Pasqualotto v Pasqualotto
[2011] VSC 550
•26 October 2011
| 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
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’).
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.
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.
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 the first defendant, the plaintiff’s conduct was not capable in law of amounting to contributory negligence; and
(c) the quantum of the contributory negligence was not open on the evidence.
After hearing the parties’ submissions, I ruled against the plaintiff’s application and informed the parties that I would deliver reasons for my ruling on 27 October 2011. These are my reasons.
Factual background
The plaintiff is the son of the defendants. He was born on 10 September 1975 and grew up on the farm. On 24 May 1994, he was involved in a car accident which resulted in a double fusion operation on 18 December 1997 at the L4/5 and L5/S1 levels of his spine.
The double fusion operation was conducted by Mr Graeme Brazenor. Between December 1997 and December 2000, Mr Brazenor repeatedly advised the plaintiff that, having had the double fusion operation, he should not continue to work on the farm or perform any other manual work involving lifting and bending at the waist, because that activity would virtually guarantee the demolition of the L3/4 disc.
In approximately December 1998, 12 months after the double fusion operation, the plaintiff recommenced work on the farm as a labourer. After an initial period of performing light duties, the plaintiff performed the full range of labouring work on the farm, although he avoided certain heavy tasks. The plaintiff said that he experienced intermittent back pain but, after having a rest, he was able to continue working.
One of the tasks that the plaintiff performed consistently from the beginning of 2000 was tobacco harvesting. This task involved sitting on an ergonomically unsafe seat on a harvesting machine as it slowly moved among the rows of tobacco plants, and stretching and bending to pick mature tobacco leaves. As the machine moved, it created some vibration. The stretching and bending motions and the vibration from the machine placed strain on the plaintiff’s back.
A key factual issue that was in dispute at the trial was whether the second defendant, the plaintiff’s mother, had accompanied the plaintiff to his consultations with Mr Brazenor in the period from December 1997 until December 2000, and had heard the warnings that Mr Brazenor gave to the plaintiff about the risk to his L3/4 disc if he continued working on the farm. The parties agreed that, if the second defendant knew of Mr Brazenor’s advice about the susceptibility of the plaintiff’s L3/4 disc, the defendants’ duty of care would have required them to take into account that susceptibility in devising a safe system of work for the plaintiff.
At the time that the plaintiff returned to work on the farm following the 1997 double fusion operation, he and the defendants agreed that he could work at his own pace and could stop work and go home to rest whenever he experienced back pain. The defendants did not make any modification to the harvesting machine or alter the system of work for conducting the tobacco harvest.
On 17 March 2005, while working on the harvesting machine, the plaintiff experienced back pain and requested the first defendant, his father, to take his place on the machine. The first defendant told the plaintiff that he could not relieve the plaintiff immediately and that the plaintiff should continue working until the machine reached the end of the row of tobacco plants. The plaintiff continued working for another one and a half hours until the machine reached the end of the row of tobacco plants. During that period, the plaintiff experienced increasing pain and, by the time the machine had reached the end of the row, he was in so much pain that he could not stand up.
Following a number of medical examinations, it was determined that the plaintiff’s L3/4 disc had collapsed. In March 2008, Mr Brazenor conducted single level fusion surgery at the L3/4 level. The plaintiff’s claim against the defendants relates to the L3/4 injury and the adverse consequences of that injury for his lifestyle and earning capacity.
The plaintiff’s claim and the defendants’ defence of contributory negligence
The plaintiff’s claim in negligence alleged that the defendants breached their duty of care to him by:
(a) failing to provide an ergonomically safe seat on the harvesting machine;
(b) refusing the plaintiff’s request to stop work on the harvesting machine on 17 March 2005; and
(c) failing to exclude harvesting work from the plaintiff’s duties.
The negligence claim relied heavily on the allegation that the defendants were aware of Mr Brazenor’s advice to the plaintiff and had the same knowledge as the plaintiff about the risk to his L3/4 disc from working on the farm. As the jury found that there was no negligence, it can be inferred that the jury did not accept the plaintiff’s evidence that the defendants were aware of Mr Brazenor’s advice.[1]
[1]It is not clear what weight, if any, the jury gave to the first defendant’s concession that he was aware that if he put further strain on the plaintiff’s back, the plaintiff was susceptible to further spinal injury from that further strain.
The plaintiff’s claim for breach of statutory duty relied on the obligation imposed on the defendants by reg 15 of the Manual Handling Regulations and reg 704 of the Plant Regulations to ensure that any risk to the plaintiff’s back arising from his work on the harvesting machine was eliminated or reduced as far as was practicable. The jury’s finding of a breach of statutory duty means that the jury was satisfied that the defendants breached either reg 15 of the Manual Handling Regulations, or reg 704 of the Plant Regulations, or both. It should be noted that a breach of the Regulations does not require a finding of negligence or the possession of any particular knowledge by an employer of any susceptibility by an employee.
The defendants’ defence of contributory negligence relied on the following alleged breaches of the plaintiff’s duty to take reasonable care for his own safety:
(a)the plaintiff failed to abide by specific medical advice not to engage in farm work; and
(b)the plaintiff engaged in farm work when he knew or should have known that he was at risk of further injury to his lumbar spine.
As the jury found that the plaintiff was guilty of contributory negligence, the jury must have accepted either or both of the above allegations.
Legal principles
In order for a plaintiff to succeed in an application for judgment notwithstanding the jury’s verdict of contributory negligence, the plaintiff must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict of contributory negligence.[2]
[2]Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 31 [127] (‘Popovic’); Naxakis v Western General Hospital (1999) 197 CLR 269, 274-5 [16] (‘Naxakis’).
Where there is evidence to support the jury’s verdict, the verdict cannot be disregarded, even if the trial judge were strongly against the jury’s conclusion.[3]
[3]Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221, 230, cited in Hayward v Georges Ltd [1966] VR 202, 205.
A trial judge hearing an application for judgment notwithstanding the jury’s verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.[4]
[4]Popovic (2003) 9 VR 1, 31 [126].
A trial judge should proceed with great caution and should only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.[5]
[5]Popovic (2003) 9 VR 1, 32 [134].
In this case, judgment for the plaintiff, notwithstanding the jury’s verdict of contributory negligence, can only be entered if there was no evidence upon which the jury, properly instructed and acting reasonably, could find that:
(a)the plaintiff knew, or ought reasonably to have known, that if he continued working on the farm after the 1997 double fusion operation, it was reasonably foreseeable that he would damage one or more discs above the fusion block; and
(b)the plaintiff’s conduct in continuing to work on the farm after the 1997 double fusion operation was a cause of the collapse of his L3/4 disc.
Ground 1: Plaintiff did not contribute to defendants’ breach of the Regulations
The plaintiff’s first ground was that the finding of contributory negligence was not open on the evidence because the plaintiff did not contribute to the defendants’ breach of the Regulations. This ground is misconceived as a matter of law.
Contributory negligence comprises conduct of a plaintiff which:
(a)is in breach of the plaintiff’s duty to take reasonable care for his or her own safety; and
(b)is a cause of the plaintiff’s injury.
In order to constitute contributory negligence, a plaintiff’s conduct need not be a cause of an accident or incident that results in the injury for which compensation is sought; it simply has to be a cause of the injury.[6] Furthermore, a plaintiff’s breach of the duty of care for his or her own safety need not contribute to a defendant’s breach of the duty of care for the plaintiff’s safety. The breaches by a plaintiff and a defendant can occur independently provided that they are each a cause of the injury.[7]
[6]Astley v Austrust (1999) 197 CLR 1, 11 [21].
[7]Simmons v Commonwealth (Unreported, Supreme Court of Victoria, Coldrey J, 8 October 1991)17-19.
In this context, it is instructive to refer to the decision of Coldrey J in Simmons v Commonwealth.[8] That case involved an action by an employee against an employer alleging that the employer’s negligence in exposing him to asbestos dust resulted in his contracting lung cancer. The employer alleged that the employee’s cigarette smoking constituted contributory negligence. The jury found both negligence and contributory negligence and quantified the latter at 70 per cent. The plaintiff moved for judgment notwithstanding the jury’s verdict on contributory negligence. Coldrey J made the following pertinent observations:
[8]Unreported, Supreme Court of Victoria, Coldrey J, 8 October 1991.
The proximity of an act of negligence causing injury and an act of contributory negligence will vary according to the circumstances of individual cases. In a motor vehicle collision, for example, where contributory negligence is alleged, both of the acts resulting in the injury will occur contemporaneously. In an industrial accident situation the negligent creation of an unsafe system of work may precede by some time the activity (which may involve contributory negligence) from which the injury is sustained.
In cases where the injury caused is a disease, and the gestation period is lengthy, the original negligent conduct and the injury it occasions may be separated by years. It does not follow however that negligent conduct by a plaintiff which subsequently contributes to the causation of that injury, must be categorised as being too remote.
Where, as in this case, the conduct of both the defendant and the plaintiff are causative factors in the production of the injury (being a disease), then it is both logical and legally appropriate for an assessment to be made of the conduct of both parties at the time the injury occurs to determine whether there has been actionable negligence and contributory negligence. It is at that time the issues of foreseeability and want of reasonable care fall for consideration. Until that time no cause of action in negligence can arise.
On this analysis the contributory negligence of a plaintiff may be very proximate to the personal injury (being a disease) upon which the cause of action is predicated.
As [counsel for the employer] pointed out in his submission, there is nothing in s 26 of the Wrongs Act 1958 to suggest that any form of concurrence between primary and contributory negligence is required. It is clear that what is to be considered is the responsibility of the litigant for the damage occasioned.
Accordingly I am unable to see that any principle of remoteness precluded the jury from considering the issue of contributory negligence in this case.
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[T]he smoking in this case is causative of the injury itself. It is not something subsequent, additional or super-added to the injury sustained. Here the smoking contributed to the precise injury for which damages were sought.
My task in this ruling is not to determine the appropriateness of the jury attribution of 70 per cent contributory negligence to the plaintiff, it is merely to determine whether the issue of contributory negligence was properly before the jury.[9]
[9]Simmons v Commonwealth (Unreported, Supreme Court of Victoria, Coldrey J, 8 October 1991)17-19.
It may be accepted that, in this case, the jury concluded that the plaintiff’s breach of the duty of care for his own safety did not contribute to the defendants’ breach of the Regulations. However, such a conclusion did not preclude the jury from finding that the plaintiff’s breach of duty was a cause of the L3/4 injury. If there were a requirement that a plaintiff’s negligent conduct must contribute to a defendant’s breach of duty, the defence of contributory negligence would rarely be available in cases where there is a breach of a duty imposed by occupational health and safety legislation, because such duties are invariably imposed exclusively on the employer.
For the above reasons, ground 1 must be rejected.
Ground 2: Whether the L3/4 injury was solely caused by work on 17 March 2005
The plaintiff’s second ground was that, as the L3/4 injury occurred while the plaintiff was performing work in accordance with a specific direction from the first defendant, the plaintiff’s conduct was not capable in law of amounting to contributory negligence.
It is well established that, where an employee is directed by his or her employer to do work in a particular way, then the employee is bound to follow that direction. Accordingly, conduct of an employee in obedience with his or her employer’s specific orders cannot amount to contributory negligence.[10]
[10]Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VR 421, 437-8.
In this case, it was not in dispute that, on 17 March 2005, the plaintiff asked the first defendant to take over his position on the harvesting machine because he had back pain, and that the first defendant directed the plaintiff to continue working on the harvesting machine for another one and a half hours. As the plaintiff was obliged to follow this direction, any injury that was attributable to performing work during that additional one and a half hours cannot constitute contributory negligence.
If the defendants’ allegation of contributory negligence had been confined to the plaintiff continuing to work on the harvesting machine for one and a half hours after he complained about his back pain, then, as a matter of law, the jury would not have been able to find contributory negligence. This is because the plaintiff was acting at the direction of the first defendant.
The defendants, however, alleged that the plaintiff was guilty of contributory negligence in the period from December 1998 until 17 March 2005 in that, throughout that period, he continued working on the farm contrary to the advice that Mr Brazenor had given him between December 1997 and December 2000. In other words, the allegation of contributory negligence involved a continuous course of conduct by the plaintiff over several years rather than a single episode on 17 March 2005.
In support of their contention that the plaintiff’s conduct throughout the period from December 1998 until 17 March 2005 constituted contributory negligence which was a cause of the L3/4 injury, the defendants relied upon the evidence of Mr Brazenor and other medical witnesses. This evidence was to the effect that the degeneration to the plaintiff’s L3/4 disc took place gradually from December 1997 until 2005 and that the events of 17 March 2005 merely brought about the final stage of the gradual process of collapse of the L3/4 disc, rather than being the sole cause of the L3/4 injury. The defendants also relied on contemporaneous statements by the plaintiff to the effect that the back pain that he experienced on 17 March 2005 arose gradually.[11]
[11]The evidence included the plaintiff’s WorkCover claim form and statements in the clinical notes of the Standish Street Medical Centre in May 2005.
In my charge, I directed the jury that, as a matter of law, it could not find contributory negligence unless it made two findings in favour of the defendants. The first was a finding that the plaintiff continued to work on the farm after Mr Brazenor had warned him in December 2000 that such work would virtually guarantee demolition of one or more segments above the fusion block, and that such conduct constituted contributory negligence. The second was a finding that the L3/4 injury was caused gradually in the period from December 1997 until March 2005 rather than solely by the incident of 17 March 2005. As the jury concluded that the plaintiff was guilty of contributory negligence, it must follow that the jury made both of the above findings.
The above findings by the jury mean that ground 2 is unsustainable.
Ground 3: The quantum of the contributory negligence
The plaintiff’s third ground was that the quantum of the contributory negligence was not open on the evidence. This ground is misconceived as a matter of law.
The question of whether there was evidence upon which it was open to the jury to make a finding of contributory negligence is a question of law for the trial judge. Where the trial judge rules that a finding of contributory negligence is open on the evidence, the extent of the contributory negligence is a question of fact for the jury.[12]
[12]Naxakis (1999) 197 CLR 269, 274-5 [16]-[17], 282 [40]; Simmons v Commonwealth (Unreported, Supreme Court of Victoria, Coldrey J, 8 October 1991) 19.
During his closing address, senior counsel for the plaintiff submitted to the jury that there were three reasons why contributory negligence did not apply in this case as a matter of law. At the conclusion of the closing address, and in the absence of the jury, I informed counsel that I was of the view that, depending on the jury’s findings of fact, it was open to it to find contributory negligence. Nothing that counsel put to me in the discussions that followed altered my view that the issue of contributory negligence should be left to the jury. Accordingly, in my charge, I directed the jury that, depending on its findings of fact, the law did not preclude it from finding contributory negligence.
In my opinion, there was an abundance of evidence upon which the jury could find that the plaintiff was guilty of contributory negligence. Once I decided that there was evidence upon which the jury, properly instructed and acting reasonably, could find that the plaintiff was guilty of contributory negligence which was a cause of the L3/4 injury, it was for the jury to determine the extent to which the contributory negligence was a cause of that injury. Whether or not I agree with the jury’s finding of 70 per cent in relation to contributory negligence is irrelevant.
For completeness, I note that, having regard to the jury’s conclusion that the defendants were not negligent, the finding of 70 per cent contributory negligence is not irrational. It was open to the jury to find that, for a period of at least six years, the plaintiff continued to perform a variety of tasks on the farm throughout the year knowing that those tasks were virtually guaranteed to result in the demolition of his L3/4 disc, and that this conduct was a cause of the L3/4 injury. It was also open to the jury to conclude, as it did, that the defendants’ failure to eliminate or reduce as far as practicable the risks associated with one of the plaintiff’s tasks performed for about a third of the year on the tobacco farm – namely, working on the harvesting machine – was a cause of the L3/4 injury.
The jury could have concluded that, in the light of the specific and repeated warnings that the plaintiff received from Mr Brazenor and his deliberate choice to disregard that advice, the plaintiff was not only negligent in relation to his own safety, but he was reckless.[13] The jury could have concluded that the defendants did not have anywhere near the plaintiff’s knowledge of the risk of injury to his L3/4 disc or of the nature of the tasks on the farm that could contribute to damage to the L3/4 disc, and that any breach by the defendants of the Regulations did not involve any negligence on their part. If the jury made findings along these lines, then it was open to it to find that the plaintiff’s contributory negligence was causally more significant than the defendants’ breach of the Regulations in relation to the L3/4 injury.
[13]In cross-examination, in response to the question, ‘So despite this clear message from Mr Brazenor, you said, “Hang it, I want to continue to work on the farm, don't care”?’, the plaintiff replied, ‘That's right’.
It follows from the above discussion that the plaintiff has not established any of the grounds upon which he applied for judgment notwithstanding the jury’s verdict of contributory negligence.
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