New South Wales Supreme Court CITATION : CAVALLARO v FAMICORP PTY LTD [2000] NSWSC 480 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 400021/99 HEARING DATE(S) : 25/05/00 JUDGMENT DATE : 2 June 2000 PARTIES : Vincent CAVALLARO v Famicorp Pty Ltd JUDGMENT OF : Barr J at 1 COUNSEL : Plaintiff: BMJ Toomey QC/A Black Defendant: IDM Roberts SOLICITORS : Plaintiff: Walsh & Blair Defendant: William K Chambers DECISION : See paragraph 44 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J Friday, 2 June 2000 400021/99 - VINCENT CAVALLARO v FAMICORP PTY LTD JUDGMENT 1 HIS HONOUR: The plaintiff, Vincent Cavallaro, was injured in a work accident on 14 October 1997 and sues his employer for compensation for the injury, loss and damage that he suffered as a consequence. The defendant filed a defence denying liability and raising questions of contributory negligence and various other issues, without regard to the merits of the case. However, defence counsel sensibly made no submissions about the defendant's liability or any suggestion of negligence on the part of the plaintiff. Obviously the plaintiff must have a verdict. The principal issue is the extent of loss of the plaintiff's wage-earning capacity. 2 The plaintiff, a resident of Deniliquin, was employed in the defendant's abattoir there as a slaughterman. The carcasses of animals were slung on hooks which ran on a rail, moving them through the abattoir for processing. The plaintiff's job was to skin carcasses as they came to him. Sometimes the supply of carcasses at the head of the production line was such that they had to be slung two to a hook. When that happened, the workers down the line had to hang them again so that there was only one to a hook. On the day of the plaintiff's injury carcasses of old sheep, weighing fifty kilograms or so, were being processed. The occasion arose for the removal of a carcass in the manner I have indicated, and the plaintiff and a fellow worker took hold of it and lifted it. The plaintiff's fellow worker let go of the carcass without warning before it had been put into its new position, and all its weight was thrust onto the plaintiff. He immediately felt a jarring in his lumbar spine and a lot of pain. 3 The plaintiff kept going as best he could for the rest of that day and the next, but had to give up and seek medical help. 4 His general practitioner advised him to stay home and referred him to an orthopaedic surgeon, Dr Kudelka, who referred him in turn to a neurosurgeon, Dr Popovic. They both agreed with a diagnosis of a left-sided L4-5 disc protrusion impinging on the nerve root and giving rise to left sciatica. Both suggested that spinal surgery would probably be required. 5 The plaintiff was also seen by Dr Phillips, surgeon, who saw him in June 1999 and recommended discectomy and fusion at L4-5, but who in a later report thought that conservative treatment was more appropriate. He suggested facet joint injection, followed possibly by radio-frequency denervation and intense physical rehabilitation to improve the bulk and tone of the muscles of his back. 6 All the specialists who have seen the plaintiff agree that his condition is permanent and will not improve, except perhaps with surgery. They consider reasonable his present complaints, that is that he has pain in the lower back all the time, fluctuating in intensity and being worse in cold weather and worse after sitting or standing in a fixed position for any length of time. His back pain is worse on bending and twisting, on coughing, sneezing, straining and jarring. He has intermittent left-sided sciatica and a feeling of paraesthesia in the leg and the foot. The left knee is weak and can give way. He has to avoid rough or irregular ground and has difficulty with stairs. 7 Hydrotherapy was recommended for him, but he tried it and gained no relief. Pain killers have been prescribed, but he cannot take them because of the effects they have upon other body functions. He tries to avoid fixed positions which produce pain, puts up with the pain he has and takes Panadol when he has to. That gives him only limited relief. 8 The plaintiff is unsure whether to undergo surgery. He has considered the matter seriously and has spoken to others who have done so. He is aware of the risks that would be involved. At the present time he prefers not to undergo surgery but to persevere with the pain management program that has been suggested. That program has not yet begun. 9 Even if he did have successful surgery, the likely improvement in his pain would probably not be complete. 10 The plaintiff was born on 10 October 1961 and is now thirty-eight years of age. He is a fairly tall and well-built man. He is married with two children. He left school at sixteen years of age and began a career of mainly manual work. He was employed for about a year as a builder's labourer and as a mechanic's assistant. Then he worked for a year as a salesman, delivering goods to farms. In doing so he became used to handling heavy items. Then he worked for fifteen years in the general store owned by his parents. During his time there he engaged in active physical work. In 1986 or 1987 he had an accident at work when a steel bar struck him in the left eye. He had to have a few months off work and the result is that he is now almost blind in that eye. In 1993 he left his job in the family business, which was not doing well, and started working in the defendant's abattoir. He was trained on the job and remained in that work until his accident, apart from a period during 1995 and 1996 when the abattoir temporarily closed. During that period he worked for a time at another abattoir and for a further time as a rigger building weirs in irrigation channels. 11 The plaintiff has no special trade or other formal qualifications. 12 Although he could not return to the abattoir, the plaintiff looked for work and got a job in December 1997 managing the fruit and vegetable section of Coles Supermarket at Echuca. He lasted five weeks, but could not manage the job any longer and resigned. He told the Court that there were two reasons for this, namely the effects on his back of having to unload heavy pallets of vegetables and the like and of having to drive each day from Deniliquin to Echuca and back, which took an hour each way. 13 At about Easter 1998 he met a man called Danckert, who had a business digging trenches and installing culverts, pipes and the like. The plaintiff's job consisted of using a shovel to level the surface of the sand in the trenches for the proper bedding of the pipes. He had to wrap chains around the pipes. He also had to drive a utility truck. He described the work as heavy duty. He did this kind of work for two periods of time. The first lasted on and off for about six months, during which time he averaged four days per week. During that period he missed two or three weeks' work. 14 He found himself in a lot of pain at the end of each day and gave up the job because he could not put up with the discomfort any longer. He was paid $100 per day. 15 After that, he could not obtain work for quite a long time and busied himself doing jobs about the house. He worked for Mr Danckert again for three weeks in September or October 1999. Altogether Mr Danckert paid him $13,000. Then he spent a few days working for his father-in-law, who owns a tomato farm, picking up pot plants and placing them in position in a glasshouse. He also got a job for two or three days cleaning up a house for a builder. Some of that work was light, but part of it was hard, requiring him to use a loaded wheelbarrow. He has also helped install kitchen cupboards. 16 He does not like being out of work and has repeatedly taken on work that is not really suitable for him, judging by the opinions of the specialists advising him. 17 He has suffered some depression as a result of all these matters and drugs have been prescribed. Unfortunately, they have the same effect as pain killers and he cannot take them. 18 The plaintiff's injury and its consequences have had a serious effect upon his personal life, including his relationships with his wife and children and with his intimate life. 19 He now does what work he can, including mowing lawns at home, something I think that he should not be doing. He does not let his disabilities stop him doing things and prefers to do them and suffer pain. He still goes fishing from a boat. He used to play golf and go shooting, but he is unable to follow those pursuits. 20 He thinks that he could do a job managing a store or any job involving light duties. Non-economic loss 21 The plaintiff is still a fairly young man. The disc protrusion has and will have serious consequences for him. He will continue to suffer pain in the lumbar spine, and across the left buttock and down the leg, together with the paraesthesia I have mentioned, indefinitely. His prospects are unclear and it cannot be assumed that he will obtain any substantial or lasting relief. Even if he has surgery he will not be cured. I think that his non-economic loss is fifty percent of that of a most severe case. In making this assessment I have allowed for the possibility of pain relief and for the possibility of permanent partial relief of the plaintiff's symptoms after surgery. I award him $113,325. Past economic loss 22 The plaintiff was earning an average of $555 per week net whilst he was employed by the defendant. His loss is therefore - 136 weeks @ $555 $75,480 less net earnings from - Coles Supermarket $3,595 Mr Danckert $13,000 The plaintiff's father-in-law $ 500 $ 17,095 Net past wage loss $58,385 Future economic loss 23 Although conceding that the plaintiff had suffered a serious injury with a substantial effect upon his economic capacity, defence counsel did not accept the plaintiff's claim to be fit only for managerial or light work or work requiring less than a full day or a full week. Counsel pointed to a number of occasions upon which the plaintiff had made statements or failed to make disclosures which, it was submitted, demonstrated a lack of candour and consequent unreliability. 24 The first instances relate to the reasons given by the plaintiff for leaving his job with the defendant and the job at Coles. When he applied to Coles for work he had to complete an application form. He was asked to describe his most recent employment position and accurately stated particulars of his position as a slaughterman, but when asked to state the reason for leaving he wrote "better job employment". 25 It was put to the plaintiff that when resigning from the job at Coles he told the manager that his reason for doing so was that the drive to and from Echuca took too long. He agreed that that was so, but added that he also told the manager about the difficulty he was having with his back. The defendant did not call the manager to give evidence. A note was tendered in the plaintiff's hand, but all that it said was that the plaintiff wished to resign his position from a named date, giving one week's notice. No reason was offered. 26 I do not think that either of these attacks is sustained. Although the statement that the plaintiff left the abattoir for a better job was misleading and, I think, intended to be so, it is not difficult to understand why a seriously injured job applicant might conceal or play down the extent of his disability. It would be surprising if it were not common. The only evidence about what the plaintiff told his manager about his reasons for leaving the job at Echuca comes from the plaintiff himself. There is no evidence of any misstatement of fact by the plaintiff. 27 The other attacks on the credibility of the plaintiff were more serious and relied on evidence about which there was no dispute. The plaintiff saw his solicitor to instruct him to make a workers' compensation claim. He did not tell his solicitor that he had been earning money by working for Mr Danckert. He did not tell his treating doctors that he had been working for Mr Danckert for about six months, or the kind of work he had been doing for him. 28 The plaintiff saw officers of the Commonwealth Rehabilitation Service and they tried to find him work and assist him rehabilitate, but he did not tell them about the job he had done for Mr Danckert. 29 In the same way, he failed to make disclosure to Professor Jones, a specialist he saw on behalf of the defendant. 30 Later on, when speaking to his solicitor about the present claim, he handed over a document Mr Danckert had prepared, dated 22 October 1999. In the document Mr Danckert certified that his company had employed the plaintiff casually since 1998, and that he had earned approximately $2,000 during the 1998-1999 year and $1,400 during the 1999-2000 year. The plaintiff knew that he had been paid $13,000. He read the document, knew its import and intentionally misled his solicitor in his use of it. 31 The plaintiff told his counsel that the fact that he had not paid tax on the wages received from Mr Danckert was the reason why he had not told concerned persons that he had received that money. I can accept that that was so, but I do not think that that was the only reason why the plaintiff failed to disclose that income. I think that at the same time he was trying unjustifiably to inflate the value of his case. The two methods used - evading tax and facilitating an exaggerated wage-loss claim - had the common objective of securing for the plaintiff the retention or payment of moneys to which he knew he was not entitled. 32 The consequence is that I feel cautious about accepting at face value the plaintiff's evidence about the work he can do and the hours he can work. 33 The plaintiff is well experienced in the retail trade and obtained the job at Coles with ease. I think that he could do a full-time job which required more than mere management or supervision, provided that it did not require him to bend or twist or carry heavy weights. Of course, he lives in Deniliquin, which is neither a large nor a conspicuously prosperous community, and jobs may not be abundant. He may have to wait a long time before finding a job and he may have to travel to find it and do it, but travel is not beyond him. He is well motivated and I think that his chances of obtaining work he can do are better than has been submitted on his behalf. 34 Figures supplied by counsel show that the plaintiff would now be earning about $598 net per week in his job with the defendant. I will assume $600. In his five-week job at Coles he earned over $700 per week net. 35 The plaintiff's loss of wage-earning capacity cannot be calculated, but must be estimated. I estimate it at $300 net per week until age sixty-five, taking into account all the matters I have mentioned. However, I will deduct twenty percent to allow for the vicissitudes of life in view of the facts that abattoirs do not necessarily offer permanent work and sometimes close down temporarily or permanently, that the work is heavy and might sometimes lead to time off or early retirement and that the plaintiff himself has had a number of job changes and might have had more. 36 Assuming earnings of five percent on the fund, the multiplier is 783. The calculation is: 783 x $300 x 0.8 = $187,920. I allow that amount. Loss of superannuation 37 Tables tendered show that the present value of employer-financed superannuation for a person of the plaintiff's age, earning $300 net per week and retiring at age sixty-five years, would be approximately $18,000. I allow that amount. Fox v Wood component 38 This was agreed at $5,244.21. Past medical expenses 39 These were agreed at $5,228.54. Future medical expenses 40 The plaintiff's reluctance to undergo surgery is understandable. A cure is not guaranteed and there are risks, as with any major surgery. The likelihood of the plaintiff's having a discectomy and fusion of L4-5 cannot be accurately predicted. I think it as likely as not that he will have the operation. It seems reasonable to suppose that if there is an operation, it will take place five years in the future. There was no evidence of the likely cost of such an operation, but it might, judging from experience, cost $20,000. I allow fifty percent of that amount, deferred for five years. Assuming earnings of five percent per annum, that produces approximately $8,250. An allowance for the necessary time off work, similarly discounted, increases the sum to $9,000. 41 I allow in addition the sum of $5,000 for medication generally, including the program of pain management the plaintiff is about to enter upon. 42 The total allowance for future medical expenses is $14,000. Domestic assistance 43 There was no evidence of monies incurred for past domestic assistance. Instead of mowing his lawns himself, the plaintiff ought to be able to pay someone else. The appropriate rate is $17 per hour. I assume an average of $10 per week per year. Assuming earnings on the fund of five percent per annum, that produces approximately $10,000. I allow that amount. Verdict 44 These allowances total $412,102.75. The defendant has a defence for monies paid of $46,179. There will therefore be a verdict and judgment for the plaintiff in the sum of $365,923.75. The defendant must pay the plaintiff's costs in an amount to be agreed or assessed. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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