Betridge v BHP Australia Coal Pty Ltd [1995] QSC 318

;.. .· :A•fState Reporting Bureau:::c '95(.s\~....-- . TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 32 of 1994 KEITH RICHARD BETRIDGE and BHP AUSTRALIA COAL PTY LTD ROCKHAMPTON .. DATE 08/12/95 JUDGMENT 1 'REVISED COPIES ~9fltl0 State Reporting Bureau Date it / tcJ-1 C/,-·- .• --,!··- " ~- - ....... -..... - Plaintiff Defendant -- 4th Floor,· The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 13 -- 08'r295 (Demack J) HIS HONOUR: Mr Betridge was born on 13 February 1957. He was -....-~injured in the course of his employment with the defendant on 20 January 1993. Mr Betridge is one of those people who has a transitional vertebra at the end of his lumbar spine~ This has produced some confusion in the reports, but it seems to me that at the end of the hearing of all of the evidence the matter is c~~ar· enough. He also has multi-level disc disease of·a·Scheuermanns' type. This effects his lumbar spine. ·--=-. -- He sustained an injury in the course of his earlier employment in 1985. He was treated about 18 months later by a Dr William Ryan who performed surgery on 17 November 1986. In that surgery the doctor removed a large sequestrated portion of a disc. According to his report this was in respect of the disc at L4/5. The actual location of this particular prolapse and the ~cqucstrated material was something that caused Dr Bulwinkel considerable concern later on and it is in respect of that that there is some debate as to the actual disc that was previously effected. However, after that treatment, Mr Betridge was able to return to work. He was self-employed in Rockhampton for a time -driving a bobcat and around about the end of 1989 and-..!__!lto January 1990 he experienced severe back pain. He consulted his general practi~ioner, Dr Bennett, who referred him to Dr Bulwinkel. The referral and the doctor's reply back to Dr Bennett are Exhibit 50. This document only came to ligbt fairly late in the trial when Dr Bulwinkel was giving his evidence. He explained that it had been on another file and had not been on the file relating to the treatment he -. JUDGMENT 2 10 20 30 40 50 GO -- 2 of 13 -- 08r'295 (Demack J) administered to Mr Betridge following his injury on 20 January 1993. ·-....,..._ Because the matter arose late, other doctors did not have the opportunity of considering the material in Exhibit 50 and neither was Mr Betridge further cross-examined on it. However, what Dr Bulwinkel reported back to Dr Bennett was thqt Mr Betridge was aware of the ways in which he ought to look afte~ his back and-that operating a bobcat was not re~lly_an··occupation suited to his spine. ·..,..C... ,_ After selling the bobcat business, Mr Betridge was unemployed for a time and·then became a serviceman employed by the defendant on 25 May 1992. On 20 January 1993 he was injured when a self-retracting fuel line dragged him back against the service truck. Liability was not in issue. He sustained a severe injury to his left wrist and his back came forcibly against the truck. It seems also that the way he was pulled back involved some twisting of his spine. His immediate concern was with his wrist which swelled up dramatically. He was able to keep working but two days later, as he stepped up onto the mudguard of the tanker, he telt severe patn in hi~ lumbar spine. He was taken to his -local doctor and subsequently_referred to Dr Bulwinke!..;g_n__11 February 1993. The doctor performed extensive investigative procedures and satisfied himself that there were injuries to both L4/5 and. L5/S1. However, because of the transitional vertebrae and because of some possible disagreement as to how the lumbar vertebra ought to be numbered in such a circumstance, it-.. JUDGMENT 3 10 20 30 50 60 -- 3 of 13 -- OJ!.T"295 (Demack J) appears that Dr Bulwinkel's L5/S1 is more likely than not the ~-same disc as the one upon which Dr Ryan performed surgery in 1986. Dr Bulwinkel performed a spinal decompression and postero-lateral fusion with internal fixation. He used Simmonds screws and·plates: -He believed that the surgery was successful, the wound healed well and, according to X-rays, the plate seemed to be securely screwed in.~owever, --=- . - Mr Betridge complained of continuing severe pain and eventually the plate was removed and some of the screws were found to be loose. Following that, Mr Betridge had a number of admissions, both in the Moranbah Hospital and the hospitals in Rockhampton. He sought ~nd obtained tre~t~ent for persistent sevpre h~ck pain and beGame opiate dependent. He attended a pain clinic at the Royal Brisbane Hospital and he subsequently attended a pain clinic at the Pioneer Valley Hospital in Mackay. In the course of this, he became the subject of a dispute between Dr Alroe and the Health Department about his position on the Methadone program. I must admit that I do not fully -understand the ramifications of Dr Alroe's dispute ab~.-t..bis. It is sufficient to say that at the moment all the other people in Central Queensland on a Methadone treatment progra~ are under the oversight of Dr Alroe but Mr Betridge is under the oversight of a general practitioner, who has no specialised training in respect of such a dependent drug. Mr Betridge is very conscious of his problem, as is his-.wife. JUDGMENT 4 10 20 30 40 50 60 -- 4 of 13 -- 08~295 (Demack J) In order to become less dependent on this medication, which is ........ obviously addictive, they have moved to Green Hill, which is a small seaside community south of Sarina. The thought was that if it was difficult to travel to a hospital, there would be less inclination on Mr Betridge's part to seek that kind of treatment. It is by no means clear that this laudable philosophy i~ pioducing any clear results. Mr Betridge has been very hard to live wi t~--Their two daughters, who are now young women, have left home and they have put their teenage son in boarding school. Mrs Betridge appears confident that their relationship is strong and will survive. Nonetheless, it is clear that Mr Betridge has a very severe problem with pain. He also, of course, has the lower p~rt half of his spine fused. The fusion is to the L4/5 into the sacral joint. That in itself is a very disabling condition for someone whose work has always been of a heavy nature. However, because of the combination of pain and physical limitation arising from fusion of the lumbar spine, I am satisfied that Mr Betridge is to all intents and purposes -unemployable. ~-- The major dispute in the trial has been about the effect of the injury in 1986 and also the pre-existing degenerative condition, which I have described. Dr Quaile was the first of the very experienced orthopaedic surgeons to give evidence. He really did not have a ful-1 JUDGMENT 5 10 20 30 40 50 60 -- 5 of 13 -- 08~295 (Demack J) picture of Mr Betridge's history as it subsequently emerged --....- and it seems to me in the light of the other evidence· that his opinions are much too optimistic. Dr Bulwinkel, who was the one who performed the surgery in 1993, was reluctant, it seemed to me, to express any precise opinion abouj: the combined•effect of that 1986 surgery and the pre-existing disability. He appeared to be caught by the fact_ 10 that he had been asked ao advise about the par.tern of---woi-k --=- . ~---' that Mr Betridge ought to follow in 1990 and then after that Mr Betridge sustained this further injury which has had such grossly disabling effect. This seemed to dampen his enthusiasm for any prognostication about the impact of that 1986 surgery upon Mr Betridge's future working life. Consequently, I am left ~ith Dr Curtis' estim~tes, which seem to me to be consistent with what Dr Bulwinkel found in 1990 and consistent with the fact that surgery to the lower lumbar spine, combined with a degenerative condition, would seem to be likely to be significantly disabling to a person once that person reaches the 50s. - a Consequently, for the purposes of assessing future lo~.oL income, I will accept the premise advanced by Dr Curtis that 10 years after the incident in 1993, Mr Betridge would have had to seek lighter work even if that incident had never happened. After that, he had five years of light work available to him. In calculations, this means that at present his loss of future earning capacity consists of seven years from now earning the higher rate of pay available to him... with JUDGMENT 6 20 30 40 50 60 -- 6 of 13 -- 08,.295 (Demack J) the defendant and then a further five years at a lower rate . .,,._ I .-r~ I will deal with that calculation as I go through the· figures that are proposed. That really is the only matter significantly in dispute in the action, because Mr Betridge was earning a substantial weekly income in a §ecure position. - He was multi-skilled and in a time·when·the practice on the coalfields is to encourage multi-skilling, he had secure employment that·-was well"""1?ctid . . ~· He also had the advantages that come from subsidised housing and had some advantages in relation to other benefits employees receive. I will go through the proposed list, which is Exhibit 55, and really deal only with those where there is some dispute. Past economic loss is not in dispute and I assess that at $142,034.06. There is a further claim for a loss of earnings that ought to have followed the passing of a skills test. This was not in dispute and I assess that at $13,500. Taking into account the payments that have been received from the Workers' Compensation Board, I will allow interest on the -combined past loss to the extent of $105,201.82. I a~~ss that interest at $17,358.30. In respect of future economic loss, as I have said, I will proceed on the basis of seven years loss of the higher rate of pay from the present and then five further years at the lower rate. I will round off the present figure for the purpose of calculation at a net of $900 per week over seven years,_this JUDGMENT 7 10 20 30 40 50 60 -- 7 of 13 -- O..§_T'295 (Demack J) is a sum of $278,100. For the further. five years I will allow _-- ~- a weekly loss of $600 and the multiplier for that period is 165. That represents in all $99,000. These matters seem to me to be ones where one cannot be exact, so I will round off the future economic loss at $375,000. Past domestic assistance is not in dispute. Mrs Betridge is quit~ essential to her husband's well-being. He has a considerable number of needs that have beencieated bec"ause of ---=-. ·--· his disability and her assistance in meeting those needs is compensable. I shall allow $19,285 in respect of that assistance rendered in the past and interest on that sum in the amount of $1,060.67. It is the constant hope of all of the medical practitioners who have advised Mr Detridc;e that somehm-1 he ,.-,ill be able to become less dependent on drugs. Whether the doctors expressed that in writing or whether they gave evidence, that was the constant theme. Consequently, it seems to me that in the future one must approach it with some degree of optimism, so that I do not propose to allow the full claim for future domestic assistance. Nonetheless, the past experience-suggests that the optimism ought to be fairly guarded,~- so I will allow the sum of $80,000 for future domestic assistance. The next two items on the plaintiff's claim are in respect bf past and future cost of servicing a motor vehicle and the loss of some employment related benefits. I shall lump those together and allow $5,000. It seems to me that the emp.reyment JUDGMENT 8 10 20 30 40 50 60 -- 8 of 13 -- osr295 (Demack J) related benefits that Mr Betridge spoke about have not all been iqentified as part of his terms of contract. It.does not appear that he would receive, for instance, reduced prices on lysaght products. The thing that is clear is that there was some benefit in relation to health funds and there was some possible benefit in borrowing money from a credit union. These things~cannot·be measured precisely so, as I have said, I 0ill-a1low the sum of $5,000 to cover those two items. ---- I have mentioned the fact that Mr Betridge and his family enjoyed low rental housing and I shall allow in respect of the past figure the sum of $10,000. Again, it seems to me alternative accommodation cannot be calculated as precisely as proposed in Exhibit 55. I shall allow interest on that sum in the amount of $1,650. For the future, I will allow a loss of subsidised housing at c1 rate of $110 per week over 72 yecJ.rs, which is the sum of $52,000. Past loss of superannuation entitlements was not in dispute. I shall allow $9,875. Interest on that amounts to $1,629.38. Again, with future superannuation loss, I shall allow that over 12 years rather than 22 and shall allow the sumo! $30,000. ~-- There is a claim for modifications to Mr Betridge's house. It seemed to me that Mr Deshon was over-generous in the things that he was regarding as necessary and I shall allow there ~he sum of $10,000. I have not attempted to apportion that precisely according to his figures, but it seemed to me it was highly debatable whether the proposals he had for the fl:-oor JUDGMENT 9 10 20 30 40 50 60 -- 9 of 13 -- 08T295 (Demack J) were necessary and certainly this was·not something on which -~~· the doctors were clearly in agreement. So I will allow the sum of $10,000 under that item. I shall combine the claim for future medication and future costs of medical consultations and allow an amount of $12,000 10 to cover those two items. "Again, it seems to me that, as I have· said• in respect of future domestic assistance, there must - be some optimism expressed, particularly inthe lightc5'f --=- . .··-·Dr Alroe's hopes of control of the opiate dependency. If that 20 optimism proves to be true, then the future medication ~osts and medical consultation costs will be much less than claimed. Special damages were not in dispute in the amount of $81,561.64. Interest on the appropriate sum is $593.90. The amount of periodic income tax deductions from the Workers' Compensation payments is $8,428.40. The only other item is pain and suffering and loss of amenities. The difficulty in this case arises from the fact that on the medical evidence Mr Betridge would have been -significantly disabled because of his degenerative sp:i"tte-,- coupled with the operation in 1986. He was quite young when he had that surgery and it seems likely that in his 50s he would have been significantly disabled. He is now significantly disabled. The difficulty is to try and work out whether there would have been anything like the level of pain if his disablement-had JUDGMENT 1 0 30 40 50 60 -- 10 of 13 -- 08T295 (Demack J) similarly come on by natural progression. It seems to me more ·-.....-~ likely than not that the pain that he has suffered since the operation arises principally from something that went wrong in that surgery. It is not possible to determine why it is that he suffered such acute pain and why this has persisted and why in response to that he has become opiate dependent. He had previously had the surgery· to the spine and recovered well fro~ that~ Consequently, it seems to me that the disability that he has because of pain is more likelythan not .~· attributable solely to the incident he sustained on 20 January 1993. Because of his injury he has lost the social contacts that work gave him. He has become estranged from his daughters who are now young women. His marriage has been under considerable strain a.nd he lost the rcgula:::- contact he had with his son, which he had thoroughly enjoyed. Prior to his accident he enjoyed playing golf and riding motorcycles and enjoyed spending time with his family and seems to have found a great deal of pleasure in watching his two daughters and son pass through their teenage years. He has now lost the benefit of all of that close bonding that should have meant that the -remainder of his life was lived in close harmony with~ children. It may be that as his children grow older and come to understand the things that he has passed through, the 10 20 30 40 ..· ~- ~ relationships will be restored. However, at the moment, instead of being a source of pleasure they have become a burden and a sadness for him and for his wife and children. He has had two major surgical procedures. He has had many ---- JUDGMENT 1 1 60 -- 11 of 13 -- 08i295 (Demack J) attendances in hospital and he has had two failed attendances - .---c ----~ at a pain clinic. The report from the Royal Brisban~ Hospital in respect of his attendance there expresses rather well the nature of his pain problem. This is Eihibit 11 and it reads: "Mr Betridge has mechanical pain arising from his lumbar spine which is unlikely to be helped by the use of drug_s. Surg.ical treatment for this pathology has bee~ attempted an& failed. It is very i~portant that he continue with some form of psychological management to help him ·cope with the pain and disability. Mr Betridge will be permanently disabled by pain bltt· any physical musculoskeletal disability would be better assessed by an orthopaedic surgeon. As-I have mentioned above, drugs are un£:k-}<ely to provide him with any benefit but in the future he may main relief from a spinal cord stimulator with two epidural electrodes." That possibility has not been explored because of the fact 10 20 that at the moment with opiate dependence Mr Betridge is not 30 in a condition to undertake surgery. Mr Betridge's own observation of his period in the Royal Brisbane Hospital wa~ described in his statement, "My time at the pain clinic was the worst experience I've 40 had in my life." -~-- I assess pain and suffering and loss of amenities at_$60,000. There has been a substantial payment by the Workers' Compensation Board for permanent/partial disability and I will so allow interest on the amount of $5,000 which I assess at $275. The total assessment then is $931,251.35. The Workers' 60 JUDGMENT 1 2 -- 12 of 13 -- 08i295 (Demack J) Compensation Board refund is $94,516.53. There will be .,, __-o; ~ judgment for the plaintiff against the defendant for· $836,734.82. I order that the defendant pay the plaintiff's costs of the action taxed on a solicitor and client basis. o•r:- • - JUDGMENT 1 3 10 . 20 30 40 50 60 -- 13 of 13 --