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.