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  • Unreported Judgment

Behmen v Fogg

 

[2019] QDC 231

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. [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.
  1. [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.
  1. [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. [4]
    The issues arising in the case are:
  1. (a)
    the force of the impact to Ms Behmen’s vehicle;
  1. (b)
    the extent of Ms Behmen’s cervical spine injury;
  1. (c)
    whether Ms Behmen suffered any injury to her thoracic spine and, if so, the extent of that injury;
  1. (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;
  1. (e)
    whether Ms Behmen’s psychiatric illness or disorder was a result of the accident;
  1. (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
  1. (g)
    the quantum of damages that should be awarded to Ms Behmen.[2]

Events following the accident and early symptoms

  1. [5]
    The following facts, which are largely uncontentious, derive from the plaintiff’s evidence and, where indicated, documentary exhibits.
  1. [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]
  1. [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 symptomscontinued after she arrived home.
  1. [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.
  1. [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.
  1. [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]
  1. [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]

Ms Behmen’s evidence of her personal and employment history

  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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]
  1. [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]

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

  1. [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]
  1. [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]
  1. [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]
  1. [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]
  1. [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]
  1. [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]

Date

Page No. of exhibit 1.23

Complaint (taken from medical reports)

06.10.15

286

Left-sided neck pain, headache, right wrist pain and tenderness in the right lower 9th rib area. Examination showed some neck pain, neck tenderness and mildly reduced range of neck movement and mild right wrist tenderness.

16.10.15

288

Right wrist pain improved, neck still painful, right chest wall/upper back pain. Examination showed 30° “side bend” [lateral flexion] bilaterally (normal is 45°) with a bit of pain.

21.11.15

289

Back/neck still. Examination showed pain on flexion and reduced extension and right rotation.

06.01.16

290

Insomnia last night. Neck, upper back pain, more on R side. Painful since MVA OCT 2015. Examination: full cervical range with tenderness of the neck and upper thoracic spine; full thoracic range with stiffness/pain on flexion and extension.

16.01.16

291

“Whiplash” still painful.

13.02.16

292

Ongoing neck pain.

11.05.16

292

Still neck pain/back pain. Work: sitting at desk all day.

03.08.16

298

Last night back/neck pain. No sport. Bad last night.

11.10.17

304

MVA 2015 ongoing headaches, neck and upper back pain since.

21.03.18

306

Want get mental health plan, to get help for her mood. Feels needs counselling soon. Since MVA has started feeling stress, anxiety, panic attacks and depression. Chronic right side neck and upper back pain since MVA 2015, no new injury. Reduced neck movement, tender right side neck lateral, lateral side paravertebral thoracic spine. Prescribed Avanza, Panadeine Forte.

  1. [25]
    In addition, I have noted the following appointments:

Date

Page and exhibit No.

Complaint

04.08.16

Ex 1.23:299

Anxiety and Avanza withdrawals.

23.08.16

Ex 1.28:402

Left frontal headache. Throbbing pain. Nausea and vomiting.

19.06.17

Ex 1.23:304

Still has anxiety since MVA in 2015. “No neck stiff”.

11.10.17

Ex 1.23:304

Ongoing headaches, neck and upper back pain. Has had scans done but no obvious cause has been found. “Sounds like unresolved whiplash”.

  1. [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.
  1. [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]
  1. [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]
  1. [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]

Experts’ reports

  1. [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

  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [41]
    Combining the injuries resulted in an overall whole person impairment of 13%.
  1. [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.
  1. [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”.
  1. [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.

Psychiatrists

  1. [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.
  1. [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.
  1. [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.
  1. [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 symptomswas 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.
  1. [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.
  1. [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.
  1. [51]
    DrFrank 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.
  1. [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.
  1. [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.
  1. [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.
  1. [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]
  1. [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]
  1. [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]
  1. [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]
  1. [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.
  1. [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.
  1. [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.
  1. [62]
    Dr Chau maintained her view that Ms Behmen had a whole person impairment of 19%.
  1. [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.
  1. [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 symptomsat 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.
  1. [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.
  1. [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.
  1. [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.
  1. [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

  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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]

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

  1. [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.
  1. [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]
  1. [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]
  1. [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]

Plaintiff’s ability to complete household tasks

  1. [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]
  1. [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]
  1. [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]
  1. [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]

Dzana Behmen’s evidence

  1. [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.
  1. [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]
  1. [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]
  1. [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]
  1. [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]
  1. [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]

Plaintiff’s credit

  1. [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.
  1. [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

  1. [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.
  1. [92]
    For example:
  1. (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]
  1. (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]
  1. (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]
  1. (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]
  1. (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;
  1. (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]
  1. (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]
  1. (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]
  1. (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]
  1. [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.
  1. [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]
  1. [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]
  1. [96]
    Ms Behmen agreed that even on her good days she was careful not to do things that might trigger her pain.[136]
  1. [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.

Ms Behmen’smedication

  1. [98]
    Exhibit 3 contains video recordings taken of Ms Behmen on 9 August 2018 and 22 October 2018.[137] I will discuss the videos in more detail later, but they showed Ms Behmen, among other things, turning her head and her body from side to side, pushing a loaded shopping trolley and carrying and lifting her daughter. After being shown the 22 October 2018 video, she said that she would have been able to do those things because she must have taken Panadeine Forte.[138] Mr Morton submitted that I should not accept that evidence, as there were no medical records showing that, at that time, she had a prescription for that medicine, or would be likely to have any remaining from earlier prescriptions, nor would she have received so much relief from taking it that she could have done what she did with such apparent ease and no pain.
  1. [99]
    It has therefore been necessary for me to review the medical records in evidence. Those records show that Ms Behmen’s doctors have prescribed, or advised her to take, a number of medicines since the accident. The legible records list the following:

Date

Exhibit and Page No.

Medical professional

Prescription and notes

04.10.15

1.21:189

Dr Anne Gisik

Paracetamol and ibuprofen as needed.

06.10.15

1.23:286-288

Dr Somalatha Jayakody Arachchige

Panadeine Forte, 1 to 2 tablet/s every 6 hours as needed for 3 days.

16.10.15

1.23:288-289

Dr Henry Ho

Valium, 1 tablet daily as needed.

Voltaren Rapid, 1 tablet three times a day with meals as needed.

21.11.15

1.23:289-290

Dr Henry Ho

Mobic[139], 1 tablet daily as needed.

Valium, 1 tablet daily as needed.

06.01.16

1.23:290-291

Dr Henry Ho

Mobic, 1 tablet daily as needed.

Valium, 1 tablet daily as needed.

13.02.16

1.23:292

Dr Henry Ho

Mobic ceased.

Panadeine Forte, 1 to 2 tablet/s every 6 hours as needed.

Zoloft, 1 tablet daily.

11.05.16

1.23:292

Dr Henry Ho

Panadeine Forte, 1 to 2 tablet/s every 6 hours as needed.

Zoloft ceased.

Avanza, 1 tablet daily.

21.06.18

1.22:211

Dr Alexander Serdiuk

Neo-Mercazole for hyperthyroidism.

03.08.16

1.23:298-299

Dr Henry Ho

Avanza ceased 1 week prior due to pregnancy.

Panadeine Forte, 1 to 2 tablet/s every 6 hours as needed.

04.08.16

1.23:299-300

Dr Henry Ho

Started taking Avanza again, experienced withdrawal side effects.

19.06.17

1.23:304

Dr Henry Ho

Avanza ceased.

Panadeine Forte, 1 to 2 tablet/s every 6 hours as needed.

Stilnox[140], 1 tablet in the evening as needed.

11.10.17

1.23:304-305

Dr Ann Banh

Avanza, 1 tablet in the evening.

Panadeine Forte, 1 to 2 tablet/s three times a day as needed.

Palexia[141], 1 tablet daily for 3 days. If tolerating, increase to twice a day.

21.03.18

1.23:306-307

Dr Somalatha Jayakody Arachchige

Avanza Soltab, 1 tablet in the evening.

Panadeine Forte, 1 to 2 tablet/s three times a day as needed.

09.04.18

1.23:307

Dr Henry Ho

Panadeine Forte ceased.

  1. [100]
    Dr Ho reported on 9 April 2018 that Ms Behmen had ceased taking Panadeine Forte.[142] It should be noted that Ms Behmen commenced attending on Dr Serdiuk after this time.[143] The copy of Dr Serdiuk’s records provided in the trial bundle[144] is, for the most part, difficult to read. It is unclear whether Dr Serdiuk prescribed Ms Behmen Panadeine Forte at any time before 22 October 2018, however, based on what can be made out from the records, it does not appear that Panadeine Forte, nor any equivalent medicine, was prescribed. Certainly counsel for Ms Behmen, Mr Wiltshire, did not point out any reference to such a prescription, nor did he ask Dr Serdiuk whether he had given any such prescription to Ms Behmen. Indeed, Dr Serdiuk seemsto have been concerned almost exclusively with her hyperthyroidism.
  1. [101]
    The only mention of pain in Dr Serdiuk’s records, so far as I can understand them, is an entry made on 29 October 2018. That was after he had received a letter dated 23 October from Dr Varghese[145] expressing deep concerns about Ms Behmen’s depression and noting that her physical pain symptomspersisted. Dr Serdiuk’s note of his consultation with Ms Behmen on 29 October,[146] so far as I can understand it, records that Ms Behmen was complaining of back pain and the treatment recorded was to take Nurofen Plus. He records “no help with Panadol.”
  1. [102]
    Having regard to the medical evidence and the absence of any prescription or other records, Ms Behmen has not satisfied me that she had any Panadeine Forte, or an equivalent medicine, available to her. Nor has she satisfied me that she took such medicine on 9 August 2018 at all, nor on 22 October 2018 between seeing Dr Varghese and when she was filmed crossing the road or at any other time.
  1. [103]
    Dr Gan gave evidence that there is no such thing as a person in pain 24 hours a day to the degree that they cannot do anything. He also said that when the plaintiff takes Panadeine Forte, with relief in her symptomsshe can do more.[147] Dr Pincus agreed that, if she was to take strong medication like Panadeine Forte, which reduces her pain, she is likely to be able to do more from an activity perspective than if she had stronger pain.[148] Ms White opined that, although having less pain after taking a medicine like Panadeine Forte would be likely to enable a person to do more activities, a person with chronic pain would still engage in avoidance of activities that the person knows is likely to stir up pain.[149] Even Ms Behmen said she would avoid activities that might trigger her pain.[150]
  1. [104]
    In the light of this evidence, I consider it highly unlikely that, if Ms Behmen had been in as much pain and if she was as restricted in her movements as she told Dr Varghese that morning, Panadeine Forte, or an equivalent medicine, would have relieved that pain to such an extent that she could have moved as freely and as apparently pain-free, as she did only two hours or so later, let alone that afternoon.

Video evidence

  1. [105]
    Most telling, and most damaging to Ms Behmen’s credit, was the video evidence of her movements on 9 August 2018 and, even more so, on 22 October 2018. It is important for understanding these reasons that I attempt to describe what is shown in those videos.[151]
  1. [106]
    In the video obtained on 9 August 2018, Ms Behmen is seen to exit her premises carrying her daughter on her left hip. She opened the left rear door of a car (a BMW 4-wheel drive) with her right hand. She is then seen to turn her head quickly and fully to the right and to swing her daughter onto her right hip. She then secured the child in a child seat in the vehicle, bending her back forward and twisting it to the right in order to do so, as well as twisting her head and torso to the left before straightening up. She then closed the door, using her right hand across her body, while looking to the right, then walked around the car and entered the driver’s seat. Her mother then arrived and entered the front passenger seat.
  1. [107]
    During those activities Ms Behmen exhibited no signs of stiffness, discomfort or pain, nor any guardedness in her movements. She appeared to move her cervical, thoracic and lumbar spine normally with no suggestion of any restriction in movement.
  1. [108]
    In the video undertaken on 22 October 2018 (the day Ms Behmen saw Dr Varghese the second time):
  1. (a)
    Ms Behmen is seen to walk with her mother along what appears to be Wickham Terrace, near the building in which she met Dr Varghese, and then Wharf Street, starting at about 11.46am and continuing, with breaks, until about 12.01pm, when she entered the front passenger seat of a vehicle which left the area. For most of that time she appears to be walking slowly and stiffly.
  1. (b)
    About half an hour later, Ms Behmen and her mother are shown walking along another street, apparently in a different suburb. Ms Behmen turns her neck freely and fully to the left and right whilst apparently looking for traffic and speaking to her mother. She crosses the road quite quickly with no apparent stiffness. There is no suggestion of pain or discomfort.
  1. (c)
    They then drove home, with her mother driving. Shortly after 1.15pm they left, with her mother driving again, arriving in the carpark of Westfield Carindale shopping centre at about 1.30pm.
  1. (d)
    They are then seen entering “Adventureland” at about 1.40pm, with Ms Behmen carrying her daughter on her right hip. They are accompanied by an apparently slightly older child. At about 2.05pm, Ms Behmen left Adventureland and returned alone to the vehicle. She drove to her home, arriving at about 2.15pm. Leaving about a minute later, she drove back to the car park of the shopping centre, where she arrived at about 2.25pm. At about 3.03pm, she is shown in the food hall, where she waited for about five minutes before returning to Adventureland, again walking without any apparent discomfort or disability.
  1. (e)
    The video evidence shows that, while Ms Behmen and her mother were at Carindale Shopping Centre, at about 3.20pm a blue Mitsubishi vehicle arrived at the car park and parked next to the vehicle in which Ms Behmen and her mother had arrived. The car was driven by Ms Behmen’s partner. Mrs Behmen is then seen to arrive at 3.25pm and to drive that vehicle away.
  1. (f)
    The next time Ms Behmen is seen is at 5.27pm, when she enters the car park pushing a shopping trolley, in which there are two large, full shopping bags, a two litre bottle of milk, a large packet of what appear to be nappies and two packages of what appear to be eight one or 1.25 litre bottles (so each package would weigh about eight to ten kilograms). She is next seen with the older child already in the vehicle (a Mitsubishi Triton). Using both her arms, she lifts her daughter from the trolley and turns around to her left to put her in the child seat, bending and turning her spine as necessary to do up the seatbelt. Having secured her child in the seat, she unclips the canvas top of the rear section of the vehicle and lowers the tailgate using her right arm. She then loads the contents of the shopping trolley into the rear of the vehicle. In doing so she uses her right arm to lift one of the shopping bags and to push them both into the tray of the vehicle, twisting her back to the left as necessary. She picks up with both hands from the trolley, one at a time, the two packages of bottled water. She uses her right arm to push each pack of bottled water into the tray of the utility. She also lifts what seems to be a two litre bottle of milk using her right arm. She raises the tailgate with her right arm alone and clips down the cover. The tailgate appears to be awkward and heavy to lift. She then lifts her right arm to about shoulder height to touch the top of the cover as she walks along the left side of the vehicle. She then closes the rear door, using her right arm across her body, takes the trolley somewhere and returns to enter the driver’s seat.
  1. (g)
    Before moving the car Ms Behmen turns her head to the left to look around behind her and manages to turn her cervical spine fully. She then drives the vehicle from the car space and is seen turning her head freely and fully to the left and right as she does so. The vehicle proceeds for a few metres and then stops and a young male enters the passenger seat at about 5.33pm. Ms Behmen then drives the vehicle to her home, arriving at about 5.42pm.
  1. (h)
    During all these activities, Ms Behmen appears to move her neck, her back and her arms quite freely and without any apparent pain, discomfort or protective measures.
  1. [109]
    In his closing address, Mr Wiltshire described her activities shown in the video on 22 October as demonstrating “some slightly greater range of motion and participation in some activities that afternoon, which she has indicated she can’t do.”[152] With all due respect, that is a significant understatement. The video, especially of Ms Behmen’s movements in the afternoon, demonstrated no apparent restriction or discomfort in movements and range of motion in pushing a trolley with an apparently somewhat heavy load, bending, turning her head, picking up and manoeuvring her daughter, picking up shopping bags and parcels, lowering and lifting a heavy tailgate, no signs of agoraphobia and no apparent discomfort or concern in driving by herself for about 10 minutes at a time on two occasions.
  1. [110]
    During cross-examination about that video, Ms Behmen said, in respect of the 9 August recording, that she “would have been feeling really good that day.”[153] As I have previously noted, after being shown the 22 October 2018 video she said that she would have been able to do those things because she must have taken Panadeine Forte.[154]
  1. [111]
    The video evidence of her abilities in the late morning and afternoon on 22 October 2018 are particularly important because they contrast so significantly with her presentation to Dr Varghese that morning. They are also inconsistent with her movements recorded on leaving Dr Varghese’s rooms, where she appeared to be moving slowly and stiffly, in marked contrast to her movements later that day, once she was in different areas far from those rooms.
  1. [112]
    I do not accept that her movements in the area of Dr Varghese’s roomswere demonstrative of her true condition and restrictions. It is curious indeed that she appeared, on that occasion, to be restricted and careful in how she moved, but only about half an hour later she appeared to have no restrictions in moving her neck, nor in walking comfortably, and then throughout the afternoon she operated as any uninjured person her age might be expected to do. The differences that day simply cannot be explained by her assertion that she must have taken Panadeine Forte after leaving Dr Varghese’s rooms. It is inconsistent with Ms White’s evidence that a person with chronic pain would still engage in avoidance of activities that the person knows is likely to stir up pain, even having taken a pain killer. It is also inconsistent with Ms Behmen’s own evidence that, even on her good days, she was careful not to do things that might trigger her pain. Her activities recorded on the video, especially that afternoon, do not demonstrate any carefulness in how she treated her body. They are entirely inconsistent with how one might expect a person, with such chronic and acute pain as she reported having, to move in order to protect herself from bringing on more pain, even if she had taken analgesic medicine.
  1. [113]
    Dr Varghese, Dr Pincus and Ms White each gave evidence commenting on Ms Behmen’s disabilities evident from the video.[155]
  1. [114]
    Dr Varghese said the video was inconsistent with how she presented to him earlier that day. In particular, she was clearly able to operate on her own outside the house, she was able to attend to her child and she clearly does not have a traffic phobia. There appears to be little if anything physically wrong with her and therefore, if she does indeed suffer from major depression, as he had diagnosed her based on her presentations to him, it was not linked to the accident but most probably stems from postnatal depression and the consequences of her poorly managed and treated thyroid problem. He expanded on these comments in cross-examination, saying that her movements, particularly when alone, did not fit with the account she had given to him that morning of severe agoraphobia and depression.[156] In re-examination, he agreed that, if what she had reported to him were true, he would not expect her to be able to go alone to the car park, especially with her daughter.[157]
  1. [115]
    Dr Pincus said that her level of activity was dramatically larger that she had indicated to him and inconsistent with what she had reported to him and to other practitioners about the restrictions on her abilities. The video showed that she had a free and unrestricted range of motion in all parts of her cervical spine, as well as normal movement of her thoracic and lumbar spine and both her arms and shoulders. There is no orthopaedic explanation why she would have such a complete and free range of movement in October 2018 and no movement when she saw him in March 2019.
  1. [116]
    Dr Pincus went on to say that the video demonstrates that Ms Behmen would be capable of doing all the tasks that Mr Roehrs said she needed care to undertake, such as grocery shopping and various tasks around the house. He said the video shows perfectly normal function without evidence of impairment or disability and there is no basis for concluding that Ms Behmen suffered any injury from the accident, except a minor and short-lived strain of the muscles of her cervical spine.
  1. [117]
    Ms White said that Ms Behmen’s ability to swing her daughter onto her right hip, to close the door using her right hand with her arm across her body and to rotate her neck fully to the right were inconsistent with her range of movement when she met Ms White and do not indicate any attempt to protect herself from pain. She noted other occasions on which Ms Behmen moved her head and her cervical spine freely and without discomfort, which was also inconsistent with how she presented to Ms White. Pushing the trolley with arms extended was inconsistent with a person having neck and shoulder pain and with her presentation when Ms White saw her. In cross-examination about her observations on the video, she accepted that if Ms Behmen had taken Panadeine Forte that day she may have had less pain and been less prevented from doing things due to pain. However, she went on to say that a person with chronic pain will avoid doing things that they know will aggravate pain.[158] She also said that having pain relief would not allow Ms Behmen to go from having no movement to full range of movement in her neck.
  1. [118]
    Dr Gan and Mr Roehrs also commented on what they saw in the video. Dr Gan said the video did not change the views he had expressed in his reports. In his view, Ms Behmen still presented as moving much more stiffly than might be expected of a woman of her age. He also considered that, when handling the shopping, she used both hands where one might expect a person her age to use one, and he thought the shopping bags appeared to be quite light (an observation with which I disagree). He also said that she may have been having a good day and her symptoms would have been relieved if she had taken Panadeine Forte.
  1. [119]
    I will take the opportunity now to comment on Dr Gan’s evidence. Under cross-examination he was argumentative and at times belligerent. I consider that he was at times advocating for Ms Behmen’s case rather than giving dispassionate evidence as an independent expert. Also, he was not careful in giving his evidence, not even having a copy of his first report with him. That meant that he was unable to assist Mr Morton when questioned about a clear inconsistency between what he reported was shown in an x-ray and an accompanying radiologist’s report and what was in fact said in that report. He was unable to say whether he had seen the x-ray itself or just the report. His report therefore had an unexplained inconsistency and I must prefer, in that respect, what the radiologist’s report said. For these reasons, I view his evidence with some scepticism where it is in conflict with other relevant experts, particularly Dr Pincus.
  1. [120]
    I found the other experts generally to be measured in their evidence and to be genuinely expressing independent opinions based on Ms Behmen’s medical records (where relevant), what they observed and were told by Ms Behmen, and their experience and expertise.
  1. [121]
    Mr Roehrs said that the video slightly changed his opinion, in that she has higher capacity to undertake tasks than he had thought. Predominantly, the difference was in the weight that she was able to lift, which appeared to be more than 1.5 kilograms. However, he did not consider that her ability to lift and move her daughter was unusual. She was able to push a heavier trolley than he would have thought possible, although he considered that, by pushing with her arms extended, that would reduce the load on her shoulders and neck (in contrast to Ms White, who considered that it would increase that load). He was not otherwise asked about Ms White’s comments on the video, nor did he express any disagreement with them.
  1. [122]
    Dr Chau was not asked, in her evidence in chief, to comment on the video. She had clearly seen it, as she mentioned it in her cross-examination.[159]

Other factors bearing on credit and reliability

  1. [123]
    Mr Morton relied on several other matters as demonstrating that the plaintiff was not a credible or reliable witness. As I said, while I have had regard to the other matters, I do not propose to analyse them here, although they do add to my adverse view about the reliability of Ms Behmen’s evidence. They comprise discrepancies between what she told some of the medical practitioners about the following matters and other evidence about those matters:
  1. (a)
    how many days she took off work as a result of the accident, in comparison with her employment records (the latter show a total of 3½ days);
  1. (b)
    what she could and could not do at home and with her daughter;
  1. (c)
    how often she drove (if at all) and how she reacted to doing so;
  1. (d)
    how many physiotherapy sessions she underwent; and
  1. (e)
    a number of other, comparatively minor, matters.
  1. [124]
    Mr Wiltshire submitted that, although her memory was understandably inaccurate in some respects, I should accept her as an honest and truthful witness whose evidence about her injuries and their effects on her ability to perform normally in daily life was clear.
  1. [125]
    Mr Wiltshire submitted that her evidence of her difficulties and pain were supported by her general practitioners’ contemporaneous records, in which she is recorded as having complained regularly of pain, anxiety and depression. She reported a significant flare-up of her anxiety and depressive symptoms when attempting to wean off her antidepressant medication once she was pregnant, which is the sort of detail that is unlikely to be subject to some form of fraud or even exaggeration. Her overall presentations to doctors have varied according to variations in the levels of her symptoms, rather than from any attempt to exaggerate her claim.
  1. [126]
    Mr Wiltshire also relied on the footage of Ms Behmen walking down Wickham Terrace and Wharf Street after seeing Dr Varghese, as clearly displaying her as a person with limited movement and limited affect, walking slowly and cautiously and without the spontaneity of movement which would be expected from a woman her age. I accept that that is how it could be seen, but when it is contrasted with her appearance less than half an hour later, it is not persuasive as evidence that she was truly in such a state. Rather, the contrast points to the possibility that, while she was near Dr Varghese’s rooms, she continued to walk with the stiffness she had displayed to him, either because she was feeling stiff from having maintained herself stiff or deliberately in case she was being observed, whereas she felt safe from observation in other locations later in the day.
  1. [127]
    Although Mr Wiltshire submitted that I should accept that she took Panadeine Forte that day (apparently some time in between the first and second parts of the video), I do not consider that there is any persuasive evidence that she did take such a medicine or that it would have enabled her to undertake the tasks shown in the video. I say this for a number of reasons.
  1. [128]
    First, her memory was apparently so poor that I do not accept that she actually remembered taking it that day. Indeed her evidence was not that she did take it, but that “I would’ve taken Panadol for my pain. Panadeine Forte, whatever” and “that day I would’ve taken Panadeine Forte to actually be able to get the pain away, as well.”[160] That evidence was entirely speculative and an attempt to justify her movements in the video that she had just seen for the first time.
  1. [129]
    Secondly, there is no evidence that she had a current prescription for, or any quantity of, that or a similar medicine. Thirdly, I do not accept that it would have made such a difference to her pain and abilities, particularly in such a short time. Fourthly, even if she had taken it and it had relieved her pain somewhat, if taken in the morning it is unlikely to have lasted until late that afternoon, when she left the shopping centre.
  1. [130]
    Finally, even if she had taken it that day, even twice, I accept Ms White's evidence that a person with chronic pain (which Ms Behmen purports to have) will avoid doing things that they know will stir them up and nothing in the video showed Ms Behmen taking any steps to avoid movements that might cause her pain to flare up once the medicine had worn off. Indeed, that is consistent with Ms Behmen’s statement to Dr Chau[161] and her own evidence.[162]
  1. [131]
    Mr Wiltshire also submitted that:
  1. (a)
    the surveillance operatives observed her house on a number of days on which they saw no sign of her, which is consistent with her evidence of her limited driving and outings;
  1. (b)
    when she was observed leaving the house, she almost always travelled with another person; the only occasion on which she drove on her own was when she drove from the shopping centre to her home and back, a journey of a few minutes each way, presumably in a familiar environment;
  1. (c)
    while she was at the shopping centre either her mother or, later, her partner, was also there; although she went to and from the car park, and also purchased some drinks on her own, she was never seen to be out of the house entirely on her own for any lengthy period, which is consistent with her evidence of anxiety about being out of the house alone.
  1. [132]
    I do not agree with those submissions:
  1. (a)
    the first point is mere speculation, as she could have been inside, but she could also have been somewhere else;
  1. (b)
    the second point appears valid, except that she was clearly comfortable going into the car park and driving to and from her home without any company;[163]
  1. (c)
    as to the third point, while I accept that Ms Behmen’s mother and then her partner apparently accompanied her to Adventureland, she was clearly able to move comfortably around a large shopping centre by herself and she may well not have been accompanied by anyone while shopping (there was no direct evidence by her, nor did her partner give evidence).

Conclusions on Ms Behmen’s credit and reliability

  1. [133]
    I find that Ms Behmen was not a reliable witness. In my view, as time went on after the accident and particularly as this case proceeded toward trial, she considerably and increasingly exaggerated her physical symptoms and limitations, both to the medical and other practitioners she saw and in this court. When asked to relate events of the past, she took no care to state that she was not sure, nor to check facts before she relayed them.
  1. [134]
    Indeed, she has even exaggerated the circumstances of the accident. On 6 October 2016 she told a general practitioner at the Stones Corner Medical Centre that the defendant’s car was driving at 70kmh.[164] She told Dr Chau that the first defendant’s car was “coming at us very fast” when she saw it in her rear view mirror.[165] Dr Pincus recorded that she told him that the car was travelling at 70kmh.[166] Mr Roehrs says she told him it hit her “at speed”[167] and Dr Varghese says she told him it was going very fast.[168] While I accept that these statements were all her estimates and it no doubt seemed to her, while stationary, that the first defendant’s car was approaching fast before it hit her car, that perception and her estimates were never credible when one sees (as she did almost immediately after the collision) the external evidence. The damage to her vehicle, as well as to herself and her passenger, would have been far greater if a vehicle travelling at that speed had hit her car in the rear. It is also likely that the airbags would have deployed, which did not happen. While not in itself damaging to her credit, it is an early indication of what became a persistent tendency to exaggerate and affects the reliability of her evidence generally.
  1. [135]
    There were inconsistencies between the plaintiff’s evidence, or her statements to practitioners whom she consulted for the purposes of this proceeding, and her general practitioners’ or other medical records, as well as inconsistencies between what she told different practitioners. Comparison of what she told various practitioners, or stated in the witness box, with contemporaneous records has often shown that what she said was wrong, whether deliberately or inadvertently. This applies, for example, when one compares the facts with what she told Dr Gan about how often she had had physiotherapy, what she told Mr Roehrs about gardening, what she told several of the practitioners about how much time she had had off work due to her injuries from the accident.
  1. [136]
    Similarly, she reported to Dr Varghese in October 2018 that she felt down all the time, depressed all day on a daily basis, although transiently cheered up by seeing her daughter happy or her partner.[169] That is inconsistent with what she told Dr Chau in August 2019, when she denied ever being constantly depressed (24 hours a day) for at least 2 weeks at a time, as her mood tended to fluctuate depending on pain severity and anxiety.[170]
  1. [137]
    While it is possible that her mood had improved between October 2018 and August 2019, particularly given that, by the latter date, she may have had her Graves’ disease more under control, having regard to the different reports that she gave respectively to Dr Chau and Dr Varghese on each occasion that she saw them, in which her reports to the former were both of less anxiety and feeling depressed than she stated in her reports to the latter, I consider it most likely that, when she saw Dr Varghese, she considerably exaggerated her symptoms.
  1. [138]
    Mr Morton records, in his written submission to me, the following examples of such inconsistencies:
  1. (a)
    Her presentation to Dr Gan on 12 October 2016 (a little over a year after the accident) was that she had headaches on a daily basis requiring her to take paracetamol and lie down.[171] It was said to have “not improved or worsened” and the pain was rated as 9/10 using the so-called visual analogue scale. She was unable to explain why, with such ostensibly terrible headaches, she had not mentioned headaches stemming from the accident to her general practitioner[172] except for the first presentation on 6 October 2015.[173]
  1. (b)
    When she saw Dr Gan on 12 October 2016 she mentioned headaches but did not mention any thoracic or lower back problems. Six weeks later when she saw Dr Pincus she did not mention headaches but did mention low back pain.
  1. [139]
    But most tellingly, as I have said, is a comparison of her disabilities as reported to the practitioners and her actions on the videos. Those videos demonstrated no apparent disability, either physical or – at least in respect of her reported agoraphobia and anxiety in driving alone – psychological. What she was shown to do on the videos was in complete contrast to what she told and how she presented to all the practitioners who assessed her and in her evidence before me. Her physical and psychological abilities as shown, especially in October 2018, were inconsistent with what she told Dr Varghese that very morning.[174]
  1. [140]
    In the circumstances, I do not accept Ms Behmen’s evidence except where it is consistent with contemporaneous records. This also affects the reliability of the practitioners’ assessments of her condition, as they are almost entirely based on what she told and showed them about her disabilities and her restrictions in movements.

Ms Behmen’s injuries

Physical injuries

  1. [141]
    While the first defendant’s vehicle was not travelling as fast as Ms Behmen has said, the collision was sufficiently violent to cause not insignificant damage to her car. It is clear, and I accept, that Ms Behmen suffered some soft tissue injury to her cervical spine as a result of the collision. So much is apparent from the records of her presentation to the Princess Alexandra Hospital on 4 October 2015, reporting pain in her neck and headaches,[175] and to a general practitioner on 6 October 2015, reporting and presenting with, among other things, pain in her neck, headaches, wrist pain, mild reduction in neck movement, but no thoracic spinal pain or restrictions.[176]
  1. [142]
    Over the 12 months or so after the accident, Ms Behmen reported mostly pain in her neck, sometimes extending to her right shoulder, or to the middle and right side of her back. However, she had a full range of movement apart from when she first visited Dr Gan in October 2016. Yet, in November 2016, Dr Pincus reported that she had no visible deformity of her cervical spine, no tenderness or spasm and full range of movement. She also reported headaches, apparently worsening over that period.
  1. [143]
    During 2017 and into 2018, Ms Behmen reported ongoing neck pain and occasionally back pain, with ongoing headaches, limited range of movement of her neck and accompanying tenderness. By May 2018 she reported being able to do very little due to pain and restricted movement. In March 2019 she reported to Dr Gan and to Dr Pincus that she did very little or nothing at home, she could not lift anything heavy or push trolleys and had no substantial range of movement in her cervical spine. These latter reports were, of course, entirely inconsistent with the movements and activities she displayed in August and October 2018, as shown in the video.
  1. [144]
    In my view, Ms Behmen is not, and never has been, as incapacitated as she contends. Most of the diagnoses of physical incapacity are based solely on her self-reporting (even to her mother). Spasms are an objective sign of an injury, and they were reported in her neck by Dr Gan on each occasion that she saw him,[177] as well as by Mr Roehrs in March 2018.[178] Dr Gan also reported spasm in Ms Behmen’s thoracic spine in February 2019, but Dr Pincus said there was no orthopaedic explanation for why that might be related to the accident.[179]
  1. [145]
    While there were apparently some spasms evident from time to time, I do not accept that they are indicative of any serious or ongoing injuries caused to Ms Behmen. I prefer Dr Pincus’ evidence that there is no orthopaedic explanation for her apparent physical condition on the second occasion on which he saw her. In the light of that evidence, as well as the video evidence, I conclude that she had and has no ongoing physical impairment.
  1. [146]
    As to the levels of pain (if any) that Ms Behmen claims to suffer, her claims are not supported by any diary of her difficulties, nor any records of medicines taken. This is despite the fact that she first saw solicitors about a claim by no later than January 2016,[180] after which one might ordinarily expect a person with such a claim to keep detailed records. Her claims are also belied by her activities recorded in August and October 2018.
  1. [147]
    In an amended statement of claim filed shortly before trial, Ms Behmen also claims injury to her thoracic spine. The only express evidence of injury to her thoracic spine came very late. Dr Gan diagnosed it in his March 2019 report, but I consider that he was a little too quick to do so when he was not aware of any prior indication of any injury to that part of the spine.[181] One might expect some scepticism and discussion of it in his report, but there is none of the former and little of the latter. I do not accept his evidence in this respect, nor that Ms Behmen has suffered any injury to her thoracic spine as a result of the accident. Once again, the video evidence is entirely inconsistent with any injury to that part of her spine, showing normal movement.
  1. [148]
    Thus I find that, although she had initial soft tissue injuries to her cervical spine that caused some physical pain and discomfort for a period, Ms Behmen has no ongoing physical impairment. Rather, any ongoing perception she has of pain and injury (if she really has any significant pain, of which I am not convinced) is a manifestation (conscious or not) of her psychiatric condition and perhaps of her desire to win this case.
  1. [149]
    I accept that the accident caused her some pain and anxiety in the first year or more after the accident and after her child was born. She needed some domestic assistance in 2016 and 2017, although not nearly as much as she asked for and was provided.[182] But, by the second half of 2018, she had recovered substantially. The video is not indicative of just a “good day”. It is clearly indicative of what she was able to do, even if sometimes she felt pain.

Psychiatric injuries

  1. [150]
    The collision clearly led to Ms Behmen’s initial anxiety about driving: it was a natural reaction in a young woman to be somewhat concerned about driving, and particularly about cars behind her, after such a collision. She first reported some anxiety to her general practitioner, Dr Ho, on 16 October 2015[183] and consistently reported it to him and others thereafter.
  1. [151]
    Dr Chau initially saw Ms Behmen in May 2017 and diagnosed her as having an adjustment disorder with mixed anxiety, depressed mood and social phobia, all of which she attributed to the accident.[184] When she saw her a second time, shortly before trial, Dr Chau concluded that she had generalised anxiety disorder as a consequence of the accident.[185] She disagrees with Dr Varghese’s diagnosis of major depression caused by postnatal depression and Graves’ disease, noting that Ms Behmen’s anxiety was consistently reported by her well before her pregnancy and the onset of Graves’ disease.
  1. [152]
    Dr Varghese disagrees with Dr Chau’s diagnoses. Based on Ms Behmen’s reports to him, he diagnosed her as having major depression in November 2017, which appeared to be considerably worse in October 2018. His evidence was that major depression is a biological disorder that is likely to have been brought on, in Ms Behmen’s case, by a number of factors, but principally postnatal depression and then Graves’ disease. As I recorded in [57] above, he said that 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.[186]
  1. [153]
    In his first report, Dr Varghese noted that the accident and Ms Behmen’s perception that she may have been severely injured could be regarded as the precipitant for the major depression.[187] “Precipitate” means to hasten the occurrence of, to bring about in haste or suddenly, rather than to be the cause of something, and that is how I understood his evidence.
  1. [154]
    Dr Varghese opined that Ms Behmen’s clinical situation would probably be no different in the absence of the motor vehicle accident.[188] However, it is clear to me that the pain and anxiety that Ms Behmen suffered originally were direct consequences of the accident. Similarly the anxiety in traffic and perhaps more generally appear to have resulted from the accident. Although Dr Varghese said that her depression was likely to have occurred even if the accident had not occurred,[189] he stated that it was one of several “multifactorial” triggers for the onset of depression. That is, it may have combined with other factors to trigger or precipitate her depression, but it did not cause it. The causes were, he opined, postnatal depression and then Graves’ disease.
  1. [155]
    It is difficult for me to determine which of Dr Chau and Dr Varghese’s respective diagnoses of Ms Behmen’s medical condition is more probably correct. The choice is between generalised anxiety disorder that can be linked more clearly to the anxiety originally caused by the accident and major depression caused by biological factors but perhaps triggered in part by the anxiety consequent on the accident.
  1. [156]
    Of course, both diagnoses are based on Ms Behmen’s self-reporting of her conditions, both to Drs Chau and Varghese and earlier, to her general practitioners. If, as I have found, Ms Behmen’s evidence about her physical disabilities cannot be believed, then that casts considerable doubt on her psychological condition. This is especially so given the inconsistencies between her reports to Dr Varghese about her agoraphobia, her reports to Dr Chau and Dr Varghese about her anxiety driving, and the evidence of her movements on 22 October 2018, when none of those reported conditions was apparent.
  1. [157]
    What is beyond doubt is that, by about March 2018, Ms Behmen had Graves’ disease, although it was not diagnosed until June 2018. As both Dr Ulahannan and Dr Varghese said, depression and anxiety are known complications of Graves’ disease. Dr Ulahannan added that it can also cause panic and nervousness. Her condition was not brought under control by appropriate medication until some time in 2019 and even now it is “badly stable” and she continues to suffer from significant hyperthyroidism.[190]
  1. [158]
    I consider that any depression suffered by Ms Behmen from early 2018 was caused by Graves’ disease. I accept that, if Ms Behmen has major depression, that was likely to have occurred regardless of the accident. The depression may have fed on her pre-existing perceptions of pain and anxiety, but it was not caused by the accident.
  1. [159]
    But even if she suffers anxiety or depression, they are eminently treatable. With appropriate medicine and psychiatric treatment, Dr Varghese said her apparent depression could reach stability and remission within three to six months. Also, both Dr Chau and Dr Varghese considered that her psychiatric or psychological condition (and probably – I interpolate – her perceived physical condition) and recovery are not assisted by the high levels of tender care she obtains from her family. If they stopped pandering to her so much, so that she had to do more, she is likely to find that she can do more. The more she does physically, the better her psychological situation will be and vice versa.
  1. [160]
    Even Dr Chau records that her psychological condition has improved now that her hyperthyroidism is under control. In her August 2019 report, she substantially reduced her assessment of a whole person impairment from 19% to 7%.
  1. [161]
    I do not accept Dr Chau’s assessment that throughout her life Ms Behmen will suffer from anxiety, let alone to such an extent that she will only ever be able to work 20 hours a week. If she were to have treatment, as recommended by Dr Varghese (psychiatry and medicine), or as recommended by Dr Chau (pain management, medicine and psychology), she should be able to study for, and then work full time in, the sort of career she wants – namely business administration. It is unlikely to involve heavy lifting and is likely to involve beneficial movement. As Ms White explained, moving around and changing position in an office job of the type Ms Behmen expressed the desire to do would assist in relieving any stress to her neck and back that holding the same position for long periods would cause.

Conclusions on Ms Behmen’s conditions

  1. [162]
    I find that Ms Behmen suffered an injury to her cervical spine that caused her a moderate degree of pain in her neck and right shoulder but, by October 2016, when she first saw Dr Pincus, she had substantially recovered and she has no permanent injury. I will, however, accept that it may have taken up to 18 months from the accident for her to have recovered fully. While she may have had some pain or stiffness from time to time since then, she has not satisfied me that it is substantial or debilitating, nor that any such pain is in fact as a result of the accident, regardless of whether she believes that it is. Even if some pain is a long term result of the accident, it is so minor as not to justify an increase in damages over a sum sufficient to compensate her for the 18 month period to which I have referred.
  1. [163]
    I find that the accident caused Ms Behmen to suffer anxiety over driving or being driven. That anxiety fed on itself to develop into a generalised anxiety disorder, but that disorder was itself overcome by no later than October 2018, by which time she was in the full throes of hyperthyroidism in any event, which was the cause of any depression she may have suffered around that time. Nevertheless, by that time she was able to operate normally, even though she may occasionally have felt that she was inhibited in her activities. Any vestiges of her generalised anxiety disorder that still remain today can be successfully treated with proper psychological or psychiatric treatment over a short period – say, one year – along with treatment for her depression (if she really suffers it).
  1. [164]
    I am not satisfied that the plaintiff suffered from major depression as a consequence of the accident. I am barely satisfied that she suffered from depression at all, due to her habit of exaggerating her symptoms of all her perceived disabilities. But any depression was caused by biological factors such as unrecognised postnatal depression and then Graves’ disease. While her anxiety and perceived physical disabilities may have been one of several “triggers” for her depression, they did not cause it, as depression would have eventuated in any event.

Damages

General damages

  1. [165]
    I have found that Ms Behmen suffered some injuries as a result of the collision. The defendants accept liability for the collision. Therefore Ms Behmen is entitled to damages calculated in accordance with ss61 and 62 of the Civil Liability Act 2003 (Qld) and Part 2 of the Civil Liability Regulation 2014 (Qld).
  1. [166]
    In determining general damages under the Act and Regulation, I respectfully adopt the approach described by McMeekin J, in dealing with a similar regulation, in the decision referred to by Mr Morton in his written submission.[191]
  1. [167]
    I have found that Ms Behmen suffered an injury to her cervical spine that caused her a moderate degree of pain in her neck and right shoulder for up to 1½ years, but she has recovered and has no permanent injury. On that basis, her injury is a minor cervical spine injury within item 89 of schedule 4 to the Regulation. The injury did not resolve within months after it was caused, but caused some ongoing pain for up to 18 months. I therefore consider that it has an injury scale value (ISV) at the top of the range for that item; that is, 4.
  1. [168]
    I have also found that the accident caused Ms Behmen to suffer anxiety for up to two years, possibly with some residual anxiety remaining that is eminently treatable.
  1. [169]
    Dr Chau, in her August 2019 report, assessed a PIRS rating of 7%. She considered that the accident caused 95% of that impairment. In her view there had been a substantial improvement in Ms Behmen’s condition since her initial report, in which she had assessed a PIRS rating of 19%. In contrast, in his October 2018 report, Dr Varghese assessed a PIRS rating of 22% based on her then reported functioning and his diagnosis of major depression. However, he noted that that was not an assessment of permanent impairment as her condition was eminently treatable to recovery within three to six months of commencing treatment. He also recorded, in a subsequent note,[192] that only 3% PIRS was directly related to the accident, with the remaining 19% related to postnatal depression and Graves’ disease. He also noted that Ms Behmen’s incapacity to work at the time was primarily related to the latter and not the accident.
  1. [170]
    Of course, I have found that Ms Behmen has not proved to my satisfaction that she in fact suffered from major depression at all, and any depression she did suffer was not caused by the accident.
  1. [171]
    In the light of my findings, I consider Dr Chau’s assessment to be too high, but nevertheless Ms Behmen’s anxiety has caused a moderate but temporary impairment, as described in item 12 of schedule 4. My assessment is that it is to the lower end of the range and merits an ISC of 4.
  1. [172]
    Therefore, neither injury is dominant. Both have an ISV of 4. This results in general damages of $5,760.[193]

Special damages

  1. [173]
    The Medicare refund claimed is $711.10. However, two items of $37.05 are not associated with the injury[194] and therefore the proper refund is $637.
  1. [174]
    Ms Behmen has not kept any receipts or other records of expenses, but Mr Wiltshire submitted that I should accept her oral evidence and estimate her expenses based on that evidence. However, her oral evidence was vague and entirely unsupported by contemporaneous (or any other) records. She claims:
  1. (a)
    18 massages over 4 years at an average of $50 each, totalling $920;
  1. (b)
    $320 for medicines (prescription and otherwise);
  1. (c)
    $380 for travel to medical appointments, physiotherapy, counselling, massages and to purchase medicines, based on $0.50 per kilometre.
  1. [175]
    I agree with the defendants’ submission that these estimates are not a sufficient basis to prove the extent of any such expenses. To award any sum based on this submission would be unsubstantiated guesswork. Ms Behmen sought legal advice about her claim in early 2016 and should have been aware of the need to keep proper records. In the absence of any records or at least clearer evidence, she has not satisfied her onus of proving the amounts claimed.
  1. [176]
    Therefore, I will allow $637 for special damages. As that is totally a Medicare refund, no interest is payable on that sum.

Past economic loss

  1. [177]
    Ms Behmen claims the following past losses, based upon an approximate net income of $500 per week:
  1. (a)
    $450 for 3½ days off work due to the accident;
  1. (b)
    $600 a week from the cessation of her contract to the date of trial (169 weeks) less 6 months for maternity leave, leaving 143 weeks to trial, totalling $85,800;
  1. (c)
    thus a total to trial of $86,250.
  1. [178]
    At the time of the accident, Ms Behmen was employed on a training contract that expired on 7 June 2016. Her pay history in her employment records[195] shows that her normal net pay was $962.80 a fortnight, or $481.40 a week. In the fortnights in which she took sick leave related to the accident, those records show that she took “personal leave,” for which she was paid her normal wages. However, in the fortnight ending 7 October she took 0.29 hours of unpaid leave to make up two days off work, for which she lost $2.80 in income. Otherwise, she did not suffer a loss of income due to the accident while she was in that employment.
  1. [179]
    The second part of Ms Behmen’s claim depends on whether she proved that, if it were not for the accident, she would have continued to have paid employment immediately after her contract expired, and she would have retained that employment at all times since, apart from a period of six months from about the time her daughter was born.
  1. [180]
    Ms Behmen pleaded in her amended statement of claim that, as a result of her injuries, she was not retained by Excel Recruitment at the end of her contract, as she otherwise would have been. However, it is clear that Excel would not have retained her in any event, as her employment file includes an email from Excel’s Human Resources Director that says, “At the conclusion of Edna’s contract, there was no option for ongoing employment with Excel Recruitment.”
  1. [181]
    Therefore, whether she would have obtained any further employment would depend on what steps she would have taken, absent the accident, to obtain alternative employment. It seems to me that she would not have taken any steps to seek another job before her contract expired, as she obviously hoped that she would be kept on, as pleaded in her statement of claim.
  1. [182]
    She was able to continue to work from the date of the accident until her contract expired even though, she says, she was unable to undertake all the necessary tasks. While she was employed, she was able to continue studying for at least some time, as she obtained a Certificate III in Business on 24 February 2016.[196] I do not see any reason why she could not, with that qualification, have sought alternative employment in her chosen field of some form of office job involving business administration. Such a position was unlikely to involve onerous physical activities.
  1. [183]
    However, she gave evidence that, after the contract expired, she wanted to study accounting and possibly do some work as well while studying. She had not looked into it yet, but she wanted to do a university or TAFE course in accounting, possibly while working in business administration. I accept that that was probably her intention at the time, but she has not since looked into her study options.
  1. [184]
    In fact, very shortly after she left Excel, she discovered that she was pregnant.[197] She gave evidence that she would have taken three to four months off work after the birth if she had been employed. In his submissions, Mr Wiltshire allowed for six months off. But it seems to me to be unlikely that, having discovered she was unexpectedly pregnant, she would have sought alternative employment pending the birth of her daughter, given the interruptions to any new employment that would have been caused by her pregnancy and the birth. Rather, at best she may have looked to pursue some studies pending the birth and to reassess her situation after the birth.
  1. [185]
    Her daughter was born on 24 February 2017. By the time she might otherwise have been ready to seek work, it would likely have been the second half of that year. In my view, she was not physically disabled from working, and certainly not from studying. While her anxiety at the time about driving, deriving from the accident, may have caused her some inconvenience in getting to classes, it would not have prevented her from studying mostly online and seeking her mother’s or her partner’s assistance, if necessary, to go to any necessary classes.
  1. [186]
    Dr Gan expressed the view, in his report of 1 March 2019, that, “In her current state, Ms Behmen is unlikely to ever obtain work. That is because of her psychological symptoms and also because of her cervical and thoracic spine symptoms as well.”[198]
  1. [187]
    Ms White opined, in her report, that, “Based on her current self-reported and demonstrated function during the assessment being a reliable representation of her current capacity, Ms Behmen is currently not able to engage in any employment due to her physical restrictions.”[199]
  1. [188]
    In his report of 23 August 2019, Mr Roehrs agreed with those statements by Dr Gan and Ms White.[200]
  1. [189]
    However, as Ms White expressly stated and Dr Gan and Mr Roehrs implied, their respective opinions were based on Ms Behmen’s reports and demonstrations on the days they saw her. I have concluded that Ms Behmen was not as disabled by her injuries as she represented and demonstrated to any of the practitioners who examined her. Certainly by the time of the first part of the surveillance video, in August 2018, her capabilities were far greater than she represented and demonstrated both before and after that day.
  1. [190]
    In the circumstances, I cannot accept those opinions as reflective of her true physical capacity at the relevant times or now.
  1. [191]
    As to her mental capacity to work, on the evidence of Dr Chau’s first report, her anxiety disorder in the second half of 2017 and into early 2018 may have prevented her working more than 10 hours a week in a low-stress job.[201] She made no effort to find such a job and so has not proved that no such position was available. From about March 2018, her psychiatric disabilities were caused by her Graves’ disease rather than her anxiety. I accept, though, that there may be vestiges of her anxiety remaining to be treated.
  1. [192]
    I therefore consider that, at most, Ms Behmen lost the opportunity to work full time (as opposed to for 10 hours a week) in a position paying a slightly higher wage than she had at Excel, from about 6 months after her daughter was born (that is early September 2017) until about March 2018, from which time any inability to work was caused by her Graves’ disease. On the basis of a normal 38 hour week (as she worked at Excel) she lost 28 hours a week over six months. I will allow for a net weekly full-time income of $500, resulting in a net loss of $368 a week for 26 weeks, a total of $9,578.92. Taking a broad brush view (as I must) as well as taking account of her lost income at Excel, I will round up her lost past income to $9,600.
  1. [193]
    As I have found that her anxiety was substantially overcome by October 2018, she has not suffered any loss of income thereafter. I consider that she is now capable of working in a full time position of the type she said should would like to have.
  1. [194]
    Interest on the past lost income should be calculated from September 2017 and in the manner proposed by Mr Wiltshire. Thus, to the end of October 2019 (the last complete month before judgment), I allow 37 months’ interest at half of 1.31%, which equals $5.24 per month, a total of $194.
  1. [195]
    Superannuation on the lost income, at 9.5%, totals $912, which I also allow.

Future loss of earning capacity

  1. [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.
  1. [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.
  1. [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 s55 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]
  1. [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]
  1. [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.
  1. [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.
  1. [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.
  1. [203]
    Therefore, I decline to award any damages for loss of future earning capacity.

Gratuitous services

  1. [204]
    Under s59 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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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]
  1. [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.
  1. [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 s59(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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [216]
    Therefore, I award Ms Behmen a total of $11,375 for past gratuitous services.
  1. [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

  1. [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.
  1. [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.
  1. [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.
  1. [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

  1. [222]
    Thus, I award Ms Behmen the following damages:
  1. (a)
    General damages$5,760
  1. (b)
    Special damages$637
  1. (c)
    Past economic loss$9,600
  1. (d)
    Interest on past economic loss$194
  1. (e)
    Past loss of superannuation$912
  1. (f)
    Gratuitous care$11,375
  1. (g)
    Future medical expenses$7,000

Total$35,478

  1. [223]
    I will enter judgment for that amount.
  1. [224]
    I will hear from the parties on costs.

Footnotes

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

[2] The defendant admits that Ms Behmen should be awarded damages, but contends that they should be limited to general damages of $4,320 and the Medicare refund. Ms Behmen claimstotal damages of $499,538.

[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.

[6] T1-10:26-29.

[7] T1-10:31-34.

[8] T1-11:4-13.

[9] T1-11:40-41.

[10] Exhibit 1.21.

[11] Exhibit 1.23:286-288.

[12] Exhibit 1.23:288.

[13] T1-14:6-31.

[14] Exhibit 1.23:289-290.

[15] T1-19:18-37.

[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.

[21] T1-26:20-22.

[22] T1-26:24-20.

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

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

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

[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.

[31] T1-20:16-22.

[32] T1-20:24-25.

[33] T1-19:16-29.

[34] T1-13:19-32.

[35] T1-27:3-5.

[36] T1-27:5-6.

[37] T1-27:10-21.

[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.

[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.

[49] T1-29:34-43.

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

[51] T1-31:13-40.

[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.

[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.

[56] Exhibit 1.22.

[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.

[62] Exhibit 1.20.

[63] Exhibit 1.3.

[64] Exhibit 1.11.

[65] Exhibit 1.4.

[66] Exhibit 1.12.

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

[68] Dr Chau’s report is exhibit 1.5.

[69] Exhibit 1.13.

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

[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.

[72] Exhibit 1.22:273.

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

[74] T3-57:1-43.

[75] Exhibit 1.6:53.

[76] Exhibit 1.19.

[77] Exhibit 1.20.

[78] Exhibit 1.17.

[79] Her report is exhibit 1.8.

[80] His report is exhibit 1.9.

[81] Her report is exhibit 1.18.

[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.

[83] T3-23:19-21.

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

[85] See [19] above.

[86] T1-20:41-43.

[87] T1-21:7-13.

[88] T1-21:15-35.

[89] T1-21:40-44.

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

[91] T1-22:1-6.

[92] T1-25:11-14.

[93] T1-22:9-10.

[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.

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

[103] T1-65:30-42.

[104] T1-31:18-19.

[105] T1-31:21-23.

[106] T1-31:25-31.

[107] T1-31:33-40.

[108] T1-90:45.

[109] T1-27:29-37.

[110] T2-68:28-34.

[111] T2-69.

[112] T2-70:17-36.

[113] T2-72:1-7.

[114] T2-71:14-45.

[115] T2-73:1-2.

[116] T2-73:12-15.

[117] T2-73:17-19.

[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).

[124] See [32] above. MrMorton 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].

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

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

[127] See [70] above.

[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.

[129] See [52] above.

[130] See [38] above.

[131] See [43] above. DrPincus described these conditions as “completely inconsistent and entirely different to those I observed in 2016” (exhibit 1.12:119) and later said there was no orthopaedic explanation for such deteriorations (exhibit 10 at [8]).

[132] Exhibit 1.8:64-66; [66] above.

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

[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.

[136] T1-49:1-2.

[137] T1-103:1.

[138] T1-105:1-7, 26-39.

[139] A non-steroidal anti-inflammatory.

[140] Used for the short term treatment of sleeping problems, i.e. insomnia.

[141] Used to treat chronic pain.

[142] Exhibit 1.23:307.

[143] Exhibit 1.22:209.

[144] Exhibit 1.22.

[145] Exhibit 1.22:232-233.

[146] Exhibit 1.22:234.

[147] T2-5:33-43.

[148] T3-9:39-41.

[149] T3-27:16-35.

[150] See [97] above.

[151] Exhibit 3. I substantially adopt, with changes derived from my own observations of the video, the description of that video that appears in exhibits 8, 10 and 11, which are diary notes of conferences with Dr Varghese, Dr Pincus and Ms White respectively, during which they were shown the video. The description of the video appears to have been drawn by the defendants’ solicitors and provided to the practitioners who wrote those reports. Each of them has adopted the description.

[152] T4-38:4-5.

[153] T1-101:12, 19.

[154] T1-105:1-7, 32-35.

[155] The file notes of their discussions (and a supplementary report by Dr Pincus), which they each signed and confirmed in their oral evidence, are respectively exhibits 8, 9, 10 and 11.

[156] T3-53:28-32.

[157] T3-55:14-32.

[158] T3-27:16-35.

[159] T2-31:3-6.

[160] T1-105:6-7, 34-35.

[161] See [93](i) above.

[162] See [97] above.

[163] In fact, the journey appears to have taken 10 to 15 minutes each way.

[164] Exhibit 1.23:287.

[165] Exhibit 1.5:26.

[166] Exhibit 1.11:110.

[167] Exhibit 1.9:88.

[168] Exhibit 1.13:126.

[169] Exhibit 1.14:139.

[170] Exhibit 1.8:65.

[171] Exhibit 1.3:7 under “Current Symptoms”.

[172] T1-56.

[173] Exhibit 1.23:286.The Plaintiff did mention headaches to a home doctor on 23 August 2016 (exhibit 1.28:402) and to Dr Ho on 31 August 2016 (exhibit 1.23:300), but the former does not seem to have any connection with the accident and the latter was in the context of an upper respiratory tract infection.

[174] As to which, see [52] above.

[175] Exhibit 1.21:189.

[176] Exhibit 1.23:286.

[177] Exhibit 1.3:8-9; Exhibit 1.4:18.

[178] Exhibit 1.9:94.

[179] Exhibit 10 at [10], confirmed at T3-13.

[180] Noted by her general practitioner, Dr Ho, on 16 January 2016: exhibit 1.23:291.

[181] The only prior mentions of any pain in her thoracic spine were to her general practitioners on 6 January 2016 (exhibit 1.23:290) and 21 March 2018 (exhibit 1.23:306) and to Ms White on 16 May 2018 (exhibit 1.18:161). She also reported pain there to Dr Pincus on 6 March 2019 (exhibit 1.12:117).

[182] I agree with Dr Chau and Dr Varghese that her family has been providing more assistance than she genuinely has needed and it would be in her interests for them to stop providing such high levels of care and assistance to her, to make her do more for herself.

[183] Exhibit 1.23:288.

[184] Exhibit 1.5:34, 15 May 2017.

[185] Exhibit 1.8:77-78, 20 August 2019.

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

[187] Exhibit 1.13:130, 132.

[188] See paragraph [65] above.

[189] T3-57:1-43.

[190] See [29] above.

[191] Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190 at [102].

[192] Exhibit 1.15.

[193] Civil Liability Act 2003 (Qld), s62; Civil Liability Regulation 2014 (Qld), sch 7, table 7, item 1.

[194] DrJayakody, 4.11.5 (exhibit 1.27:398); DrAndrews, 24.11.15 (exhibit 1.23:290).

[195] Exhibit 1.34:438-442.

[196] Exhibit 1.33.

[197] T1-28:24.

[198] Exhibit 1.4:20 at [47].

[199] Exhibit 1.18:167 at [41].

[200] Exhibit 1.10:105.

[201] Exhibit 1.5:35.

[202] Exhibit 1.8:83.

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

[204] Exhibit 1.5:34.

[205] T2-32:32-44.

[206] Exhibit 1.9:90.

[207] Exhibit 1.9:97.

[208] T2-71:20-33.

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

[210] Exhibit 1.18:171 at [66].

Close

Editorial Notes

  • Published Case Name:

    Edna Behmen v Andrew Raymond Fogg and Allianz Australia Insurance Ltd

  • Shortened Case Name:

    Behmen v Fogg

  • MNC:

    [2019] QDC 231

  • Court:

    QDC

  • Judge(s):

    Barlow DCJ

  • Date:

    21 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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