline in Ms Behmen’s psychiatric status.  He noted that her clinical records demonstrated a significant depressive illness with secondary anxiety.  The depression was more intense and was then in the moderate to severe range.  She appeared to have prolonged postnatal depression, a biological illness that was not adequately treated with mirtazapine (Avanza).  He considered that a significant proportion of her experience of pain was related to the depression in the form of depressive equivalents.  Her anxiety and panic attacks were also likely to be secondary to depression. 

54. He also learned, from the records provided to him, that Ms Behmen had been diagnosed with Graves’ disease due to hyperthyroidism.  He said hyperthyroidism almost invariably results in anxiety and accompanying physiological manifestations and it can lead to major depression.  The depression was likely to represent an amalgam of primary major depression that commenced in the absence of hyperthyroidism and major depression secondary to thyrotoxicosis.  The primary depressive component of her depression was an amalgam of postnatal depression and reactive issues following the accident, but overall the accident was likely to be playing only a minor role in her current symptomatology and disability.  Her treatment was eminently treatable to a complete recovery. 

55. Dr Varghese assessed a whole person impairment of 22% (class 3), but did not consider it to be permanent.  He considered that there should be stability and remission within 3 to 6 months of commencing treatment.  He noted that, if there were an adjustment disorder in relation to the physical injury in the absence of any other psychiatric condition, the PIRS whole person impairment would be 3%.[71] 

    [71]In a subsequent note, exhibit 1.15, Dr Varghese confirmed that only 3% of Ms Behmen’s whole person impairment was directly related to the accident.  The remaining 19% was related to postnatal depression and Graves’ disease.

56. Dr Varghese again considered Ms Behmen to be in urgent need of psychiatric treatment.  So much so that he wrote a letter to her general practitioner, Dr Serdiuk, recommending urgent referral to a psychiatrist for vigorous treatment of her depression before psychological treatment for her anxiety symptoms.  If she was unable to afford a psychiatrist, he recommended urgent referral to the local adult mental health service.[72]

    [72]Exhibit 1.22:273.

57. In cross-examination, Dr Varghese was challenged on his conclusion that Ms Behmen’s depression was not caused by the accident, but by postnatal depression.  He was taken through the general practitioners’ records in which it was regularly noted that she had anxiety and took antidepressants to help control it.  He accepted that she had anxiety before she fell pregnant, but disagreed that her depression (as he had diagnosed it) was caused by the accident.  In essence, he said, postnatal depression and major depression are caused by biological reasons and therefore not by external forces.  However, he agreed that, if Ms Behmen had accident-related anxiety and depression beforehand, that may have increased her risk of getting postnatal depression.[73]

    [73]T3-42:12-18; T3-43:44-45.

58. In his re-examination, Dr Varghese opined that, if Ms Behmen had not had the motor vehicle accident, but she had had all the other things in her life, the baby, the thyroid condition, etcetera, it is more likely than not that she would have developed depression in any case because of the biological factors, which he explained.  However, the accident and its consequences for her was one of multifactorial things that may have combined to trigger her depression.[74]

    [74]T3-57:1-43.

59. Dr Chau produced a report in November 2018,[75] in which she reviewed and commented on the medical records and Dr Varghese’s reports.  She noted consistent references in the medical records to Ms Behmen referring to anxiety and panic attacks associated with driving, from October 2015 through to 2018.  She considered that Ms Behmen was at a high risk of expressing psychological distress through physical symptoms and pain, so her pain perception may be increased as a result of her psychiatric conditions due to the accident.  She did not consider that traffic anxiety was sufficiently explained by major depressive disorder only;  it was consistent with having been caused only by the accident.  She disagreed with Dr Varghese’s opinion that most of Ms Behmen’s depression was due to postnatal depression, principally because she had traffic anxiety before she became pregnant.

    [75]Exhibit 1.6:53.

60. Dr Chau maintained her opinion that Ms Behmen was more likely to have developed adjustment disorder with mixed anxiety and depressed mood rather than a major depressive disorder.  The latter would involve a pervasive, constantly depressed mood, while with adjustment disorder the mood and anxiety symptoms fluctuate according to triggers, in this case being reminders of the accident and aggravation of pain, including feeling depressed about the effects of the pain on her life.

61. Dr Chau considered that hyperthyroidism did not usually present as depressive symptoms and therefore it was not enough to explain her symptoms since the accident.

62. Dr Chau maintained her view that Ms Behmen had a whole person impairment of 19%.

63. The defendants’ solicitors engaged Dr  Ulahannan to undertake a review of Ms Behmen’s records and to advise on questions about her thyroid condition.  Dr Ulahannan produced a report on 15 April 2019[76] and also confirmed the accuracy of a diary note of a conversation with him in August 2019, explaining a few matters in his report.[77]  I mention this here because it was relevant to the opinions of Dr Chau and Dr Varghese.

    [76]Exhibit 1.19.

    [77]Exhibit 1.20.

64. Dr Ulahannan considered that Ms Behmen’s condition was Graves’ disease and had been poorly and inadequately treated.  He reported that hyperthyroidism can cause psychological symptoms such as panic, anxiety, nervousness and depression.  It is known to be associated with depression, which often occurs.  He also noted that, due to the autoimmune nature of thyroid dysfunction, abnormalities of thyroid function, including overactivity, may be present for months or years before clinical detection.  However, given that Ms Behmen had a clinical onset of symptoms at the time of thyroid biochemical abnormality in June 2018, it was most likely that the onset of her thyrotoxicosis was at that time or a few months before then.

65. Dr Varghese saw Dr Ulahannan’s report and commented on it in a letter tendered before me.[78]  Dr Varghese commented that the importance of thyrotoxicosis in Ms Behmen’s emotional state cannot be overemphasised.  Almost the entire clinical picture, and certainly the failure of the depression and anxiety to improve with treatment and time, can be related to thyroid status.  He went on to say that, given the biological aspects of thyrotoxicosis in the postnatal period, it is probable that the clinical situation would be no different in the absence of the motor vehicle accident. He concluded again that her major depression is eminently treatable and usually responds to biological treatments, but she is unlikely to improve if she remains thyrotoxic.

    [78]Exhibit 1.17.

66. Ms Behmen saw Dr Chau again shortly before trial, on 19 August 2019.[79]  On this occasion, Ms Behmen denied ever being constantly depressed (24 hours a day) for at least 2 weeks at a time.  She told Dr Chau that her mood fluctuated from 2 to 10/10 depending on her pain severity and anxiety.  She struggled with motivation, but her motivation levels also fluctuated depending on anxiety and pain.  She was fearful of aggravating pain or re-injury, which made her over cautious in general.  She said that, since the accident, she had tried driving alone locally a couple of times, but she gets anxious and panicky, cries and has palpitations.  She still required a companion to leave the house as she could not drive on her own.  She got anxious driving in general.  Because of her fear of having an accident she needed a companion to travel anywhere.  She would sometimes go grocery shopping with her mother when she felt really down being at home.  Her mother still did most of the housework.

    [79]Her report is exhibit 1.8.

67. Dr Chau expressed the opinion that the accident was the major significant contributing factor to the development of Ms Behmen’s psychiatric injuries.  Her mental state deteriorated immediately following the accident.  Her reported anxiety was consistent with having been caused by the accident and was still a significant issue that affected her ability to leave her home independently.

68. Dr Chau continued to consider that Ms Behmen has an adjustment disorder.  She estimated Ms Behmen’s whole person impairment as 7%, but noted the adjustment disorder will fluctuate according to life circumstances and could worsen with future life stress or aggravation.  In her PIRS assessment, Dr Chau said that Ms Behmen is capable of working in a low stress job that does not aggravate pain, in a supportive environment, for up to 20 hours a week.

Occupational therapists

69. Ms Behmen saw two occupational therapists, who assessed her physical abilities and the levels of gratuitous care that she had required and would be likely to require in the future.  While it will be necessary to address these persons’ reports when I come to assess damages for gratuitous care, it is relevant now to record what they report Ms Behmen told them and how she appeared to them.

70. She first saw Mr Sven Roehrs, who was engaged by her solicitors, on 28 March 2018.[80]  He records that she told him that she had constant neck pain on the right side, right sided shoulder pain in the upper trapezius, right sided shoulder pain behind the scapula, reduced neck movement, headaches three times a day, lower back pain, helplessness, anxiety, panic attacks, a phobia about cars, loss of sleep and flashbacks.  She said that she was generally independent as to personal care, but had difficulties reaching to wash, brush or dry hair and bending to dress lower limbs.  Her mother occasionally helped her by blow drying her hair.  Since the accident, she had significant limitations in her ability to undertake domestic tasks.  Her mother took on the majority of her load in that respect.  Her pain levels fluctuate from day to day, but her functional ability to undertake domestic tasks had remained relatively consistent since the accident.  She also relied on her mother and partner to take care of her daughter.  She was unable to do shopping, cooking, gardening, washing, vacuuming, mopping, sweeping or bathroom cleaning.  Before the accident, she had shared all the domestic tasks with her mother.

    [80]His report is exhibit 1.9.

71. Ms Behmen also saw Ms Anne White, engaged by the defendant’s solicitors, on 16 May 2018.[81]  She records that Ms Behmen told her that she had constant aching on the right side of her neck and thoracic spine, which was aggravated by sitting, standing or walking, for more than 20 minutes and in colder weather.  She took Panadeine Forte about every second day for episodes of aggravation.  She also had headaches and took Panadol daily for them.  She experienced panic attacks associated with flashbacks of the accident, at least once a day and at night.  They resulted in her hyperventilating.

    [81]Her report is exhibit 1.18.

72. Ms Behmen told Ms White that she was independent in her personal care.  Before the accident she was responsible only for keeping her bedroom and belongings tidy and undertaking odd jobs if she was available and was asked for help.[82]  Her parents were responsible for all the domestic tasks in the home.  Since about two weeks after the accident, she had stopped completing the tasks for which she had been responsible, due to pain.  Her mother tended to all her daughter’s needs, including bathing her and changing her nappies.

    [82]That was inconsistent with her evidence in court, summarised at [22] above, in which she said she had shared household duties with her mother and, to some extent, her father.

73. On examination, Ms Behmen demonstrated significant reduction in the range of movement of her neck and right shoulder, as well as her lower back.  She was unable to lift pegs from a bucket on the floor and put them in a peg board at the full upper limb reach.  When she placed the bucket at shoulder height, she used only her left arm.  When asked why she did not use her right arm, she said that she didn’t do anything, “so I don’t use my right arm.”  Her right hand grip strength was minimal.

74. In cross-examination, Ms White said that it is very rare for someone with a soft tissue injury, in the absence of any other underlying conditions, to have difficulty with sedentary work.[83]  She went on to say that, in an office environment, there is usually plenty of opportunity for a person to move around, stand up, move the neck and shoulders and not hold one’s neck and back in static positions for long periods of time, so people with sore necks can work normally doing sedentary work.[84]

    [83]T3-23:19-21.

    [84]T3-23:40 to T3-24:23.

Ms Behmen’s evidence of her current medical and personal circumstances

75. Ms Behmen gave evidence about the accident and its immediate aftermath.[85]  To recap, she said that over the days and weeks following the accident she was in a lot of pain and felt really sick and had headaches.  She took a few days off work and returned to work but found that she had difficulty fulfilling all her tasks because of the pain.  Some of her tasks were taken over by her manager.  She also had difficulties driving, finding herself to be really anxious so that she would have to stop on the side of the road and calm down.  After some period, she consulted her general practitioner, Dr Henry Ho, about her anxiety and he prescribed Valium and referred her to a psychologist.  She believes that was after she had finished work, which she thought was in April (but clearly was in June) 2016.

    [85]See [19] above.

76. Ms Behmen said that she still experiences back pain, neck pain, anxiety and headaches that vary in intensity each day.[86]  She said that carrying heavy items and sitting or standing for long periods worsen her back pain.[87]  Moving her head to the right, bending her head down, sitting for long periods and trying to lift heavy items increase her neck pain.[88]

    [86]T1-20:41-43.

    [87]T1-21:7-13.

    [88]T1-21:15-35.

77. To relieve her pain symptoms, Ms Behmen said she takes Panadeine Forte two to three times a week,[89] taking Panadol instead when her symptoms are less severe.[90]

    [89]T1-21:40-44.

    [90]T1-22:1-3; T1-23:11-13.

78. Ms Behmen said she takes diazepam when she feels anxious.[91]  She was previously prescribed Avanza for her anxiety.[92]  She also reported taking Neo-Mercazole for hyperthyroidism.[93]

    [91]T1-22:1-6.

    [92]T1-25:11-14.

    [93]T1-22:9-10.

Plaintiff’s ability to complete household tasks

79. Ms Behmen gave evidence in chief that, since the accident, she has had difficulties assisting in household tasks and it often falls to her mother, father and former partner to perform housework.[94]  However, she said, on her “good days” she can cook, fold laundry, mop, sweep and go shopping[95] and she is able to lift things.[96]  She would not be able to complete these tasks on her “bad days” due to pain.[97]  She is not able to hang out laundry or clean bathrooms, even on her good days.[98]  She is not able to do laundry and she is unable to bend over.[99]  She also said that she has more bad days than good days.[100]  Ms Behmen said, during cross-examination, that on her bad days when her neck is sore, it prevents her from moving her neck and causes pain.[101]

    [94]T1-33:16-20.

    [95]T1-34:22-31.

    [96]T1-55:17-18.

    [97]T1-34:33-35.

    [98]T1-34:17-18, 23.

    [99]T2-37:29-33.

    [100]T1-48:42-43.

    [101]T1-70:9-11.

80. During cross-examination, Ms Behmen said that, on her good days, she is able to lift items such as shopping bags and to push trolleys.[102]  She also said that, although she generally avoids being in a car, even as a passenger, on her good days she is able to be in a car.[103]

    [102]T1-55:16-18, 37-44.

    [103]T1-65:30-42.

81. Ms Behmen said that when she experiences neck and back pain, she is unable to lift her daughter.[104]  She requires assistance with washing her daughter’s clothes and cooking for her daughter.[105]  She is able to dress her daughter, and is sometimes able to bathe her, although her mother does this when she is experiencing pain.[106]  Ms Behmen said she is able to take her daughter out to places with the assistance of her mother.[107]  She said she is now able to feed her daughter.[108]

    [104]T1-31:18-19.

    [105]T1-31:21-23.

    [106]T1-31:25-31.

    [107]T1-31:33-40.

    [108]T1-90:45.

82. Ms Behmen said that, on her good days, she would try to go out with friends to a local coffee shop or one of their homes, or she would be at home with her daughter.[109]

    [109]T1-27:29-37.

Dzana Behmen’s evidence

83. Ms Behmen’s mother, Dzana Behmen, gave evidence that supported Ms Behmen’s evidence about her life and social activities before the accident.  Her evidence also supported Ms Behmen’s evidence of her reaction and pain in the days following the accident.  I shall not set out Mrs Behmen’s evidence on these matters, as I accept those parts of both witnesses’ evidence and I do not understand the defendants to dispute its substance.

84. Mrs Behmen said that, over the few weeks after the accident, she did not observe the plaintiff to be anxious, but she did complain of back pains and headaches.[110]

    [110]T2-68:28-34.

85. More generally, she said that, since the accident, Ms Behmen was not as social any more, was not happy anymore and was not able to do things she used to do, such as helping Mrs Behmen with jobs around the house.  She goes out sometimes with her friends, but mostly they come to their home.  She does not drive regularly, especially by herself, and appears to be anxious when driving or being driven.[111]  Many times at home she has appeared to be panicking and her breathing has been very fast.  That still happens, maybe once a week.[112]

    [111]T2-69.

    [112]T2-70:17-36.

86. Mrs Behmen said that, after Ms Behmen’s baby was born, she was not able to care for her due to pain, including changing her nappy, dressing her and rocking her.  Most of the caring was done by Mrs Behmen and Ms Behmen’s partner.  Mrs Behmen did not observe a change in Ms Behmen’s mood from before her baby was born to after.[113]

    [113]T2-72:1-7.

87. Mrs Behmen said Ms Behmen is no longer able to assist with general cleaning, cooking, laundry and grocery shopping, although lately she is sometimes able to assist with cooking when she feels okay.[114]  Mrs Behmen also said Ms Behmen sometimes goes with her to do grocery shopping.[115]

    [114]T2-71:14-45.

    [115]T2-73:1-2.

88. Mrs Behmen said Ms Behmen currently drives, on average, once or twice a week.[116] She said that she and Ms Behmen are generally together during the day, but that Ms Behmen drives once a week by herself.[117]

    [116]T2-73:12-15.

    [117]T2-73:17-19.

Plaintiff’s credit

89. For reasons that follow, I do not accept that Ms Behmen’s evidence about her level of disability was reliable.  In my view, she had a strong tendency to exaggerate the effects of the accident on her physical capabilities and on her mental health, both when she consulted doctors for the purposes of this proceeding and in giving her evidence.

90. The defendants’ counsel, Mr Morton, challenged Ms Behmen’s credit in a number of respects, concluding by submitting that I should not accept much of her evidence about her disabilities and other matters and I should find that she has not proved her case at all, or alternatively that I should be satisfied only that she suffered minor injuries that have not had and will not have long term effects on her and therefore I should award only a small amount of general damages and the Medicare refund.  I shall not address all of the matters going to credit that Mr Morton raised, but there are several matters that, to my mind, stand out as damaging to Ms Behmen’s credit and the reliability of her evidence.

Levels of function

91. Over the period since this proceeding commenced, Ms Behmen saw each of Dr Gan,[118] Dr Chau,[119] Dr Pincus[120] and Dr Varghese[121] on two occasions.  She also saw each of Mr Roehrs[122] and Ms White[123] once.  She described to them varying levels of ability to function, but she did not, at least in any clear terms, indicate to any of those practitioners that her capability to do certain tasks varied substantially from day to day.

    [118]12 October 2016 (exhibit 1.3) and 15 February 2019 (exhibit 1.4).

    [119]15 May 2017 (exhibit 1.5) and 19 August 2019 (exhibit 1.8).

    [120]16 November 2016 (exhibit 1.11) and 6 March 2019 (exhibit 1.12).

    [121]31 October 2017 (exhibit 1.13) and 22 October 2018 (exhibit 1.14).

    [122]28 March 2018 (exhibit 1.9).

    [123]16 May 2018 (exhibit 1.18).

92. For example:

(a)        on 12 October 2016, she told Dr Gan that sitting or standing for more than 15 minutes brought on pain, bending worsened the pain quite markedly and she could not lift any more than five kilograms; she could not wash clothes or hang washing, lift shopping bags or push shopping trolleys; she had an extremely restricted range of motion of her neck;[124]

[124]See [32] above. Mr Morton submitted this was contrary to earlier examinations by other practitioners, in which she was reported to have full or nearly full range of movement: defendants’ written outline at [28].

(b)        on 16 November 2016, she told Dr Pincus that the pain comes and goes, but she could not do anything and spent most of her time in bed; [125]

[125]See [35] and [43] above.

(c)        on 31 October 2017, she reported to Dr Varghese that she could not lift her child, she could not do anything, she could not take her child to the park, nor bottle feed, bathe or cook for her, she did not go shopping and she did not drive; and during that consultation she held her neck stiffly;[126]

[126]See [47] and [48] above.

(d)        on 28 March 2018, she told Mr Roehrs that, while her pain levels fluctuated from day to day, she was unable to do any household tasks;[127]

[127]See [70] above.

(e) on 16 May 2018, she told Ms White that she didn’t do anything, she had only breastfed her daughter for about two weeks,[128] and she demonstrated minimal grip strength and a complete inability to raise her right arm;

[128]In contrast to her report to her general practitioner, Dr Ho, in June 2017, that she was breastfeeding at that time, at least for “comfort feed[s]”, when her daughter was about four months old: exhibit 1.23:304.

(f)         when she saw Dr Varghese on 22 October 2018, she told him that she could not do things around the house, she could not look after her baby, including feeding or bathing her, she did no cooking or housework and she had a stiff neck;[129]

[129]See [52] above.

(g)        on 15 February 2019 she told Dr Gan that bending made her neck pain worse straight away, she could not lift anything heavy, including her child, turning her neck was very painful, she got panicky and scared when she drove, and she could not lift even light shopping bags, nor push trolleys;[130]

(h)        when she saw Dr Pincus on 6 March 2019, she said she could not move her neck at all, stating that it was “exquisitely tender” to touch;  she told him on that occasion that she had pain all the time and it varied in intensity, she said she “could not do anything”; [131]

(i)          when she saw Dr Chau on 19 August 2019, she said that her neck and back were every painful, but it “comes and goes”; she tried driving alone a couple of times locally and tried to drive with her mother once a week or less, but she got anxious and panicky, started crying and experienced palpitations; she required a companion to leave the house and could not drive on her own, although she sometimes went with her mother to go shopping; she definitely felt fearful of aggravating pain, which made her over-cautious in general.[132]

93. On none of those occasions did Ms Behmen tell the consulting practitioner that, on some days, she could do much more than on others, nor that, if she took a strong analgesic such as Panadeine Forte, she was able to move with much less, or even minimal, restrictions in movement and with little or no pain.

94. In her evidence in chief, Ms Behmen introduced the notion of having good days and bad days.  She said that she tried to take advantage of the days she was feeling good, when she would try to get out to a coffee shop or to see friends, she might be able to cook “here and there”, she could fold laundry, she could go grocery shopping with her mother and she could go to the shops and get some stuff on her own.[133]

    [133]T1-27:30-37; T1-34:11-31.

95. When tested about the practitioners’ reports in the course of her cross-examination, Ms Behmen had a tendency to assert that she was describing to each practitioner how she felt at that time,[134] rather than how she felt and what she could do from day to day.  She said that she had good days and bad days and, in effect, she tended to describe and demonstrate her bad days when she spoke to those practitioners.  Alternatively she would often say she could not recall what she had told the practitioners or how she felt at those times.[135]

    [134]For example, T1-48:5-7; T1-58:35; T1-70:14-15; T1-71:24-25; T1-75:17; T1-79:26; T1-98:34.

    [135]For example, T1-48:40; T1-65:23; T1-70:7; T1-71:13-25; T1-83:19-46.

96. Ms Behmen agreed that even on her good days she was careful not to do things that might trigger her pain.[136]

    [136]T1-49:1-2.

97. Many of the matters discussed above and which Mr Morton submits are damaging to the plaintiff’s credit might not individually have substantial weight.  However, taken together, they do cast considerable doubt on the reliability of Ms Behmen’s evidence and perhaps her memory.  Particularly damaging to her reliability, if not her credit, are her descriptions of her abilities to the various practitioners and her attempted explanation for them.  Her descriptions, as recorded by the practitioners, do not in any way suggest that she was only describing how she felt “at that time.”  She was clearly being asked, and was responding to, questions about how she felt and could operate from day to day.  She is clearly intelligent enough to have understood that she was not being asked simply about what she was feeling while at the practitioners’ rooms or on that day.  Her answers that she was describing how she felt “at that time” were not credible.

196. Under s 55(2) of the Act, the court may only award damages for loss of future earnings if it is satisfied that the person has suffered, or will suffer, loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. In the current matter, this involves a consideration of whether Ms Behmen has demonstrated, on the balance of probabilities, that her earning capacity has been diminished by reason of the accident-caused injuries and, if so, whether that diminution in earning capacity is or may be productive of financial loss.

197. In her August 2019 report, Dr Chau opined that, due to Ms Behmen’s generalised anxiety disorder, she is capable of working in a low-stress job in a supportive environment that does not aggravate pain, for up to 20 hours a week.[202]  On the basis of that opinion, Ms Behmen seeks future loss of income comprising half her anticipated net income for the remainder of her working life of 43 years to age 67.  Appropriately discounted, and on the assumption that her career average earning capacity would be $800 a week, she claims $262,640.

     [202]Exhibit 1.8:83.

198. Mr Wiltshire submitted that, alternatively, if I consider it more appropriate to make a global award, it should be substantial and not less than $100,000. I take that to mean an award under s 55 of the Act. Of course, I may only make such an award if I am satisfied that Ms Behmen’s earning capacity has been diminished by injuries caused by the accident and that diminution is or may be productive of financial loss.[203]

     [203]Brown v Holzberger [2017] QSC 54 at [96].

199. Mr Wiltshire’s submissions were on the assumption that Ms Behmen will never be able to return to full-time employment.  That is not the effect of Dr Chau’s evidence, which was that she is currently only able to work for a maximum of 20 hours a week.  Dr Chau opined in her first report, at a time when she considered that Ms Behmen was in a far worse state of health than in August 2019, that Ms Behmen should undertake treatment comprising at least 20 sessions with a clinical psychologist and possibly with antidepressants for at least five years.[204]  In her cross-examination, she also noted that Ms Behmen was exposing herself more to driving, which would partially explain the significant improvement in the PIRS rating in August this year.  She appeared to agree with the proposition that the more one exposes oneself to the object of one’s anxiety, the more that anxiety reduces.[205]

     [204]Exhibit 1.5:34.

     [205]T2-32:32-44.

200. Thus, at worst, if Ms Behmen were to undertake appropriate treatment, I would expect her to be capable of full-time employment within at most one year of commencing treatment.  In the meantime, she could work part-time.  On that basis, if she continued to have generalised anxiety disorder, her loss of future earning capacity would be limited to one year at half her expected wage.  Even if that wage were $800 a week (which seems unlikely at this time), that would total $20,800.

201. However, I concluded above that Ms Behmen’s disorder had substantially resolved by no later than October 2018.  I am not satisfied that her earning capacity in the future has been diminished by reason of accident-related injuries:  relevantly, her generalised anxiety disorder.  That being so, Ms Behmen has not proved that she has lost any future earning capacity due to any psychiatric or psychological condition.

202. Similarly, any ongoing residual pain she may have is not such as to prevent her working now or in the future.  Ms Behmen has not proved that she has lost any future earning capacity due to her physical injuries caused by the accident.

203. Therefore, I decline to award any damages for loss of future earning capacity.

Gratuitous services

204. Under s 59 of the Act, damages for gratuitous services to an injured person are not to be awarded unless the services are necessary, the need for them arises solely out of the injury, the services are provided or are to be provided for at least 6 hours a week for at least six months and the services are not of the same kind that were being provided for the injured person before the injury occurred.

205. Ms Behmen and her mother both gave evidence to the effect that, before her injury, she and her mother shared most of the jobs around the house, including cooking, cleaning, shopping and laundry, more or less equally, with Ms Behmen’s father also doing some of the jobs occasionally.  Effectively, they worked together to maintain their joint household.  They both gave evidence that, since the injury, Ms Behmen ceased altogether, for an unstated period, to undertake any of those tasks, but has since resumed occasionally helping with some.

206. After Ms Behmen’s daughter was born, she and Mrs Behmen said, Ms Behmen was unable to carry out any of the tasks of caring for her.  Those tasks, including feeding, clothing, bathing and playing with her daughter, were carried out by Mrs Behmen and Ms Behmen’s partner.  Over a later unspecified period, Ms Behmen gradually became capable of undertaking some of those tasks.

207. I accept that, for a period from the birth of Ms Behmen’s daughter, Mrs Behmen and Ms Behmen’s partner carried out most of the tasks of caring for the child.  While they would normally have assisted in those tasks in any event, it is likely that they spent more time than they otherwise would have due to the pain Ms Behmen was still suffering at that time.

208. The amounts of gratuitous care claimed by the plaintiff are based on a table of services and hours per week prepared by Mr Roehrs after discussions with Ms Behmen.[206]  Based on what Ms Behmen had told him and how she presented, Mr Roehrs concluded that Ms Behmen had, since the accident, required assistance in a number of domestic tasks, totalling 10.7 hours a week.  However, that included one hour of gardening, when the evidence was that there was no garden at the Behmens’ home.  Mr Roehrs said Ms Behmen had told him that, before the accident, she had done gardening for an hour a week and no longer could do so.  Any claim for assistance in gardening was abandoned at trial.  

     [206]Exhibit 1.9:90.

209. Mr Roehrs also estimated that she required about one hour of driving assistance per week and that the assistance she had obtained from her mother and partner, in caring for her daughter, was the equivalent of hiring a full-time live-in nanny at a weekly cost of $400.[207]

     [207]Exhibit 1.9:97.

210. Mrs Behmen said she has been caring for the child since she was born.[208]  I accept that she and Ms Behmen’s partner gave Ms Behmen substantial assistance after the birth, over and above the assistance that they would have provided in any event – for at least six months after the birth, reducing thereafter.  But their evidence is wholly inadequate to determine how many hours they assisted in each week over that period.

     [208]T2-71:20-33.

211. Apart from baby care and driving, all the other tasks undertaken for Ms Behmen by her mother were of the same kinds as she had previously provided under the family arrangements, so even though the extent of them was greater for the first 18 months or so after the accident, under s 59(2) no damages for gratuitous care may be awarded for those tasks. Viewed another way, the household maintenance types of care claimed to be needed by Ms Behmen were really the replacement, by her mother and partner, of services that Ms Behmen had previously provided for the household. Section 59 does not permit damages for the replacement of services previously provided by an injured person to others.[209]  Also, Ms Behmen did not herself give evidence that she needed the amounts of gratuitous care set out by Mr Roehrs.  In the absence of evidence by Ms Behmen, there is no persuasive evidence of her needs.

     [209]Leonardi v Payne [2009] QSC 382 at [53], [61]-[62]; Hunt v Lemura [2011] QSC 378 at [162]-[164].

212. On my findings, certainly by October 2018, and probably by no later than August 2018, Ms Behmen was able to carry out all the necessary tasks in caring for her child and around the household, even if Mrs Behmen continued to help her with the former.  But it would be natural and normal for a grandmother, with whom her daughter and granddaughter are living, to share in the tasks of looking after the child. 

213. Ms White estimated that Mrs Behmen and Ms Behmen’s partner had provided 3 hours per day of active care for the first 18 months of the child’s life.[210]  That appears to be her own estimate based on a child’s needs and Ms Behmen’s statements to her to the effect that her mother and partner between them entirely looked after the child.  Neither Ms Behmen nor her mother confirmed the hours involved, but I consider it to be within Ms White’s expertise to give a reliable estimate.  I therefore accept her evidence to that effect.  However, I consider it likely that they would have devoted at least half of that time to the baby’s care even if Ms Behmen had been entirely well and, if she had returned to work, either they or an employed person would have had to look after the baby.  Also, as I have said above, after the first six months I consider that the time required to assist Ms Behmen would have reduced as she slowly recovered.  In the meantime, 3 hours a day or less is not the equivalent of a full-time nanny.

     [210]Exhibit 1.18:171 at [66]

214. In those circumstances, it is appropriate to allow Ms Behmen a sum for gratuitous care for the child, at a cost of $25 an hour calculated at 1½ hours a day for the 6 months that she would have taken maternity leave and about half that time for 6 months thereafter.  That is, 10½ hours a week at $25 an hour for 26 weeks, and thereafter 5 hours a week for a further 26 weeks.  This totals $10,075.

215. I accept Mr Roehrs’ estimate of the driving assistance required for the relevant period of time.  Thus I will allow one hour a week for driving assistance at $25 an hour for 12 months, totalling $1,300.  This allows for decreasing amounts of assistance as Ms Behmen slowly recovered in the second half of 2017 and over the period to August 2018.

216. Therefore, I award Ms Behmen a total of $11,375 for past gratuitous services.

217. As I have found that Ms Behmen had substantially recovered by August 2018 or, at the latest, October 2018, she is not entitled to damages for future gratuitous care.

Future medical expenses

218. In her first report, Dr Chau opined that Ms Behmen needed to obtain treatment for her anxiety from a clinical psychologist for up to 20 sessions at an estimated cost of $150 to $250 per session.  She also said the addition of antidepressant medication for at least five years, at a cost of $35 to $70 a month, may be helpful. 

219. At that time (and, so far as I am aware, at all times since) Ms Behmen had declined to obtain any such treatment.  One might wonder whether she would undergo treatment now, but I consider that I should take Dr Chau’s recommendation into account.  Although the anxiety was overtaken by the depression due to biological causes, there is some risk that, now that the Graves’ disease appears to be mostly under control, the anxiety may return to some extent.  Thus it may be an appropriate time for Ms Behmen to accept Dr Chau’s recommended treatment for any residual anxiety.

220. While I have found that Ms Behmen has recovered from her anxiety, I consider that a course of treatment as recommended would be merited, to guard against its possible return or any last vestiges of it.

221. Accordingly, I consider that she is entitled to an award of $7,000 damages for future medical expenses, allowing $200 a session for 20 sessions of psychological treatment (a total of $4,000) and $50 a month for antidepressants for five years (a total of $3,000).

Total damages

222. Thus, I award Ms Behmen the following damages:

(a)        General damages  $5,760

(b)        Special damages  $637

(c)        Past economic loss  $9,600

(d)        Interest on past economic loss  $194

(e)        Past loss of superannuation  $912

(f)         Gratuitous care  $11,375

(g)        Future medical expenses  $7,000

Total$35,478  

223. I will enter judgment for that amount. 

224. I will hear from the parties on costs.