Supreme Court of the ACT|2009-10-12|Before: Miles CJ, Foster JJ, Refshauge J

Becker v Queensland Investment Corporation and Bovis Lend Lease Pty Ltd [2009] ACTSC 134 (12 October 2009)

CAROLYN DAPHNE BECKER v QUEENSLAND INVESTMENT CORPORATION AND BOVIS LEND LEASE PTY LTD

[2009] ACTSC 134 (12 October 2009)

Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 33

Court Procedures Rules 2006 (ACT), r 1616, Schedule 2

Australian Law Reform Commission, Community Law Reform for the Australian Capital Territory, Second Report: Loss of Consortium; Compensation for Loss of Capacity to do Housework (AGPS, 1986) ALRC, Report No 32

Luntz H, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, 2001)

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25

Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49

Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94

Young v Rothin [2009] ACTSC 71

MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657

GMH Ltd v Whetstone (1988) 50 SASR 199

Koeck v Persic (unreported, ACTSC, Miles CJ, Gallop and Foster JJ, 26 March 1996)

Todorovic & Anor v Waller [1981] HCA 72; (1981) 150 CLR 402

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

Brown v Willington [2001] ACTSC 100

Davis v Grgic [2006] ACTSC 14

Dennis v Australian Capital Territory [2005] ACTSC 118

Smith v Canberra Labor Club [2005] ACTSC 121

Grincelis v House [2000] HCA 42; (2000) 201 CLR 321

1. There be judgment for the plaintiff in the sum of $382,316.79

1. On 21 October 2002, the plaintiff, Mrs Carolyn Becker was injured when a partition alongside the corridor she was using to walk into the Canberra Centre collapsed injuring her. She sues for damages for those injuries. The defendant admitted liability for the damages and this is an assessment of them.

2. Mrs Becker was 56 when she was injured. She is a fairly slight woman of 5 feet 2 inches in height and 58 kilograms in weight. She was born in Queensland and still resides in Brisbane. She went to school until year 10 and then commenced work as a secretary for about three years.

3. After that she travelled for a time and subsequently held various jobs until she married in 1966. She has three children. All her children are now adults, but one son continues to live with her.

4. In October 1987 she returned to work as a shop assistant in the Myers Department Store (Myers) at the Carindale Centre in Brisbane. She remained there until June 2006 when she ceased work in circumstances to which I will later refer.

5. While with Myers, she worked in various departments. Her hours were from 28 to 32 hours up to a full-time workload each week.

6. In 1999 she had a problem with the joints in her thumbs for which she received some physiotherapy treatment.

7. In December 2001, while working in the children's department at Myers, she had an accident. She twisted her back while putting a box on a trolley. She described this as a stinging pain with no numbing into her legs. The stinging was evident in her right leg. She saw her general practitioner, Dr Tania Burgess, who referred her for physiotherapy treatment. She tended to attend around work hours, before work, after she went to work or in her lunch hour. She says she may have taken one day off work (though her physiotherapist recorded four days off work), but otherwise continued working. Mrs Becker remembered getting better quite quickly from this incident. The physiotherapist, however, reported that she attended for treatment from December 2001 to April 2002 though she then regained a full range of motion. At this time, she was working for four and a half days a week. She was not working at weekends.

8. The physiotherapy treatment relieved her symptoms. Although she cannot remember it, she now acknowledges that she had physiotherapy treatment until 24 April 2002.

9. She continued at her job and said before me that her back was fine until she injured it again on 21 October 2002.

10. In 2002 she was still working in the children's department. Her work involved work on the cash register but also some fairly heavy stock work. She had to get stock from the store's loading bay, unpack it and generally look after it.

11. In August 2002, her children gave her a gym membership, apparently for her birthday and she enrolled. Before she actually started, however, she travelled to Canberra where her daughter lived. Her daughter was pregnant with her second child and Mrs Becker was going to provide some child minding and other domestic assistance. She arrived the day after her daughter's second child was born. Her daughter remained in hospital for about five to seven days.

12. When her daughter was discharged from hospital, Mrs Becker continued to provide domestic assistance, including driving her daughter around and bathing the children. She had no difficulty in undertaking these tasks. She said her back was giving her no trouble.

13. On 21 October 2002, she was with her daughter and the two grandchildren in the Canberra Centre. They had been to the baby clinic where the new-born child had been weighed. Part of the building was being refurbished. Mrs Becker and the others were walking down a corridor in the Centre. The refurbishment was screened off from the corridor by means of a long series of partitions that were fixed to one another.

14. Mrs Becker's daughter was pushing the pram with the baby in it and the other child had hopped onto the back of the pram. They were going to Target for some more shopping.

15. As they were walking along, Mrs Becker heard a crack and looked up to see the partition starting to fall down on them. Mrs Becker put her hands up to try and hold the partition that was falling on them while Mrs Becker's daughter pushed the pram out of the way. She described that "it just knocked me flat down onto like a crouching position on the floor". Her daughter and the grandchildren managed to get out of the way unhurt, though the elder one was screaming.

16. Mrs Becker said that the partition hit her on the head and shoulders and "went down - sort of down on my hip" on the left side.

17. Some workmen came over from where they were working on the other side of the partitions and helped her and another person who had been knocked over by the falling partitions as well.

18. Some immediate assistance was provided and Mrs Becker was advised to see a doctor. Her son-in-law, having been phoned by her daughter, arrived and they took her to see Dr Mitar Milosevic. Dr Milosevic arranged for her to be x-rayed and that took most of the afternoon. The x-rays showed that she had suffered no fractures.

19. Later in the afternoon, while waiting for the x-rays, Mrs Becker started to feel pain. She experienced "the shakes" and her head was aching, her lower back was aching and her left shoulder was sore. She took some Panadeine Forte which Dr Milosevic had prescribed. She found herself to be quite teary also.

20. A couple of days later, she returned to Queensland. When she left the plane, she found she could not carry her suitcase and burst out crying when she saw her husband. She went straight home to bed.

21. Soon after returning home, she went to see her general practitioner, Dr Victoria Featherstone, because of continuing and worsening pain. She also found that she could not stop crying. She found she did not want to get out of bed and every time someone spoke to her she would burst into tears.

22. Dr Featherstone found on examination that she had a limited straight leg raise on her left side and continuing back pain. Mrs Becker said she did not think she could return to work. Dr Featherstone prescribed the analgesic Voltaren and referred her to John Perrier and Associates for physiotherapy. This was the same physiotherapist she had been seeing in late 2001 and early 2002.

23. Her first physiotherapy consultation was on 28 October 2002. She continued with physiotherapy treatment for some time attending about four or five times a month, though initially at nearly twice that frequency.

24. Mrs Becker did return to work but found she could not carry out her normal duties. She could not fit shoes or do any lifting. She could not climb a ladder to get stock or hang merchandise. Anything involving lifting or bending was painful. She moved to cash register only work in the intimate apparel department. This involved her serving customers, answering the phone, tallying the tills and similar. There was no lifting or bending required.

25. She continued to see Dr Featherstone who also referred her to a clinical psychologist, Mrs Tracey Howard, because of Mrs Becker's continued lachrymosity and depression. She also commenced her on a course of Aropax which appeared to help after some little time. She continues to take that medicine, as she told me that when she tried to stop taking it, she became quite anxious and felt she could not leave the house.

26. She felt, too, that she had lost her self-confidence. She said in evidence that she had not felt like this before. She said she used to be a strong person and able to cope with most things. Indeed, she would help others cope but now she finds it difficult to cope herself.

27. She saw Ms Howard on five occasions. The treatment consisted of cognitive behaviour therapy, incorporating supportive counselling and anxiety and depression management techniques. She was recommended to have further treatment but did not do so because of the expense. She said she would have further treatment if she could afford it.

28. Mrs Becker also said that Dr Featherstone had prescribed an anti-inflammatory drug, though Dr Featherstone in her report does not mention this specifically. Mrs Becker said she came out in a skin rash as a result of the prescribed medicine. Dr David Champion, consultant physician, to whom Mrs Becker was referred for a medico-legal opinion, thought this may have been a reaction to the Voltaren. In any event, the rash was itchy and appeared as bruise-like on parts of her body. Dr Featherstone referred her to a hospital where she was admitted overnight. She stopped taking the medicine as a result, but the pain returned. The bruising went away.

29. Mrs Becker also experienced interrupted sleep. She said she would lie awake at night and, if she did fall asleep, would experience "flashbacks" of the incident and wake, often shouting, thus disturbing her husband's sleep as well. Although it seems to have improved, she said her sleep remains erratic. She has been prescribed an additional anti-depressant medication with sedating properties, Endep, which she takes every night.

30. She continues to take Panadeine Forte on a regular basis, probably, she said, about two or three times a week. She also takes Panadol, up to six tablets a day when she does not take Panadeine Forte.

31. Her work seemed to exacerbate her pain. The continual standing in virtually the one position stressed her and worsened the lower back pain. After work, she tended to go straight home and then to bed for two or three hours after taking some pain medication.

32. Although Mrs Becker was a licensed driver, she has generally ceased this activity, she told a number of doctors. She had two minor motor vehicle accidents which she attributed to the restriction on her neck rotation. No-one was injured in either accident.

33. In June 2006, she resigned from work. She said she wished to work until she was 65 as she and her husband were planning to build a new house and she wanted to earn money to pay for furnishings for it and to save money for travelling in retirement. She said that the pain was so bad that she had to retire as she could not stand it any longer.

34. Her husband had retired a few months earlier because of severe arthritis after an extended period of sick leave, during which he had hoped to be able to return to work. She said to me in evidence that her husband's retirement was not a factor in her decision to retire. A number of the medical reports tendered by the defendant refer to Mrs Becker saying that she had retired because of her husband's illness, or was influenced by it in making the decision. She denied in evidence that this was a factor in her decision to retire. It was put to her in cross-examination that she wanted to do so and desired it. She rejected those suggestions.

35. She said in evidence that her husband had been home on sick leave for more than a year before she retired and had needed little by way of particular help. She said that she must have been misunderstood.

36. Her husband and son have been doing most of the domestic chores since the 2002 incident. They have been doing the cooking and her son particularly does the heavier domestic work. She tried vacuuming but was unable to do it because of pain. She does the washing but her husband and son had to hang it out; if they were not able to do so, she used the dryer for the first twelve months or so, though she became able to hang the washing out after that. They have also been doing the shopping and much of the cleaning, such as mopping. She estimated that they would spend about four hours a day on domestic work initially, but more recently, after about twelve months, it had reduced to about two to three hours a day. It was slightly decreasing. She said she was able to undertake more tasks as time progressed, though mentally she found it difficult to do some of the things around the house. She and her daughter, who has now returned to Brisbane, go shopping together.

37. She also experiences reduced concentration. Her memory seems also to have been affected. She is prone to irritability and impatience as well as depression. These are attitudes that she did not exhibit immediately prior to the accident, though she was depressed following the death of some friends and family members some years before the 2002 incident.

38. She expressed to me also her concern at her inability to be a good homemaker for her husband and at her loss of confidence, lack of energy and of motivation. She has also experienced a loss of libido since the accident. She experiences anxiety when near building sites and similar sites to that where the accident happened and can no longer interact with her grandchildren in the same way that she used to do.

39. The notes from her physiotherapist were put in evidence and used in cross-examination of Mrs Becker. She accepted that they recorded accurately what she had told the physiotherapist for the most part, though there were at least two references which she found quite unlikely. She had, however, no present recollection of any conversations with the physiotherapist.

40. The notes disclose reports of continuing improvement in the pain reported by Mrs Becker, though there are a number of lapses where either the leg or back pain is reported as worse. In one case, on 25 March 2003, she reports that her back was very sore "because carrying grandchild a lot" and on 2 April 2003 "continued aggravating after carrying baby". Mrs Becker was initially confused about these references and said that she could not recall picking up her grandchild; she suggested she generally just sat and nursed the younger one and did not pick up nor carry the older one.

41. The notes recorded that on 26 November 2003, she had dropped a box on her left foot which led to her taking some time off work and caused her to feel shooting pain under the top of her foot. She did not herself recall an incident with a box and suggested that she had only slipped over on her foot. She returned to work two days later. No reference appears in the notes about back or leg pain.

42. The treatment by the physiotherapist continued fairly regularly until October 2003, about twelve months. The entry, on 3 September, records "much better since last Rx - is also walking 4 x week with good effect". The entry on 17 September records "still going [sic] bit better" and on 1 October the last entry records "as good as she has been". Her subsequent treatment in 2003 referred to the foot injury.

43. In 2007, she returned to the physiotherapist where she complained of arm pain.

44. Mrs Becker said that she ceased physiotherapy treatment because of the cost.

45. I had in evidence a number of medico-legal reports. Mrs Becker tendered a number of reports from Dr David Champion, consultant physician in rheumatology, musculoskeletal and pain medicine. The defendant tendered reports from Dr Ian Dickinson, orthopaedic surgeon, Dr Neil McGill, rheumatologist and Dr Robert Lewin, consultant psychiatrist.

46. When seeing these medical practitioners, she was clearly asked about her prior medical history. Regrettably, she did not report to them the existence or extent of her prior history. Dr Champion did not know of the prior back injury at all, until he read Dr McGill's report. Dr Dickinson, reports merely that:

She had had back pain early in the year prior to the accident when she twisted her back carrying a box. She had no treatment and the pain settled after a few days.

47. Mrs Becker acknowledged that, as a description of the 2001 incident and treatment, this description was wrong. Dr McGill reported a similar account by her and, again, Mrs Becker accepted that it was wrong.

48. Mrs Becker gave evidence that she had forgotten about the treatment she had received from the physiotherapist. Dr McGill, in his report, referred to clinical notes from her physiotherapist. This caused her to make inquiry. She said in evidence to me:

And do you recall seeing or having physiotherapy treatment to your back in the following year? That is January, February and March of 2002? - I don't - I don't recall it, but after seeing the physiotherapist's report, I now know that I did.

When did you first realise that you did go during those months? - Only after I got a letter from my solicitor with a letter - a report from the doctor saying that I had treatment up until, I think it was April.

Yes, I think - was that a report of Dr McGill's? - Yes, it was.

And when you read that report, how did you feel? - I was devastated. I just did not remember having that and so I immediately phoned the physiotherapist and she told me that that was so and so I asked her if I could come down and look at the records because I didn't believe that I had had that treatment.

And did you do that? - I did, yes.

And you looked over the records? - I did.

And - ? - I asked her to go through them with me to make sure they were mine and not somebody else's.

And you were satisfied they were yours? - Yes.

49. Mrs Becker was also challenged on what she had told the psychologist, Ms Tracey Howard, about her physical symptoms. She said, however, that she did not generally discuss her physical problems with Ms Howard. I accept that her consultations with Ms Howard focussed on her depression, anxiety and post-traumatic stress disorder.

50. While it may have been desirable for her to have let Ms Howard know about the improvement in her physical symptoms, that does not seem to be the focus of her reason for seeking treatment from Ms Howard. I do not think this adversely affects her credibility.

51. Two of the three medical practitioners, whose reports were tendered by the defendant, record, in different ways, a suggestion that Mrs Becker retired from work in order to assist her husband. Dr Dickinson wrote "[s]he gave up working for Coles Myer in June 2006, mainly to care for her husband". Dr Lewin wrote:

Mrs Becker reported that her husband retired about three years ago, after developing arthritis. He had been employed by a hire company as a repair man. He has continued to suffer from arthritis in the hands, knees and feet. Mrs Becker was initially quite worried about his condition. The need to care for her husband was one of the reasons she decided to stop working. She said that his treatment has included the use of anti-inflammatory medication and that he is under the care of a rheumatologist. Mr Becker's arthritis has improved in response to treatment.

52. As I have noted earlier (at [34]), Mrs Becker denied that she had retired because of her husband's illness or that she had told either of these doctors that. Dr Dickinson but not Dr Lewin was called to give evidence and Dr Dickinson was cross-examined on this issue and referred to his contemporaneous note of Mrs Becker saying her retirement was "mainly due to her husband being sick". I find it difficult to assess whether there was a miscommunication or whether Mrs Becker had erroneously said this to those doctors.

53. I accept that Mrs Becker has a poor memory. I did not form the impression that she was lying to me when she denied saying such things to those doctors.

54. Mrs Becker was cross-examined at some length about the domestic chores. She said that mentally she could not do many of them, though it was possible that she could have actually physically accomplished them. In this category was cooking, dusting, light cleaning, washing, some weeding and pruning. She clearly stated she could not hang out the washing initially, though this changed over time, nor the vacuuming nor the heavier work in the house or garden.

55. One of Mrs Becker's work colleagues also gave evidence. She had worked with her from 1998 to early 2003 in the children's department. She described the work Mrs Becker did:

I know exactly what [Mrs Becker] used to do, fit shoes for one, which is quite testing at times. It involves getting down on your knees to feel for room in children's shoes for growth and what have you, getting up ladders in - in the shoe reserve - reserve to get down boxes, bringing out stock from the dock, unpacking stock, moving heavy shelving, moving racks, re-merchandising, serving behind the counter.

... if something new arrives we're asked to feature it at the front and that involves moving clothes around, and at times it can be quite heavy because we go up to 16-year-old boys and their - their clothes are almost the - the size of men's clothing, so - yes.

56. She described Mrs Becker as a "hard worker, a good team member and always very hands-on". She was unaware of any physical problems prior to the incident, the subject of these proceedings.

57. She also noted that after the incident she was much restricted; she could not fit shoes because she could not get onto her knees and she was unable to climb ladders.

58. She remembered the problem that Mrs Becker had earlier had with her hand and that in about December 1999, she was not to climb ladders. She did not recall the 2001 incident or any consequences of it. She did confirm that after the incident in 2002, her duties changed and she was transferred out of the department.

59. Mr Becker also gave evidence. He was aware of the 2001 incident and of treatment for it. He suggested, however, that there was little change in her work as a result. He said:

Well, the best I can recall, life went on as usual. It was a busy time of the year for her and she just carried about [sic] her job and my job was pretty - I was on call 7 days a week, 24 hours a day, and that was a busy time for me and I'd always come home at night, meals were already done, washing was done, meals prepared and I was aware that she was having physio.

60. After the 2002 incident, however, he noticed a marked change. When she arrived home from Canberra she was very upset and could not lift her suitcase because of pain. She continued to be emotionally affected so that when he mentioned the incident she would weep, though she would have good days and bad days. She was, he said, also definitely not as active as before and has not returned to that pre-incident active life. He described her activity as:

Before she went to Canberra, when she went to Canberra she took an interest in all her gardening, sewing, had a good social life but when she came back she sort of withdrew into a shell, for a better word I can think of, and she still used to get a bit teary from time to time and - during that time.

...

I'd usually come home around about 5 o'clock, 6 o'clock and sometimes she'd come home about the same time as me and when she did come home she'd go straight to bed because she was just worn out, exhausted, complaining mainly about the pain and she just had to relax.

61. He repeated that she complained of pain in her back and that this lasted for years. He also said that when her job changed at Myers, she found it easier to cope, but still suffered. He added:

She'd come home still exhausted and suffering from the pain, but I think she could cope with the job easier during the day.

62. He recounted discussions he and Mrs Becker had had about retirement. She, he said, had planned to work until she was 65. This would, he said, provide funds to help pay for the new house they were planning to build and to furnish it.

63. He also said that her retirement in June 2006 was caused by her continuing pain. He recounted her saying "I'm just not putting up with this any longer" and, as he said, "that was the end of the story". He said also that the suggestion that she should retire to look after him "never entered into the conversation at all". His evidence continued:

Do you need any looking after? ... Occasionally when I get a bad attack Carol's got to help me with putting on socks and maybe doing my nails. I need a close shave and when I have a bad attack on my hands she might give me a close shave, but apart from that I can cope quite well by myself.

64. As to the assistance with domestic chores, his evidence was that he and his son took over a number of them. He said:

We had to get stuck down and help each other and mainly, like as I said before, making the beds and I had to turn the mattresses. Carol would come along and just tidy up some of the finishing touches. Taking out the washing with heavy loads. My son did the vacuuming and I'd assist with preparing the meals and cooking the meals.

65. He estimated that he would do about two to three hours every day and their son would do an hour a day or perhaps more on weekends.

66. Mr Becker said that after Mrs Becker retired, she was able to do a little more, some washing in particular.

67. He also noted that Mrs Becker had lost confidence in driving and would now only drive short distances. He also recounted an incident where she had had a serious anxiety attack in a building where renovations were being undertaken.

68. He stated that Mrs Becker had talked in her sleep, sometimes crying and saying things like "I'll save you" or "I'll look after...". He denied any similar kind of anxiety prior to the 2002 incident.

69. In cross-examination, Mr Becker did confirm that Mrs Becker received physiotherapy treatment for the 2001 incident and that it had improved her symptoms. He also confirmed that the physiotherapy treatment after the 2002 incident did help her pain.

70. Mr Becker emphatically denied that Mrs Becker retired because she wanted to do so.

71. Mrs Becker's daughter also gave evidence. She confirmed the events of the actual incident. She also confirmed Mrs Becker's fitness prior to the incident. She stated that in late 2001, Mrs Becker had visited her and was in good physical shape and able to take on active involvement with her granddaughter.

72. She reported that Mrs Becker kept a tidy house and was an active person. She noticed a considerable change when she returned to live in Brisbane in 2003. The house was messy, though not dirty and she provided some assistance, helping to make the beds, hang out the washing and mop and sweep the floor. She confirmed that her brother does the vacuuming, cleaning the windows and other heavy chores. She said that her mother could shop but needed a break when doing so.

73. She also noticed that her mother's ability to retain information was quite small and that her memory was poor. She noticed, too, that she had been quite teary since the incident, unlike her self beforehand.

74. Mrs Becker's daughter was not asked any questions about Mrs Becker picking up or walking with her children, Mrs Becker's grandchildren.

75. Reports were tendered by both parties. Mrs Becker tendered:

(1) a report of Ms Tracey Howard, clinical psychologist of Psychology Consultants;

(2) a report of Dr Victoria Featherstone, general practitioner;

(3) a report of Dr Noela Whitby, general practitioner;

(4) a report of Sharon Hennessy, physiotherapist of Physio Works, John Perrier and Associates; and

(5) a detailed report and three additional reports or letters of Dr David Champion, consultant physician in rheumatology, musculoskeletal and pain medicine.

76. None of the authors of these reports were called to give evidence or were cross-examined.

(1) a report of Dr Ian Dickinson, orthopaedic surgeon;

(2) a report of Dr Neil McGill, consultant rheumatologist; and

(3) a report of Dr Robert Lewin, consultant psychiatrist in adult general and forensic psychiatry.

78. Drs Dickinson and McGill were called to give oral evidence and were cross-examined.

79. Mrs Becker adopted and relied on Dr Lewin's report.

80. Neither party tendered any report from or notes of Dr Milosevic.

81. It is helpful to set out what were the contested issues in this matter. Liability was not in dispute, and that the falling of the partition on Mrs Becker caused her injury was not contested. It was also not in contest that Mrs Becker suffered ongoing pain in her back which was to some extent debilitating.

82. The defendants' position was that Mrs Becker had degenerative spinal problems which were the cause of her ongoing pain. The injuries from the incident would have caused an aggravation of this condition or an injury which would have settled down within no more than three months it was said. Thus, her ongoing disabilities were caused by the degenerative changes in her spine and not the accident. Accordingly, the defendants submitted, her retirement, if not to look after her husband, was not caused by the incident. Her economic loss, therefore, was minimal. In addition, her claim for domestic assistance was challenged on the basis that it was provided either in response to her degenerative spinal condition-caused impairments or as part of a family interaction and not through need.

83. Mr S E Torrington, who appeared for the defendants, did not submit that Mrs Becker had deliberately misled the doctors who examined her on behalf of his clients, nor that she set out to deceive the court or indeed anyone. The fact was, however, that the histories given were wrong.

85. Ms Howard is the clinical psychologist to whom Mrs Becker was referred by Dr Featherstone. She saw her three times in 2002 and twice in 2003. She was given a history of the incident and of Mrs Becker's personal history which was consistent with the evidence given before me.

86. Ms Howard reported that Mrs Becker continued to experience intrusive thoughts about the incident, a situation that both Mrs Becker and her husband said in evidence continued to the time of the hearing. She also described other symptoms such as anxious avoidance of the scene of the incident and of anxiety generally. She also described symptoms of depression, including frequent tearfulness, diminished concentration, poor memory, and other similar feelings.

87. Ms Howard diagnosed a post-traumatic stress disorder (PTSD) and a major depressive disorder secondary to the PTSD. She noted that the symptoms persisted over a long period. She considered that these symptoms caused functional impairment and were caused by the incident.

88. She noted that the pain persisted and interfered with domestic chores and her sexual relationship with her husband as well as her work.

89. Ms Howard would not provide a prognosis. She had provided cognitive-behaviour therapy, incorporating supportive counselling and anxiety and depression management techniques. She reported that there had been improvement with a good initial response but that she remained with functional impairment.

90. Some issue was made by Mr Torrington of Ms Howard's description of "debilitating symptomatology" in the context of physiotherapy notes which disclosed, apparently at about the same time, improvement in her levels of pain. When the whole paragraph is read, however, it seems clear to me that this refers to the psychological symptoms and not the physical ones. The paragraph reads:

Although she has shown some improvement, Mrs Becker continues to experience debilitating symptomatology. On the basis of my sessions with Mrs Becker it is my opinion that she would likely benefit from ongoing professional psychological input to address her trauma and depressive symptoms. I consider treatment to be paramount to Mrs Becker's recovery from this traumatic incident and the ongoing psychological disturbance, which would seem to have its basis in the traumatic event. My view is that treatment would likely include cognitive-behavioural and interpersonal therapy.

91. Dr Featherstone is the general practitioner whom Mrs Becker consulted when she returned to Brisbane. She noted that Mrs Becker had "reported lower back pain since the incident and poor sleep". She had limited straight leg raise on the left side and was tender over the L5 S1 region of her lower back. She prescribed physiotherapy and Voltaren.

92. She saw her on 1 November 2002 (though typed 2003) when Mrs Becker reported back pain with prolonged standing and pain lying in bed and rolling over. She was a little better a few weeks later, though the rash referred to above (at [28]) had arisen. She also recommended she see a psychologist. On the next visit, after she had seen the psychologist, she was feeling better and there was further improvement a week later.

93. She last saw her on 11 April 2003 when Mrs Becker was still not sleeping well and had no libido.

My feeling is that this lady did suffer a reasonably serious soft tissue injury to her L shoulder and lower back as a result of the incident in Canberra. In the process of recovering from these injuries she developed a more serious complaint of anxiety that has continued through to now. She did have a pre-existing history of depressive illness, but had never experienced anxiety to this extent in the past.

I think her physical recovery is now static, in that her pain in [sic] now not as severe as it was in her lower back, but it has not gone away completely and I am not able to say if it will.

Her anxiety is reasonably well controlled with medication. It has been complicated to some extent by this rash that developed late last year and was presumably not related to the injury in Canberra. However she was certainly experiencing significant anxiety prior to the onset of the rash, and continues to have problems now despite clearance of the rash.

Mrs Beckers [sic] capacity for work has been complicated by her pre existing problems with her hands. This has been one of the factors that has made it necessary for her to change departments at work. However her back discomfort as a result of the injury has also made a contribution. She has needed time off work also during the time of the rash during its initial diagnosis and treatment. I do not have a record in my notes of any time taken off work specifically for this injury/complaint.

95. Dr Whitby is a general practitioner who has recently seen Mrs Becker. She reported that she continued to suffer neck and lower back pain, often severe enough to require Panadeine Forte and disrupted sleep. She continued to feel depressed, lacking in confidence and needing antidepressants.

96. Ms Hennessy appears to be a physiotherapist with John Perrier and Associates. She noted that Mrs Becker attended in December 2001 until April 2002 for treatment of a lumbar spine injury at work but that she regained full range of motion and planned commencement of a regular fitness program.

97. As to the 2002 incident, Ms Hennessy reported that subjectively Mrs Becker showed pain in her lower back radiating into the posterior left leg. Objectively she showed a 1/6 of normal reduction in her lumbar spine flexion. Hip flexion was reduced to 120 degrees on the left, but normal on the right. On palpation, she was tender and stiff to palpation on L5 S1. Her left sacroiliac joint was tender and surrounded by muscle spasm. This led Ms Hennessy to suggest bruising with likely lower lumbar disc and ligament strain.

98. The pain was shown consistently in physiotherapy sessions and Ms Hennessy detected no abnormal pain behaviours.

99. Ms Hennessy noted similar pain difficulties as had been reported to Dr Featherstone. She suggested that she would always suffer low back pain following repetitive lifting and during physical activity such as vacuuming or mopping and may require physiotherapy intervention when the condition flares up.

100. The notes of physiotherapy treatment were also tendered. These showed periods of physiotherapy treatment between 3 December 1999 to 24 January 2001 (for her thumb), 13 December 2001 to 24 April 2002 (for the 2001 incident), 28 October 2002 to 1 October 2003 (for the 2002 incident), 26 November 2003 to 28 November 2003 (for the work incident concerning her foot) and 4 April 2007 to 16 April 2007 (when carrying a suitcase caused further pain).

101. It is not necessary to analyse these notes in any detail. Mr Torrington referred to a number of them in cross-examination and assured me that these were all that he considered relevant.

(1) Mrs Becker consulted the physiotherapist on 13 December 2001 with lower back and right hip pain after lifting at work.

(2) She had six further consultations over the next eight days, with variable pain levels, and saw the physiotherapist up to 2 January 2002 when she was noted to be continuing to improve and managing a full day at work but a little sore.

(3) Mrs Becker continued to see the physiotherapist during March 2002, where she made complaints of right leg hip pain getting worse with real restrictions (7 March), moderate improvement with no leg pain (9 March), improvement (14 March), continued improvement (19 March), pain persisting (21 March) and "good" except when rolling in bed (28 March).

(4) She also saw the physiotherapist in April 2002 when she complained of sharp pain in her right thigh and pins and needles in her lateral three toes (4 April) and later reported feeling very much better, having taken two days off work and tried heat and stretching (12 April); she was recommended strengthening exercises.

(5) She saw the physiotherapist finally, in this period, on 24 April 2002 when she was very much better, she had done two days of heavy working which did not increase her pain, and was discharged from physiotherapy to cope with HEP and self-massage.

(6) Mrs Becker returned to the physiotherapist on 28 October 2002, after the 2002 incident and saw her on 1, 5, 8, 12, 17, 20 and 26 November and 2, 10, 17 and 30 December 2002 and the treatment was really helping.

(7) On 31 January 2003, the physiotherapist recorded that Mrs Becker stated that she was overall improving well.

(8) On 10 February 2003, the physiotherapist recorded that Mrs Becker stated that she was steadily improving recently and on 18 February 2003, the leg pain was much better but the back pain remained and on 22 February 2003, the back pain was showing slow improvement.

(9) On 19 March 2003, the physiotherapist recorded that Mrs Becker told her that her back was a little sore that day and a week later on 25 March 2003 that the leg pain was "really good" but the back was quite sore "probably because of carrying grandchild a lot".

(10) On 2 April 2003, the physiotherapist recorded that Mrs Becker had said that there was "continued aggravating" after carrying the baby.

(11) Mrs Becker was still seeing the physiotherapist in May and on 26 May 2003 told her that she was better overall but that pain returned with activity of any sort.

(12) Mrs Becker was still having treatment in June but the physiotherapist recorded that she told her on 23 June 2003 that her back was "good" but her right leg was numb and ached at night or after work.

(13) On 9 July 2003, the physiotherapist recorded that Mrs Becker told her on 9 July that she was improving, on 11 August 2003 that her back had "seized up" and her right leg was numb and on 18 August 2003 that she was a bit better but her left side was "catching this?"

(14) On 25 August 2003, the physiotherapist recorded that Mrs Becker told her that her back was "fairly good" as long as she did not sit for too long.

(15) On 3 September 2003, the physiotherapist recorded that Mrs Becker told her that she was much better and was walking four times a week to good effect. In evidence, Mrs Becker also said that she was doing exercises the physiotherapist had prescribed and that they were helping.

(16) On 17 September 2003, the physiotherapist recorded that Mrs Becker had said she was "still going bit [sic] better" and on 1 October 2003 she was "as good as she has been".

(17) She consulted the physiotherapist on 26 November 2003 about an incident at work where it is recorded she dropped a box on her foot. There was no reference to back pain on that occasion and no reference to back pain in the next attendance recorded on 28 November 2003.

103. These notes show, and this was accepted by Mrs Becker, improvement in the level of pain although she had no independent recall at all of whether they would have been accurate. That, of course, does not mean that the pain had disappeared or that she had resolved all the pain issues, only that it was better and that she had improved. There is, however, no doubt that this record shows improvement, though there had been a relatively extended period of back and leg pain.

104. This does not seem inconsistent with the physiotherapist's report and, in particular, the prognosis of ongoing problems which led to restrictions. The notes are also not inconsistent with the report that Mrs Becker had achieved a good result from treatment for the 2001 incident.

105. Dr Champion was asked to examine Mrs Becker by her solicitors to provide a medico-legal report. In her consultation with her, she did not refer initially to the 2001 incident nor to the physiotherapy treatment for it, though she later mentioned the incident but suggested it was "brief" and with no "leg radiation". This created a problem for me in the way I could take his report into account. It is clearly desirable, as Dr Champion himself noted, for lawyers in personal injury damage cases to review the pre-accident general practitioner records and make them available on a medico-legal consultation. It would be good practice for them to be obtained and submitted to any medico-legal expert.

106. He had copies of the reports of Dr Featherstone, Ms Tracey Howard and Ms Sharon Hennessy.

107. Dr Champion had the x-rays and noted the degenerative changes in her spine. He noted that these showed that her spinal changes were asymptomatic before the accident or only mildly symptomatic for several years. It is not clear whether these were the radiographs arranged by Dr Milosevic or those of 2004 and 2007 to which Dr McGill referred. It is likely that they were one or both of the latter since those ordered by Dr Milosevic did not appear to include the spine. He noted, too, the post- traumatic stress disorder and that there was "wide acceptance" that it "augments the pain experience". He provided a number of useful articles from serious academic publications in support of this proposition.

108. He conducted a detailed examination, which was impressive, and considered that spinal surgery may be required in the future. His view, apparently unchanged when the facts of the 2001 incident and subsequent treatment were disclosed, had been that Mrs Becker would never be "a serious candidate for return to work", as he maintained his view that she continued to suffer pain and disability.

109. Dr Champion opined that Mrs Becker "presented in a genuine and honest manner without exaggerated or inappropriate responses."

110. Subsequently, Dr Champion became aware of the 2001 incident and provided a revised report (his third report).

111. Dr Champion expressed the view in his third report, after becoming aware of the earlier injury, that the incident in 2001 had made a significant contribution to her "post subject accident disorder, pain and disability" and that the "predisposing back disorder should account for some 30-50%" of it; he suggested 40%. He did note that the matter left some questions about Mrs Becker's credibility.

112. He commented on Dr Dickinson's report (see [119] to [130]) and felt it recorded a superficial examination and that he "sincerely" believed the history and examination reported in it to be "deficient". He questioned the lack of explanation that Dr Dickinson had for suggesting that the symptoms could not be related to the 2002 incident and his lack of evidence for finding "abnormal illness behaviour".

113. He also commented on Dr McGill's Report (see [131] to [140]), and felt that his examination was not complete, in that he had only tested the modality of light touch for "responses to cutaneous sensory testing" and that he did not consider the post-traumatic stress disorder, a view that Dr McGill ultimately accepted.

114. Mr Torrington, in making his submissions, suggested that Dr Champion, especially in his third report, showed a "flavour of a treater come qualifier dealing ... with the other medical opinion".

115. In the absence of cross-examination, I am not disposed to discount Dr Champion's opinion for this reason.

116. Mr Torrington further submitted that Dr Champion did not take into account the fact that Mrs Becker improved after treatment. In a sense that could be said of Dr Dickinson, too. He does not mention improvement in relation to her back. He does mention it in relation to her shoulder and neck, but these are separate sites from her lumbar spine. Indeed, he clearly accepts that she has significant symptoms of pain from her lower back but attributes this now entirely to the degenerative changes. He discloses no reliance on any improvement in coming to his conclusion.

117. Dr McGill, on the other hand, does note that treatment has led to improvement. Unlike Dr Dickinson, he notes with apparent acceptance that Mrs Becker still has aching at the back of her neck, a problem that was not apparently linked by him to the degenerative spinal changes of the lumbar region. As to the improvement through treatment, I found it curious that Dr McGill noted Mrs Becker's self-report of improvement in five months. This is consistent with the reports in the physiotherapy notes where by March 2003 the improvement had already stabilised. This strongly suggests that, even on his thesis, Dr McGill's suggestion of a three month period of the effect of the 2002 incident is arbitrary and not based on the actual clinical situation.

118. Further, Dr McGill does not refer to the improvement in her condition as relevant in his summary and did not suggest how, if at all, it influenced his opinion. Indeed he accepted that Mrs Becker is significantly impaired in the tasks she can do and his prognosis was for "a continuation of the current situation".

119. Dr Dickson saw Mrs Becker on 24 May 2007 and subsequently received some x-rays dated 7 June 2007. He had various reports, including all those available to Dr Champion as well as the clinical notes of the physiotherapist apparently and a report of Dr Stewart, with which I was not favoured a copy. He also had Dr Champion's first report.

120. The history taken of the incident was generally consistent with the evidence given before me, as was the history of the immediate aftermath and the difficulties Mrs Becker had with domestic chores.

121. He knew of the earlier 2001 incident but was told, wrongly, that "the pain settled after a few days".

122. He found that Mrs Becker had considerable anxiety and depression. He noted her pre-existing spondyliolisthesis of the lumbar spine and the prior treatment.

123. He expressed his finding as to causation in a slightly curious way. He found:

The persistence of the symptoms is related to the accident. However, the underlying orthopaedic pathology (the spondylolisthesis) has been present long before the accident. The symptoms are complicated by the presence of the anxiety and depression and there is significant evidence of abnormal illness behaviour. While her symptoms have dated from the time of the accident, the persistence of them cannot be related to the accident.

124. The first sentence is directly inconsistent with the last sentence. I am not sure what to make of that. Initially, I thought that Dr Dickinson had left out a "not" from the first sentence, but the use of "however" in the second sentence would be inconsistent with that. It makes it difficult to see exactly what he is saying.

125. He found that Mrs Becker was fit for work. In an unvarnished way, that is inconsistent with all other medical opinion; even Dr McGill found her to be unfit for a number of the heavier tasks she used to perform and this would clearly restrict her work. Dr Dickinson found, in contrast, that she needed no help as a result of her injuries.

126. He advised that the impairment suffered by Mrs Becker was not related to the 2002 incident but to her spinal condition. He found that her symptoms were related to her underlying condition, and her "ongoing functional disorder" of the lumbar spine.

127. Dr Dickinson was cross-examined. He was asked about the inconsistency to which I referred above (at [124]). He said:

... you're quite right, that appears to be at odds and what I'm trying to say there perhaps is that, in not a clear a way as I should've, is that I believe that the anxiety and depression and the illness behaviour related to this were the cause of the symptoms rather than the actual pathology.

I see so ...? So, I understand that that hasn't been properly written.

128. He accepted that Mrs Becker had been legitimately complaining of back pain since the 2002 incident. He also accepted that spinal and related post-injury pain disorders and post-traumatic stress disorders interact, the one tending to worsen the other.

129. He thought, however, that a pain could have the persistence of symptoms when there is no underlying pathology that would explain the symptoms. He described this as an "abnormal illness behaviour pattern." He expressly deferred to Dr Champion's views in his judgment on pain management. He did, however, feel that when the orthopaedic cause of the pain had disappeared, that any continued symptoms which were perceived did not "augment" the pain, though he accepted that the pain was real to the sufferer.

130. Dr Dickinson also noted that his notes recorded Mrs Becker had ceased employment "in June 2002 mainly due to husband [indecipherable] being sick" and that this is what he had been told by her. He was cross-examined about this as I have noted above (at [52]).

131. Dr McGill prepared a detailed and comprehensive report. He had x-rays from 25 February 2004, 30 March 2007 and 7 June 2007.

132. He had progress notes from Mrs Becker's general practitioners, the report of Dr Featherstone, the notes of Dr Milosevic (which were not in evidence before me), the notes of Ms Tracey Howard, a referral letter from Dr Tanya Burgess, the first report of Dr Champion and the report of Dr Dickinson.

133. He found that Mrs Becker had "long standing degenerative change in the lumbar spine, including spondylolisthesis at L 4/5 and L 5/S1", as well as in the cervical spine.

134. He noted that Dr Milosevic did not think she had suffered a lower back injury and reported that she did not seek treatment for low back symptoms within a week. I am not sure what to make of that for the history given to Dr Featherstone was that she had suffered "lower back pain since the incident". Indeed, her evidence was that she felt back pain on the day of the accident: see [19] above. That, rather than the time of seeking treatment, which may have been delayed for a whole range of reasons, seems the more important issue.

135. He accepted that the 2002 incident "caused an exacerbation of symptoms related to her long standing degenerative change in the low back". He felt that these may have lasted for up to three months. It was not entirely clear to me to what he was referring here. Mrs Becker had apparently, on the evidence of the physiotherapist, supported by Mrs Becker's statement and the evidence of Mrs Becker's co-worker, no particular symptoms prior to the incident and post April 2002 when she stopped seeing the physiotherapist. Even if, as I do, I have a concern about Mrs Becker's memory, the other evidence is relatively objective. The degenerative changes were there prior to the 2002 incident but appear, as Dr Champion said, to be asymptomatic.

136. Dr McGill agreed that Mrs Becker was not fit for heavy lifting or heavy manual activities and acknowledged she would experience discomfort with vacuuming or sweeping for more than short periods. He did not opine on whether she could work and whether standing for long periods would cause pain, though this might be inferred from his comments.

137. He accepted that she would continue to have the pain she currently experiences and would be likely to continue to experience fluctuating low back pain and intermittent pain radiating into one or other lower limb. He felt that surgery would not be of no benefit to her. He did not recommend further treatment. He eschewed any comment on the psychological symptoms Mrs Becker suffered.

138. Dr McGill was also cross-examined. He initially accepted that his comment about the lack of complaint at the time about her lower back in the light of Dr Featherstone's report was odd, he said that he felt nevertheless that the accident would not have "been sufficient to cause a back strain" because of the lack of complaint. I note that the transcript actually records Dr McGill saying the incident "would've been sufficient" but the sense of what he actually saying was to the contrary.

139. He was asked about the finding that the effect of the accident would have lasted for three months. He answered that this was based on his clinical experience and that the period was an outer limit. It seems inconsistent, however, with the evidence from the physiotherapist's notes, thus reducing the capacity for me to rely on his opinion.

140. He reaffirmed the importance of a medical history of the patient but accepted that pain can influence psychological symptoms and psychological symptoms can influence pain. He refused, however, to answer in regard to causation or effect of the suggested post-traumatic stress disorder.

141. Dr Lewin saw Mrs Becker at the request of the defendant's lawyers, though his report was relied on by Mrs Becker as well. He received "a dossier of medical reports and other documents" which he listed in an index not available to me.

Becker v Queensland Investment Corporation and Bovis Lend Lease Pty Ltd [2009] ACTSC 134

At a glance

Court

Decision date

Before

Source

Judgment (300 paragraphs)

Becker v Queensland Investment Corporation and Bovis Lend Lease Pty Ltd [2009] ACTSC 134 (12 October 2009)

Parties

Legislation Cited (8)

Cases Cited (9)