Legal Research
Cases
Pasqualotto v Pasqualotto

Pasqualotto v Pasqualotto

Case [2013] VSCA 21 19 February 2013

Negligence

Contributory Negligence

Unjust Enrichment

Employer Liability

Occupational Health and Safety

Personal Injury Law

Employment & Labour Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0180

ADAM PASQUALOTTO	Appellant
	v
R & L PASQUALOTTO	Respondents

---

JUDGES	TATE, OSBORN and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 and 30 October 2012
DATE OF JUDGMENT	19 February 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 21
JUDGMENT APPEALED FROM	Pasqualotto v Pasqualotto [2011] VSC 550 (Kyrou J)

---

PERSONAL INJURY – Negligence – Contributory negligence – Statutory duties under the Occupational Health and Safety (Manual Handling) Regulations 1999 and the Occupational Health and Safety (Plant) Regulations 1995 – Jury trial – Directions – Appellant sustained back injury while working as tobacco picker – Where employer directed appellant to continue working after appellant asked to stop – Employers’ knowledge of prior injury to back – Whether employer failed to provide safe system of work – Whether verdict open – Appeal allowed.

PRACTICE AND PROCEDURE – Whether trial judge erred in application of the rule in Browne v Dunne.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Ingram with Mr G Worth	Clark Toop & Taylor
For the Respondents	Mr M Wheelahan SC with Mr M Rush	Wisewould Mahony

TATE JA:

I agree with the reasons of Osborn JA and the orders his Honour proposes.

OSBORN JA:

I have had the considerable advantage of reading the reasons of Whelan JA in draft. It is unnecessary to repeat his detailed summary of the course of the proceeding and of the evidence at first instance, save to note the following central matters.

The appellant is the son of the respondents. He was born on 10 September 1975 and grew up on his parents’ farm. On 24 May 1994, he suffered injury to his lower back in a car accident. On 18 December 1997, Mr Graham Brazenor performed a double fusion operation at the L4/5 and L5/S1 levels of the appellant’s spine. Subsequent to that operation, Mr Brazenor advised the appellant that he should not work on the farm or perform other manual work involving lifting and bending at the waist.

At the end of December 1998, the appellant started working on his parents’ farm again. He initially performed light duties only, but gradually increased the range of his work, although he avoided a number of heavy tasks. It was accepted by his parents that if he needed a rest as a result of back pain he could take one.

From 2000 onwards, the appellant worked each year as a picker on a tobacco harvesting machine. He was required to sit on the lower level of the harvesting machine as it slowly moved forward along the rows of tobacco plants and to continually stretch and bend to pick mature tobacco leaves. As the machine moved, it created some vibration and the combination of the stretching and bending motions and the vibration placed strain on the appellant’s back. He worked a 12 hour day.

On 17 March 2005, while working on the harvesting machine the appellant experienced back pain and…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Pasqualotto v Pasqualotto

Details

AGLC: Pasqualotto v Pasqualotto [2013] VSCA 21
Case: [2013] VSCA 21
Decision Date: 19 February 2013

CaseChat Overview and Summary

The case of Pasqualotto v Pasqualotto involves the appellant, Pasqualotto, who was injured in the course of employment as a tobacco picker. Pasqualotto sustained a back injury while working, and he subsequently sued his employer for negligence. The employer, Pasqualotto, argued contributory negligence on the part of the appellant. The dispute reached the court, which had to determine whether the employer failed to provide a safe system of work, whether the employer was aware of the appellant's prior back injury, and whether the verdict reached by the jury was open to challenge. Additionally, the employer contended that the trial judge erred in the application of the rule in Browne v Dunne.

The legal issues before the court involved the statutory duties under the Occupational Health and Safety (Manual Handling) Regulations 1999 and the Occupational Health and Safety (Plant) Regulations 1995. The court had to assess whether the employer fulfilled their obligations under these regulations and whether they were aware of the appellant's prior back injury. The central issue was whether the employer's direction for the appellant to continue working, despite his request to stop, constituted a failure to provide a safe system of work. Furthermore, the court needed to determine whether the verdict reached by the jury was open to question, considering the evidence presented during the trial.

The court found that the employer did fail to provide a safe system of work, given that they directed the appellant to continue working despite his request to stop due to pain. The employer was also aware of the appellant's prior back injury, which further emphasised their responsibility to take appropriate measures. The court held that the verdict reached by the jury was open to challenge, and the trial judge had erred in the application of the rule in Browne v Dunne. Consequently, the appeal was allowed, and the case was remitted for a new trial.

The final orders of the court were to allow the appeal and remit the case for a new trial. The court determined that the employer had failed to provide a safe system of work, given their awareness of the appellant's prior back injury and their direction for the appellant to continue working despite his request to stop. The court also found that the trial judge erred in the application of the rule in Browne v Dunne, which led to the verdict being open to challenge. The appeal was therefore allowed, and the case was sent back for a new trial.

Orders