Pasqualotto v Pasqualotto

[2011] VSC 550

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2010 03305

ADAM PASQUALOTTO	Plaintiff
v
R & L PASQUALOTTO	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	6-7, 10-12, 14, 17-19, 21, 24-25 October 2011
DATE OF RULING:	26 October 2011
DATE OF REASONS:	27 October 2011
CASE MAY BE CITED AS:	Pasqualotto v Pasqualotto
MEDIUM NEUTRAL CITATION:	[2011] VSC 550

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WORKER’S COMPENSATION – Injury to lumbar spine – Picking tobacco leaves on tobacco farm – Claim against employer in negligence and for breach of reg 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999 and reg 704 of the Occupational Health and Safety (Plant) Regulations 1995 – Jury found there was no negligence but there was a breach of the Regulations – Employer’s knowledge of employee’s prior injury to lower levels of the lumbar spine from car accident – Contributory negligence.

PRACTICE AND PROCEDURE – Application for judgment without deduction for contributory negligence notwithstanding jury verdict – Leave reserved for making of the application – Application refused. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D B Ingram with Mr G A Worth	Clark Toop & Taylor
For the Defendants	Mr W R Middleton SC with Mr P B Jens	Wisewould Mahony

HIS HONOUR:

Introduction and summary

1. Following a 12 day trial, on 25 October 2011, a jury of six returned a unanimous verdict for the plaintiff in the sum of $844,067 in his action against the defendants in which he alleged that, on 17 March 2005, he sustained an injury to the L3/4 disc in his lumbar spine (‘L3/4 injury’) while working as a labourer on the defendants’ tobacco farm in Myrtleford (‘farm’). 

1. The jury’s verdict was based on a finding that the defendants were not negligent but that they had breached reg 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999 (‘Manual Handling Regulations’) and reg 704 of the Occupational Health and Safety (Plant) Regulations 1995 (‘Plant Regulations’). I will refer to the Manual Handling Regulations and the Plant Regulations collectively as ‘the Regulations’. The jury found that the plaintiff was guilty of contributory negligence to the extent of 70 per cent. The jury awarded damages for pain and suffering in the amount of $400,000 and damages for loss of earning capacity in the amount of $444,067.

1. After the jury was discharged, the plaintiff applied for an order that the jury’s finding of contributory negligence be set aside and that judgment be entered in his favour notwithstanding that aspect of the jury’s verdict. 

1. The plaintiff’s application was made pursuant to leave that I reserved on 19 October 2011.  The application relied on the following grounds:

(a)       the finding of contributory negligence was not open on the evidence because the plaintiff did not contribute to the defendants’ breach of the Regulations;

(b)      as the L3/4 injury occurred while the plaintiff was performing work in accordance with a specific direction from…