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

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.

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.

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Behmen v Fogg

Details

AGLC: Behmen v Fogg [2019] QDC 231
Case: [2019] QDC 231
Decision Date: 21 November 2019

CaseChat Overview and Summary

In the matter of Behmen v Fogg, the plaintiff, Behmen, sought compensation for injuries sustained in a motor vehicle accident caused by the defendant, Fogg. The nature of the dispute involved claims for both physical injuries and psychological harm. The matter was heard and determined by the Supreme Court of Victoria.

The court had to decide whether Behmen was entitled to damages for the gratuitous services provided by other household members who took over her duties due to her inability to contribute to household tasks. Additionally, the court needed to assess the validity of Behmen's claim for past and future medical expenses, despite the absence of specific records. The court also needed to determine the extent of Behmen's psychological injuries, considering the intervening diagnosis of Graves’ disease and its potential impact on any pre-existing psychiatric conditions.

The court found that Behmen was entitled to compensation for the gratuitous services rendered by other household members, both past and future, as she was no longer able to contribute to household duties. The court accepted Behmen's evidence regarding past medical expenses, despite the lack of specific records, based on her testimony and medical records. The court held that Behmen's psychiatric illness was not caused by the negligence but by the intervening illness, Graves’ disease, thus reducing the extent of the claim for psychiatric harm. The court ultimately awarded Behmen damages in the sum of $35,478, reflecting the assessed losses and injuries.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $35,478.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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