Pasqualotto v Pasqualotto (No 3)

[2014] VSC 26

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:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 & 12 NOVEMBER 2013
DATE OF JUDGMENT:	12 FEBRUARY 2014
CASE MAY BE CITED AS:	PASQUALOTTO v PASQUALOTTO (No 3)
MEDIUM NEUTRAL CITATION:	[2014] VSC 26

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PERSONAL INJURY – negligence – breach of statutory duty – contributory negligence – plaintiff injured back while employed by defendants (his parents) on family farm – plaintiff had clear medical advice not to work on farm due to pre-existing back condition – defendants had knowledge of plaintiff’s condition and medical advice – plaintiff directed by first defendant to continue working at harvest time despite complaining of bad back and requesting rest-break – proportionate contribution of parties to injury – whether plaintiff guilty of contributory negligence – independent relevance of breach of statutory duty – Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic) reg 15, Occupational Health and Safety(Plant) Regulations 1995 (Vic) reg 704.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr R Stanley QC with Mr A Ingram	Slater & Gordon Lawyers
For the defendants	Mr P Jens with Mr J Goetz	Wisewould Mahony Lawyers

HIS HONOUR:

Introduction

1. Adam Pasqualotto is the adult son of Renato (Rene) and Lili Pasqualotto.  After seriously injuring his back in the course of his employment by them on the family farm on 17 March 2005, he issued a proceeding alleging negligence and breach of statutory duty.  The defendants denied liability and in the alternative pleaded contributory negligence.

1. The case was tried before Kyrou J and a jury of six.  His Honour formulated five questions by which the jury gave its verdict.  The questions and answers given by the jury were as follows:

(1)       was there negligence on the part of the defendants which was a cause of the plaintiff’s injuries? 

Answer:        No 

(2)       was there a breach of statutory duty on the part of the defendants which was a cause of the plaintiff’s injuries?

Answer:         Yes 

(3)       if yes to questions (1) or (2), was there contributory negligence on the part of the plaintiff which was a cause of his injuries? 

Answer:        Yes 

(4)       if yes to question (3), by what percentage is it just and equitable that the damages recoverable by the plaintiff should be reduced having regard to his own share of responsibility for his injuries? 

Answer:         70 per cent 

(5)       if yes to questions (1) or (2), what is a fair and reasonable sum to compensate the plaintiff for his past and future pain and suffering including loss of enjoyment of life and his past and future loss of earning capacity? 

Answer:         Pain and suffering damages $400,000

Loss of earning capacity damages $444,067

1. Pursuant to this verdict, judgment was entered in favour of the plaintiff for $236,287.50, being the amount awarded by the jury less compensation payments of $56,442, reduced by 70 per cent.  The plaintiff was not awarded costs because he failed to achieve 90 per cent of a statutory offer.[1]

   [1]It was made by the defendants under s 134AB(12)(b) of the Accident Compensation Act 1985 (Vic).

1. The plaintiff’s application for judgment to be entered wholly in his favour despite the verdict of the jury was dismissed by Kyrou J.[2]

   [2]Pasqualotto v Pasqualotto [2011] VSC 550 (27 October 2011).

1. The plaintiff’s appeal against the verdict of the jury was upheld (by majority) by the Court of Appeal.[3]  Osborn JA (Tate JA agreeing, Whelan JA dissenting) held that, on the evidence, the jury were bound to find that the defendants had been negligent.  The court set aside the jury’s answer of ‘no’ to question (1) and replaced it with the answer ‘yes’.  It remitted questions (3) and (4) for reconsideration according to law.  It did not disturb the answers given by the jury to questions (2) and (5).

   [3]Pasqualotto v Pasqualotto [2013] VSCA 21 (19 February 2013).

1. Having directed that the remitted proceeding should be tried before a judge alone,[4] I must now determine the answers to remitted question (3) and (4).  On the basis that the defendants were negligent and breached their statutory duty towards the plaintiff, I must therefore determine whether any contributory negligence on the part of the plaintiff was a cause of his injuries and, if so, what the proportionate contribution was.  My judgment on those matters will determine what award should be made in favour of the plaintiff, having regard to the damages specified by the jury.

   [4]Pasqualotto v Pasqualotto (No 2) [2013] VSC 608 (8 November 2013).

1. In determining these questions, account must be taken of the course of the proceedings to date, the evidence that was given in the trial before Kyrou J, the findings of the jury and the judgment of the Court of Appeal.  I must also take into account additional evidence given before me by the applicant’s mother (the second defendant).  To those matters I now turn.

Procedural history

Original trial

1. The proceeding was initiated by a writ  accompanied by a statement of claim.  Pursuant to an order made by Kyrou J, the plaintiff filed an amended statement of claim.  It alleged against the defendants negligence, breach of statutory duty under the Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic) and breach of statutory duty under the Occupational Health and Safety(Plant) Regulations 1995 (Vic). All of the claims arose out of the employment relationship between the plaintiff and the defendants.

1. The trial began on 6 October 2011. The negligence and breach of statutory duty claims were both maintained throughout. After 12 days of hearing, the jury returned its verdict on 25 October 2011. As we have seen, it found that the defendants had not been negligent but had breached their statutory duties. The relevant duties were those specified in reg 15 of the Occupational Health and Safety (Manual Handling) Regulations (duty of employer to undertake control of risk) and reg 704 of the Occupational Health and Safety(Plant) Regulations (also duty of employer to undertake control of risk).

1. On the day of the verdict and after the jury was discharged, the plaintiff applied for an order that its finding of contributory negligence be set aside and for judgment to be entered in his favour notwithstanding the  verdict, on three grounds.  The first was that the finding of contributory negligence was not open on the evidence because the plaintiff did not contribute to the defendants’ breach of statutory duty.  The second was that, as the injury occurred while the plaintiff was performing work in accordance with a specific direction from the first defendant, his conduct was not capable in law of amounting to contributory negligence.  The third was that the quantum of the contributory negligence was not open on the evidence.

1. Kyrou J ruled against the plaintiff’s application on 26 October 2011, publishing reasons the following day.  His Honour held that the first ground was  ‘misconceived as a matter of law’.[5]  In so deciding, he said:

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 [his] injury.[6]

[5]Pasqualotto v Pasqualotto [2011] VSC 550 (27 October 2011) [24].

[6]Ibid [28].

1. With respect, I agree with this statement.  That the defendants breached their statutory duties without any contribution on the part of the plaintiff will bear upon my proportionate contribution assessment, as will my conclusion (see below) that he did fail to take reasonable care for his own safety.

1. On the second ground, Kyrou J held that the plaintiff had misunderstood the defendants’ case.  They impugned both his conduct on 17 March 2005 and also his continuous conduct over several years leading up to that day in continuing to do farm work despite medical advice to the contrary.  This too will be significant in the assessment of the plaintiff’s contributory negligence and its contribution to his injuries.

1. I need not refer to the third ground as it has been overtaken by the judgment of the Court of Appeal.

Appeal

1. On 17 November 2011, the plaintiff[7] filed a notice of appeal.  It specified 12 grounds.  The first was that the jury’s finding that there had been no negligence on the part of the defendants was not open on the evidence.  As this ground was treated as dispositive by the Court of Appeal, I will not refer to the others. 

[7]The Court of Appeal judgment refers to Adam Pasqualotto as ‘the appellant’ and to Renato Pasqualotto and Lili Pasqualotto as ‘the respondents’.

1. Osborn JA (with whom Tate JA agreed) applied this statement of principle:

The duty of care that an employer owes to an employee may vary according to the particular susceptibility of an employee to injury.  If the employer knows that the employee has a predisposition to injury then the employer must take special precautions to avoid that injury. [8]

His Honour then found that the order given by the first defendant to the plaintiff to keep working was one that ‘no reasonably prudent employer could have given’.  He went on to say that ‘[t]he critical enquiry is whether, at the time the order was given, it foreseeably subjected the [plaintiff] to a risk of avoidable injury.  In my view, it is plain that it did’.

[8]Pasqualotto v Pasqualotto [2013] VSCA 21 (19 February 2013) [19] (footnote omitted).

1. In light of the difficulty in overturning a jury’s verdict,[9] Osborn JA stated that it was necessary to ‘take the best view of [the evidence] from the [defendants’] point of view consistent with the jury’s verdicts’.  However, even on that approach, his Honour found that the evidence ‘demonstrated at least the following’:

   [9]See Butcher v Australian Tartaric Products Pty Ltd [2009] VSCA 303 (18 December 2009) (Ashley JA); John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 (Gleeson CJ, McHugh, Kirby, Callinan and Heydon JJ).

·     the [plaintiff] suffered injury to his back on 17 March 2005 when he was required to continue working after complaining of back pain

·     the [defendants] knew that the [plaintiff] had previously suffered serious injury to his back and was susceptible to further injury, and had modified his duties as a result

·     picking tobacco from the harvester was a 12 hour a day job which required the [plaintiff] to continually bend forward and twist from a seated position

·     no risk assessment had been carried out to see whether the [plaintiff] was capable of safely performing the picking task

·     the [defendants] knew that picking had the capacity to cause the [plaintiff] back pain, because they had refused to replace his seat upon the harvester when he requested that this be done to reduce pain in his back

·     the [defendants] had previously adopted a practice of allowing the [plaintiff] to rest when he experienced back pain during work other than picking tobacco

·     the [plaintiff’s] father was the boss on the farm and directed him to continue working on the harvest when he requested that he be permitted to stop because of back pain

·     the reason the [plaintiff’s] father refused his request was the need to maintain five workers upon the machine in order for it to operate at full capacity

1. In the proceeding before me, these findings were not challenged and I will treat them as correct.  

1. In relation to the issue of warnings provided by the plaintiff’s treating surgeon, Osborn JA stated that:

[A]lthough the [plaintiff] sought at trial to affix the [defendants] with personal knowledge of direct warnings given by Mr Brazenor to the [plaintiff] that he should not work upon his parents’ farm, the jury was not bound to be persuaded that the [plaintiff’s] mother received such warnings or that it was negligent of his parents to permit him to work on the farm at all after the double fusion he underwent to his lower spine in 1997.

Nevertheless, it does not follow that the jury was entitled to find that there was no negligence on the [defendants’] part in directing the [plaintiff] to keep working on 17 March 2005 when he requested to stop work because of pain in his back.[10]

[10]Pasqualotto v Pasqualotto [2013] VSCA 21 (19 February 2013) [24]-[25].

1. In relation to the issue of what the defendants knew about these warnings, I have the benefit of the additional evidence that was given by the plaintiff’s mother (see below).

1. The court rejected the submission of the plaintiff that the jury could not return a verdict of contributory negligence because he was working pursuant to a specific direction of the first defendant to continue working.    Questions (3) and (4) were remitted for reconsideration because of the connection between the negligence of the defendants on the one hand and proportionate liability on the other.

1. Osborn JA (Tate JA agreeing) discussed the issue of contributory negligence.  It will be necessary to take this discussion into account here.  Beginning with the basis on which the defendants had formulated their contributory negligence defence, his Honour said:

the primary basis on which contributory negligence was put was that the [plaintiff] was negligent in undertaking work upon his parents’ farm at all given the terms of Mr Brazenor’s warnings and advice.  It was also put that undertaking work involving bending and twisting was directly contrary to Mr Brazenor’s advice.[11]

[11]Ibid [66].

His Honour went on the say how the plaintiff might be found to have committed contributory negligence:

The [plaintiff] may relevantly be thought to have acted negligently either when [he] commenced working on his parents’ farm or when he commenced working as a picker as part of the harvesting team in 2005, or on the day he was injured, knowing that the work would be contrary to Mr Brazenor’s instructions because it involved bending and twisting his back.[12]

Rejecting the contention that the father’s direction to work precluded a finding of contributory negligence, his Honour said that the ‘direction was not one as to the manner of work[13] but simply its continuation’.[14]  He went on to say:

The contributory negligence is not alleged to have been constituted by a simultaneous contribution to the happening of the injury but by an anterior creation of the context in which the injury was caused.[15]

[12]Ibid.

[13]Cf Prestinenzi v Steel Tank & Piper Consolidated Pty Ltd [1981] VR 421, 437-8 (Kaye J).

[14]Pasqualotto v Pasqualotto [2013] VSCA 21 (19 February 2013) [67].

[15]Ibid [69].

1. Later in the judgment Osborn JA clarified a particular aspect of the basis upon which contributory negligence might be found against the plaintiff.  His Honour said that, besides establishing that the plaintiff had continued to work against Mr Brazenor’s strong advice, it was not also necessary for the defendants to establish that the injury to his L3/4 disk was caused gradually from 1997 to March 2005.[16]  It was sufficient for them to establish either that the defendant continued to work contrary to Mr Brazenor’s advice or that he undertook picking work on 17 March 2005 after Mr Brazenor had warned him in December 2000 not to undertake work which involved bending and twisting his back.[17]

   [16]Ibid [75]-[76].

   [17]Ibid [77].

1. I have already referred to the orders made by the Court of Appeal.  I can now go to the facts.

Fact and circumstances of case

1. The findings I make here are based on the evidence give at the trial before Kyrou J, the verdict of the jury, the judgment of Osborn JA (Tate JA agreeing) in the Court of Appeal and the evidence given in the trial before me, including the medical evidence in relation to the plaintiff’s back condition given in the trial before Kyrou J (exhibit 2) which I admit over the plaintiff’s objections.

1. The defendants operated a tobacco farm on their property in Myrtleford from 1975 until 2006.  From 1975 to 1990, the first defendant owned it jointly with his parents.  In 1990, the defendants became the owners in their own right.  They grew, harvested and cured tobacco for sale to tobacco companies.  It was the family business.  The first defendant ‘ran the show’ while the second defendant looked after the books and assisted with the farm’s day-to-day operations.  The plaintiff and his younger brother had both worked on the farm since they were children.  There was an understanding within the family that the plaintiff and his brother would one day inherit the farm. 

1. At various points during the original trial, issue was made of the fact that the plaintiff’s earnings fluctuated from year to year, and seemed incongruent with the amount of work he was actually performing.  The relevance of this is very unclear.  In any event, the plaintiff satisfactorily explained that, depending on the state of the business in a given year, the money which would have been used to pay his wages was instead invested back into the farm (to pay for new machinery etc).   Due to the fact that the defendants paid most of the plaintiff’s expenses and the understanding that he would ultimately inherit the farm, this arrangement was not seen as disadvantageous.

1. In 1994, when the plaintiff was aged 18 years, he was involved in a serious car accident in Albury.  At that time, he had been undertaking a hospitality management course at the TAFE college in Wodonga.  As a result of the accident, the plaintiff suffered an injury to his lower back.  He suffered back pain ‘on and off’ for about three years and was treated by his general practitioner and other allied health professionals.  In November 1997, a Dr Levick in Brunswick referred the plaintiff to Mr Graeme Brazenor, a neurosurgeon.  Mr Brazenor is based in Melbourne. 

1. After seeing the plaintiff on a number of occasions, Mr Brazenor admitted him to the Epworth Hospital for two weeks of complete bed rest.  After that hospital stay, the plaintiff returned home to Myrtleford under instructions to rest and walk for short periods throughout the day

1. However, after three or four days he was in so much pain that he was admitted to hospital in Myrtleford and then transported to the Epworth by air ambulance.   Mr Brazenor performed a two-level fusion operation on the L4/L5 and L5/S1 disks of the plaintiff’s spine on 18 December 1997.  He was then aged 21 years or so.

1. Following the operation, the plaintiff, who had been living in Melbourne during 1996 and 1997 while undertaking an aircraft mechanic apprenticeship at Qantas, moved back to the family farm.  He convalesced for a period of 12 months and then decided not to return to his apprenticeship, despite the willingness of Qantas to have him back.  He described having difficulty adapting to life in Melbourne and ‘at the end of the day all my intentions were one day probably pretty much after I finished the apprenticeship to move back to the farm and continue farming up in Myrtleford’.

1. During the trial before Kyrou J, the plaintiff stated that when he began work on the farm following his operation his spine felt ‘quite good’, but he was still cautious about not doing ‘silly things’.  He avoided tasks that involved lifting and bending.  The plaintiff also gave evidence that he and his parents had ‘informal discussions’ about the type of work he could do on the farm.  They agreed that he could work at his own pace and take rest breaks if needed.  The first defendant’s evidence confirmed that this was the approach taken.  The farm was described as a ‘sheltered workshop’ for the plaintiff and he agreed that he could not have worked on a farm not owned by his parents.

1. Harvesting was one of the heaviest tasks on the farm.  It was undertaken from January to May each year, and saw the family working 12-hour days.  At various points during the trial before Kyrou J, the plaintiff described the nature of the harvesting work.  According to those explanations, a crew of five pickers sat on a large harvesting machine that travelled down the rows of tobacco plants.  The picking itself involved bending and twisting to reach the leaves, plucking them from the plant and putting them in a bin located in front of the pickers.  The bin then travelled via a mechanism to the top level of the machine where two other workers would empty it into a larger bin.  During the trial before me, the second defendant gave evidence that it was ‘crucial’ that both of her sons were part of the picking crew.  That was because they were both experienced tobacco pickers and could supervise the casual workers. 

1. An older model of harvesting machine was used on the farm prior to 2000/2001.  That machine saw the pickers putting the picked leaves into a hessian bag which was lifted to the top of the machine for emptying.  The defendants purchased the new machine in order to reduce the amount the tobacco leaves which were handled, so as to minimise bruising and damage.  The first defendant oversaw the design and purchase of the new machine. 

1. In order to accommodate picking leaves at various heights along the tobacco plant, the pickers’ seats were adjustable.  They also could swivel slightly from left to right and had vinyl-covered foam cushions, which provided ‘very minimal’ cushioning.  An ergonomist, Mark Hennessy, prepared a report and gave evidence in court in relation to the farm as a workplace in general and, specifically, in relation to the harvesting machine.  He described the seats on the harvesting machine in largely the same way as the plaintiff – ‘cheap looking polypropylene moulded seats not dissimilar to those provided in school rooms and some waiting rooms’.

1. It is not clear at what stage after his operation the plaintiff returned to harvesting work, but it was in the early 2000s at the latest.  It was put to the second defendant that her son was back doing harvesting work by 2000.  She agreed.  Further, when questioned about his 2003 tax return, the plaintiff agreed that he had been doing ‘full on duties in the harvest and general farm work’ during that financial year.  When asked whether the activities he performed on the farm varied in the years from late 1998 to March 2005 (apart from the usual seasonal variations in work), the plaintiff stated ‘no, it was pretty much the same, same every year’.

1. The plaintiff gave evidence that the harvesting machine was not altered to take account of his bad back following the operation.  He stated that in early 2005 he discussed with the first defendant the idea of replacing one of the seats on the harvesting machine with a more comfortable one, but nothing came of the discussion.  The first defendant gave evidence that the replacement seat would have been too awkward and impractical for picking.  There was also a concern that, if the plaintiff got a new seat, all the other workers would want one too.  I do not thinks this counts as adequate consideration of a potential helpful and practical suggestion.

1. In relation to the plaintiff’s return to work after his first operation, both the plaintiff and the first defendant agreed there were no risk assessments performed on the manual handling tasks or the hazards associated with the harvesting machine.  None were conducted at any time later.

1. The plaintiff was cross-examined extensively on the issue of whether Mr Brazenor advised him not to work on the farm after his operation.  He was presented with a number of statements from Mr Brazenor from the period December 1998 to December 2000 to the effect that he had been warned against continuing his employment on the farm.  Counsel for the defence focussed on two warnings in particular.  It was put to the plaintiff that, on 9 February 2000, Mr Brazenor advised against ongoing work at the farm or any job involving repeated bending at the waist, repeated picking up of objects from the ground or lifting heavy weights.  In relation to this, the plaintiff stated ‘it was advice.  He didn’t tell me to stop’.  He didn’t say not to work there anymore’. Counsel also put to the plaintiff that, in December 2000, Mr Brazenor told him that he would ‘virtually guarantee demolition of one or more of the segments above the fusion block’ if he continued to work on the farm.  The plaintiff was presented with this statement a number of times.  At first, he said that he could not recall Mr Brazenor saying this.  However, he agreed with the proposition that he returned to work on the farm against Mr Brazenor’s advice.  Later, the plaintiff said ‘yeah, I understood what he said, but, um, I felt that I wanted to continue working on the farm.’  This evidence suggests that the plaintiff failed to take reasonable care of his own safety when he worked on the farm and in harvesting, but it does not absolve the defendants of their responsibilities under the common law and the occupational health and safety regulations as employers.

1. Mr Brazenor gave evidence that he warned the plaintiff about farm work (especially bending and lifting) at appointments on 2 December 1998, 14 April 1999, 9 February 2000, and 15 December 2000.  In relation to whether the second defendant was present for any of those appointments, Mr Brazenor stated that he could only find one reference in his records to her presence and that was on 16 May 2005.  He stated it was his habit to make a note of anyone who accompanies a patient to an appointment.

1. Giving evidence before me, the second defendant stated that she could not recall how many times she accompanied her son to his appointments with Mr Brazenor, but that it was more than once.   On one of those occasions, which was after the first operation but before the second, she recalled Mr Brazenor saying ‘to Adam he was not to work on the farm, but he was OK to drive a truck’.  She then stated that she discussed this matter with her husband and son.  I accept this evidence, which was not challenged by counsel for the defendants.

1. Evidence was presented during the trial before Kyrou J (and referred to during the trial before me) that the plaintiff’s general practitioner, Dr Leigh Bennie, advised him to have career counselling on 16 October 2001 in order to explore alternative career options because farming was no longer appropriate for him, physically speaking.       

1. During her evidence to me, the second defendant described working on her father’s tobacco farm as a child and consequently developing back problems when aged around 11 or 12 years.  Those problems continued into her adult life as she began operating her own tobacco farm and culminated in an operation to correct a bulging disc in her lower back in August 2001.  Following that operation, she was bedridden for six weeks.  The second defendant stated that she had performed harvesting work herself and found it ‘quite heavy and hard on the back’.  However, she allowed the plaintiff to perform the work notwithstanding his own back problems because ‘we needed Adam to help us.  Um I suppose we pressured him to help us and ah we just needed a family member to be down there all the time’.   The second defendant also stated that after her back operation in 2001, ‘we looked to Adam to do a lot more’.  This and the other evidence shows that the plaintiff was under some family pressure to work at the farm, but it does not absolve him of responsibility for taking reasonable care of his own safety.

1. The plaintiff met his now-wife, Ashleigh, during a six-week trip to Italy in 2004.  He travelled to the United States in February 2005 (ie before the incident) for a week in order to meet her family.  The plaintiff did not experience any problems with his back on either of these trips. 

1. The incident giving rise to the plaintiff’s injury occurred on 17 March 2005.  The plaintiff was then about 29 years of age.  At that time the harvest had been running for four or five weeks.  The plaintiff had not had any major problems with his back during that time.  He stated: ‘I don’t recall being, being in any pain leading up to that date apart from the, you know, just whatever I had always been suffering on and off from time to time’.  He also could not recall needing to take a rest break during the harvest period before 17 March 2005. 

1. It was put to the plaintiff in cross-examination that he reported to Dr Roger Briggs (his general practitioner at the Standish Street Medical Practice in Myrtleford) on the 17 May 2005 that there had been a ‘slow decline [in his back] over the past year’ and there was no triggering event.  The plaintiff stated that this was incorrect and, later, that he did not recall saying that to Dr Briggs.  The plaintiff was also presented with a workers’ compensation claim form he completed on 4 May 2005.  In response to the question on the form ‘date of injury/condition’, the plaintiff recorded 17 March 2005.  The following question on the form was ‘date you first noticed this injury/condition’ and in answer to that the plaintiff recorded ‘September 04’.  When questioned about that answer, he said ‘well, it wasn’t that specific injury, just the lower back – suffering lower back pain’.  The plaintiff also ticked the ‘yes’ box in relation to a question on the same form which asked ‘did your injury/condition arise gradually over a period of time?’.  In relation to that answer, the plaintiff said ‘well, prior to the 17^th, leading up to it, I was suffering minor back pain’. On this and other evidence (including the medical evidence in exhibit 2), the plaintiff’s back condition did gradually worsen over a period of time but the events of 17 March 2005 caused him to suffer a serious and (as found by the Court of Appeal) foreseeable and avoidable injury to his back.

1. Returning to 17 March 2005, the plaintiff described meeting the first defendant at the end of a run (of tobacco plants) in early-mid afternoon and asking him to take over his position on the harvesting machine because his back was hurting.  The first defendant’s task at the time of the request was to collect the bins of picked tobacco leaves from the harvesting machine at the end of each run and load them onto a trailer.  The first defendant refused the plaintiff’s request and asked him to complete another run.  The plaintiff gave evidence that ‘there were times where I would – or even my father would push me to, you know, do a little bit more work.  I was in a bit of pain and he’d try and push through it and, you know, keep going’.  The plaintiff did complete another run, which he estimated took an additional hour and a half.  As he continued picking, he noticed that his back was getting ‘quite painful’.  At the end of the run, the plaintiff was in a lot of pain.  He could not stand and had to roll off the machine on all fours.  The first defendant took the plaintiff home and the harvesting continued without him.  The second defendant was at home when the plaintiff returned.  In evidence before me, she said he was ‘in a lot of pain and couldn’t walk properly’ and that she had not seen him that bad before. 

1. When the first defendant was asked what his attitude was if the plaintiff requested a break, he said ‘when we started harvest, um, no – it was pretty hard.  You – you couldn’t take a break cos if you’re picking in five you, sort of, had to pick in five all day’.  Later, the first defendant stated that the reason why the harvesting machine needed to operate with five pickers was that ‘if you’re travelling in four you won’t have the tobacco to put in your barn and you can’t run the barn half full’.

1. The plaintiff described being in pain for ‘quite a few weeks’ after 17 March 2005.  A few days of bed rest did not alleviate the pain.  He saw Dr Briggs on 5 April 2005.  Dr Briggs’ clinical notes from that date stated:

Back playing up past three to four days.  He had not had an episode like this.  No radiation, no extension, very little lateral flexion and then suggested physio, he’s already made an appointment with Mr Brazenor. 

The plaintiff saw Mr Brazenor on 22 April 2005.  Mr Brazenor sent him to have a CT scan on 6 May 2005.  That scan revealed an injury to the L3/L4 section of his spine.  This section of the plaintiff’s spine is located directly above the sections fused in 1997. Mr Brazenor recommended massage and Pilates as treatment.  The plaintiff returned to Dr Briggs on 17 May 2005.[18]  Dr Briggs’ clinical notes from that date stated:

Back did not improve since last seen.  Did not attend physio, Brazenor suggested perfo [sic] not to.  Saw Brazenor yesterday.  Further MRI and CT done, one of the discs not too good.  Not to bend at all.  Do as much walking as possible.  Further review in three months.  May need disc replacement.  Is putting in a form for WorkCover.  Worked on parents farm over the past six years.  Stopped work for one and a half weeks before presented in April.  He says this is an exacerbation of a pre-existing injury.  Slow decline over the past year, no actual event appeared to trigger it.  Would do a few days work and it would get sore, then rest and it would improve.  He has not been able to do anything useful much over the past month.  Would like WorkCover certificate from 5 April.

[18]          In November 2005, another doctor at the Standish Street Medical Practice – Dr Leigh Bennie – replaced Dr Briggs as the plaintiff’s primary general practitioner. 

1. The plaintiff travelled to the United States in July 2005 to get married.  He described being in a lot of pain during the return flight from Los Angeles to Melbourne.  The plaintiff experienced worsening pain throughout 2006 and 2007.   He did not participate in the 2006 tobacco harvest, apart from ‘a little bit of tractor work on and off’ and maintenance work in the sheds.[19]

   [19]Due to tobacco companies indicating that they would not be purchasing Victorian tobacco any longer, the 2006 tobacco harvest was the last in Victoria.  The defendants now run beef cattle on the Myrtleford property.

1. The plaintiff saw Mr Brazenor again in late 2007, who recommended another fusion operation, this time for the L3/L4 section of the spine.  A second opinion from a Dr Hillier in Albury confirmed this recommendation.  Mr Brazenor performed a single-level fusion operation on 20 March 2008.   

Submissions of the parties

Plaintiff

1. Following Casey City Council v Kohn[20] and the cases cited therein, it was submitted for the plaintiff that the court had to compare both the culpability and the relative importance of the acts of the parties in causing injury to the plaintiff in the context of the whole of the circumstances.  Following Bankstown Foundry Pty Ltd v Braistina[21] and the cases cited therein, it was submitted that the conduct of the plaintiff had to be objectively assessed in the context of the finding that the defendants had breached their statutory duty and also had been negligent, that is to say, had breached their non-delegable duty of care towards the plaintiff as their employee.  Following McLean v Tedman,[22] it was submitted that the defendants’ obligation was not just to provide but to enforce a safe system of work. 

   [20][2006] VSCA 82 (19 April 2006) [33] (Chernov JA, Callaway JA and Habersberger AJA agreeing) (‘Casey City Council’).

   [21](1986) 160 CLR 301, 310 (Mason, Wilson and Dawson JJ) (‘Bankstown Foundry’).

   [22](1984) 155 CLR 306, 313 (Mason, Wilson, Brennan and Dawson JJ) (‘Mclean’).

1. It was submitted for the plaintiff that the assessment of his contributory negligence had to be approached on the basis of the decision of the Court of Appeal that the jury had found that he had suffered substantial injury on 17 March 2005.  While the principles establish that all of the circumstances had to be taken into account, the focus of the court had to be on the injury which occurred on that day and the comparable contributions of the parties in terms of culpability and cause in respect of that injury.

1. It was submitted that the plaintiff was required to work according to the defendants’ system of work and had no power to change it.  On the day of the injury, his only option was to work as directed or not to work at all.  Considered in all the circumstances, not working at all was not a real option.

1. The plaintiff submitted that the family relationship between him and the defendants should be taken into account in his favour.  The plaintiff was the eldest of two sons and had worked on the farm since childhood.  The family was close-knit and he had been raised on the farm.  It was his long-term ambition to work on the farm.  His intention and that of the defendants was that the two sons would take over and inherit the farm.  He intended to go back to the farm after finishing his Qantas apprenticeship.  That was where he wanted to be and where his parents wanted him to be.  It was expected of him.  This was not an ordinary employment situation. 

1. It was submitted that just as the plaintiff had been expected to work at the farm, he was also expected to work at harvesting time, which was the busiest time of the year.  The plaintiff was an experienced picker and getting good casual labour was not easy.  He was needed for the task.  Harvesting was best done with the two sons and others from around the town.  The plaintiff felt family pressure to continue working during harvesting time.  On the day concerned he felt family pressure to continue working despite the pain in his back.  All of this diminished his moral responsibility.  He was placed in an invidious position by the circumstances. 

1. The plaintiff submitted that this was not a case of inadvertence or inattentiveness on the part of an employee.  The defendants were really submitting that the plaintiff was guilty of contributory negligence in going back to work at the farm at all or, alternatively, in doing heavy work at all.  That case had not been made out. 

1. It was accepted on behalf of the plaintiff that Mr Brazenor had advised the plaintiff not to do any work at the farm.  This was unreal advice to give because of the plaintiff’s history and family circumstances.  He had lived and worked on the farm all his life.  He had been working there for some years after 1998, including doing harvesting work.  There was no real opportunity for the plaintiff simply to walk away from the farm and comply with Mr Brazenor’s literal advice. 

1. Nevertheless, it was accepted that failing to follow Mr Brazenor’s advice, particularly on the day when the injury occurred during harvesting work, did involve some small degree of culpability on the plaintiff’s part.  This was because the advice gave the plaintiff reason to know what might result from doing work of the specific kind which he did on the day.

1. It was accepted that the work arrangements between the plaintiff and the defendants were usually that the plaintiff could take breaks if he needed to.  On the day concerned he was not allowed to.  He was directed to work by his father.  The injury did not happen because the plaintiff disobeyed a direction to work or as to the manner of the work.  It occurred because he complied with the direction to work in the usual way which was dangerous in the circumstances. 

1. The plaintiff submitted that the defendants knew that it was dangerous for the plaintiff to do harvesting work and to continue to work after he requested a break.  They knew that the plaintiff should not be doing work involving heavy lifting and bending.  They knew that the harvesting work was the hardest job on the farm and that it involved lots of repetitive bending and twisting.  They knew that it was work involving a 12 hour day.  The evidence establishing such knowledge on the part of the defendants was referred to.  Reference was particularly made to concessions made by the plaintiff’s father under cross-examination and the evidence given before me by his mother. 

1. The plaintiff submitted in particular that the defendants knew of Mr Brazenor’s advice that the plaintiff should not be working on the farm and certainly should not be doing any heavy lifting or bending, including harvesting.  Reliance was placed upon the evidence of the plaintiff’s mother, who accompanied him to medical appointments with Mr Brazenor.  It was submitted that she would have discussed this advice with her husband.  By reason of what the defendants knew, they were the more culpable parties in terms of the responsibility for the injury which happened.

1. As to cause, it was submitted that the plaintiff contributed none.  The injury occurred by reason of him working on 17 March 2005.  He asked to stop and was denied permission.  The defendants were negligent in permitting him to do harvesting work for that day and/or for directing him to continue when he asked for a break.  Either or a combination of both of these two things were the negligent cause of the injury in which he played no contributing part.

1. It was submitted that the defendants breach of statutory duty was significant.  It was constituted by failing to conduct any risk assessment.  Such an assessment would have resulted in avoidance or mitigation of the risk of injuring the plaintiff.  This was relevant both to culpability and causation.  The plaintiff made no contribution to this breach of statutory duty.

1. The plaintiff submitted that the court should distinguish between the work which he did on 17 March 2005 up to the time when he requested the break and the work which he did on that day under positive direction to continue thereafter.  His condition considerably worsened in the period of one-and-a-half hours which followed the direction.  While there was no medical evidence establishing what the precise effect of working in that period was, the court should find that working in that period tipped him over the edge.  He could not walk at the end of that period and had to be driven home.  If this is accepted, it should be found that the plaintiff made no cause or contribution to the injury as it resulted from the direction to continue which was given by his employer.

1. It was accepted for the plaintiff that the decision by the court that the plaintiff had made some causal contribution to the injury could be made if the court found, against the plaintiff’s submissions, that the injury had gradually resulted from the plaintiff’s failure to follow Mr Brazenor’s advice five or six years earlier not to work at the farm at all.  Even if the court so found, the degree of his causal responsibility would be relatively small when compared with that of the defendants. 

1. In the plaintiff’s submission, his negligence contributed no more than 15 to 20 per centum to the cause of the injury.

Defendants

1. It was submitted for the defendants that the Court of Appeal decided that there had been negligence but it did not decide that the finding of the jury of contributory negligence against the plaintiff of 70 per centum was unreasonable.  The court as presently constituted was now required to apportion contribution taking into account the defendants’ negligence for breach of duty at common law.  The addition of that element should not greatly alter the assessment. 

1. The defendants submitted that this was a most unusual case.  It was not a case about an employee failing to follow a safe system of work.  It was a case about an employee failing to follow very clear medical advice.  Mr Brazenor could not have made it clearer to the plaintiff that he should not be working at the farm.  The fact that Mr Brazenor had given such strong advice meant that the plaintiff was the major contributor to the injury.  The plaintiff’s contributory negligence is separate from his employment.  It was constituted by his disregarding of the medical advice. 

1. The defendants relied upon the plaintiff’s evidence that he had decided to work on the farm despite Mr Brazenor’s advice.  The plaintiff was told that working on the farm would literally obliterate the spinal fusion.  He did work on the farm and the fusion was obliterated.  The plaintiff was an adult man at the time.  He alone was responsible for that decision.

1. It was accepted that, prior to the injury arising, the plaintiff’s mother was present on at least one occasion when Mr Brazenor gave this advice to the plaintiff.  In the defendants’ submission, this did not absolve the plaintiff from the greater share of contributory responsibility.

1. The defendants submitted that the court should not find that the plaintiff had returned to work on the farm at the request of the defendants.  The plaintiff’s answers to questions under cross-examination showed that he wanted to go back to the farm despite Mr Brazenor’s advice, and he did.  The advice given by Mr Brazenor was expressed in the strongest possible terms.  The plaintiff knew full well what the risks were and he must carry the greater responsibility for the eventuation of those risks.

1. It was submitted that, in the present case, there was not just one starting point, being the defendants’ negligence.  There was an equally important initial consideration, being the plaintiff’s failure to follow clear and strong medical advice.

1. The defendants submitted that the plaintiff was received back into the farm working environment on a very controlled basis.  Full allowance was made for his injuries.  For the most part, he worked in a kind of sheltered workshop.  His parents loved him and allowed him to do light work at his own pace.  He had a high degree of personal responsibility for the content and pace of his work. 

1. It was submitted that the plaintiff worked on the farm in his own interests.  He wanted to come back to the farm and live his life there.  A substantial family home was built for him on the farm.  He bought an investment property using income generated by the farm.  He would inherit the farm in due course.  He continued to work on the farm between 2000 and 2005 despite experiencing back troubles from time-to-time, for which he sought medical attention.  The financial and other advantages of being on the farm were relevant to assessing the degree of his moral contribution to the injury.

1. The defendants referred to Fassbender v HW & MTA Bohlman[23] as an example of a case in which a finding of a contribution of 70 per centum against an employee had been upheld.  They accepted that the principles stated in Podrebersek v Australian Iron and Steel Pty Ltd[24] were applicable.

   [23][2010] VSCA 204 (20 August 2010) [40], [50] (Warren CJ, Nettle JA and Emerton AJA) (‘Fassbender’).

   [24](1985) 59 ALJR 492, 493-4 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) (‘Podrebersek’).

1. It was submitted that the evidence did not permit a finding to be made as to what precisely was the medical impact of the plaintiff working for one-and-a-half hours after being refused a break.  Davies v Adelaide Chemical and Fertiliser Co Ltd[25] should be distinguished.  The present case is not one in which the employee had been injured when applying a long-standing but unsafe method of work.  Here the worker was injured when he was working with a bad back against medical advice.  The plaintiff could have refused to continue working on the day if he really needed to stop.  He was not facing docked wages or dismissal. 

   [25](1946) 74 CLR 541, 551 (Dixon J) (‘Davies’).

1. As to breach of statutory duty, the defendants submitted that this should not be added to the breach of duty at common law so as to weigh more heavily against the defendants.  The breach of statutory duty which the jury found must have been ‘almost a technical breach’ as it was a failure to do a risk assessment on a family farm. 

1. In the defendants’ submission, the plaintiff’s contribution was in the region of 60 per centum. 

Legal principles

1. There are two issues to be determined.  The first is whether the plaintiff contributed by his own negligence to the injury which occurred during the course of his employment with the defendants on 17 March 2005.  If the answer to that question is yes, it is necessary to assess the relative proportionate contribution to the injury of the negligence of the plaintiff and the negligence and breach of statutory duty of the defendants.  The two issues are inter-related in certain respects.

1. When determining whether a worker has been guilty of contributory negligence, the test to be applied is whether he or she has taken such reasonable care for his or her own safety as could be expected from an ordinary worker in the circumstances.[26]  As was held in Bankstown Foundry by Mason, Wilson and Dawson JJ, ‘[a]worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to a risk of injury’.[27]  The determination of this issue is to be approached in an objective manner by reference to all of the circumstances.  According to Warren CJ and Emerton AJA (Nettle JA agreeing) in Fassbender,[28] the court has to determine whether the worker ‘did something that a reasonably careful person would not have done in the circumstances or whether he failed to do something which a reasonably careful person would have done in the circumstances’.[29]

   [26]Kakouris v Gibbs Burge & Co Pty Ltd [1970] VR 502, 506 (Winneke CJ, Pape and Adam JJ) (‘Kakouris’);  Judd v Portland & District Hospital (Unreported, Supreme Court of Victoria, Court of Appeal, Tadgell JA (Brooking and JD Phillips JJA agreeing), 8 August 1995);  Fassbender [2010] VSCA 204 (20 August 2010) [43] (Warren CJ, Nettle JA and Emerton AJA agreeing).

   [27](1986) 160 CLR 301, 310.

   [28][2010] VSCA 204 (20 August 2010).

   [29]Ibid [43].

1. In the leading case of McLean,[30] Mason, Wilson, Brennan and Dawson JJ emphasised that an important consideration in this regard is the primary duty of the employer at common law to take reasonable care of the employee by providing and enforcing a safe system of work.  That duty of care extends to the taking of reasonable steps by the employer to ensure that the employee is not injured through his or her own inadvertence.[31]  When defining the scope of this duty, the modern emphasis is on accident prevention on the part of employers.[32]  The issue of contributory negligence on the part of an employee is ‘now to be approached on [that] footing’.[33]   By parity of reasoning, I think the same approach is required where the employer’s breach is of a statutory duty.

   [30](1984) 155 CLR 306, 313, 315.

   [31]Ibid 312.

   [32]Ibid 313.

   [33]Ibid 315; see also Podrebersek (1985) 59 ALJR 492, 493 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ); Bankstown Foundry (1986) 160 CLR 301, 310 (Mason, Wilson and Dawson JJ).

1. It is also established that, when assessing whether the worker has observed his or her duty to take reasonable care, account is taken of ‘the context of the distractions, pressure and the like to which the [worker] is subjected in the course of the work’.[34]  The question is whether, in the circumstances and under the conditions of the actual work, ‘the [worker’s] conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence’.[35]  A worker is not held responsible in contributory negligence for ‘performing his duties according to his habitual and long-standing practice for which he had the apparent [or] actual approval of the [employer] who treated it as part of his ordinary work’.[36]

   [34]Tramontin v Jayform Pty Ltd (Unreported, Supreme Court of Queensland, Court of Appeal, Fitzgerald P, Pinkus and Derrington JJ, 15 March 1993) 4.

   [35]Podrebersek (1985) 59 ALJR 492, 493; see also Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202 (12 August 2010) [29] (Warren CJ, Neave JA and Beach AJA) (‘Mayhew’).

   [36]Davies (1946) 74 CLR 541, 551-2 (Dixon J); see also Mayhew [2010] VSCA 202 (12 August 2010) [31] (Warren CJ, Neave JA and Beach AJA).

1. It has been stressed that, as with the law of negligence in the employment context generally,[37] the wisdom of hindsight plays no part in whether a worker has been guilty of contributory negligence.  In Kiriwellage v Best & Less Pty Ltd[38] Osborn and Beach JJA said with both clarity and brevity that ‘the issue of contributory negligence must be looked at prospectively and not retrospectively’. 

   [37]Moloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 (Barwick CJ); Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330, 337-8 [18] (Gummow J).

   [38][2013] VSCA 355 (5 December 2013) [20].

1. Where the injury was caused by the negligence of both the employer and the employee and it is necessary to apportion responsibility, the test to be applied is that stated by Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in Podrebersek:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man[39] … and of the relative importance of the acts of the parties in causing the damage[40] … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.  The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.[41]

Their Honours emphasised the evaluative nature of this task:[42]

A finding on a question of apportionment is a finding upon a ‘question , not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations.  It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’.[43]

[39]Pennington v Norris (1956) 96 CLR 10, 16 (Dixon CJ, Webb, Fullagar and Kitto JJ) (‘Pennington’).

[40]Stapley v Gypsum Mines Ltd [1953] AC 663, 682 (Lord Oaksey, Lord Reid and Lord Tucker, Lord Porter and Lord Asquith dissenting) (‘Stapley’); Smith v McIntyre [1958] Tas SR 36, 42-9 (Burbury CJ, Gibson and Crisp JJ) (‘Smith’); Broadhurst v Millman [1976] VR 208, 219 (Gowans, Menhennitt and Dunn JJ) (‘Broadhurst’).

[41](1985) 59 ALJR 492, 494; approved in Bankstown Foundry (1986) 160 CLR 301, 311 (Mason, Wilson and Dawson JJ).

[42](1985) 59 ALJR 492, 493-4.

[43]British Fame (Owners) v Macgregor (Owners) [1943] AC 197, 201 (Viscount Simon LC, Lord Atkin, Lord Thankerton, Lord Wright and Lord Porter).

1. These principles have been frequently applied in this court.[44]  In Casey City Council,[45] Chernov JA (Callaway JA and Habersberger AJA agreeing) gave this description of the task:

‘It requires a comparison of both culpability and the relative importance of the acts of the parties in causing damage, requiring the whole of the relevant conduct of each of the negligent parties to be subject to comparative examination.  The task involves matters of proportion, balance and relative emphasis and is, in this regard, similar to the exercise of a broad discretion’.[46]

[44]See Casey City Council [2006] VSCA 82 (19 April 2006) [33] (Chernov JA, Callaway JA and Habersberger AJA agreeing); Mayhew [2010] VSCA 202 (12 August 2010) [41] (Warren CJ, Neave JA and Beach AJA); Fassbender [2010] VSCA 204 (20 August 2010) [40], [51] (Warren CJ and Emerton AJA, Nettle JA agreeing); Pasqualotto v Pasqualotto [2013] VSCA 21 (19 February 2013) [64] (Osborn JA, Tate JA agreeing).

[45]Casey City Council [2006] VSCA 82 (19 April 2006).

[46]Ibid [33].

1. It can be seen that what is required is a consideration of both the culpability of the departure from the standard of reasonable care and the relative importance of the acts of the parties which caused the damage.  It is accepted that there may be ‘some merger or overlap of the questions of culpability and importance of the wrongful acts to the injury’.[47]  In Moore v Scolaro’s Concrete Constructions Pty Ltd (In liq),[48] Callaway JA (Buchanan JA and Dodds-Streeton AJA agreeing) held that an apportionment which has been ‘driven by causation’[49] will not be in conformity with the principles. 

   [47]Alcoa Portland Aluminium Pty Ltd v Husson & Anor (2007) 18 VR 112, 137 [87] (Chernov JA, Neave JA agreeing).

   [48](2004) Aust Torts Reports ¶81-767.

   [49]Ibid [15].

1. As to the concept of culpability which is applied, it was held by Dixon CJ, Webb, Fullagar and Kitto JJ in Pennington v Norris[50] that it is not ‘moral blameworthiness but [the] degree of departure from the standard of care of the reasonable man’.[51]  In Goddard Elliott v Fritsch[52] I drew attention to the fact that Podrebersek drew on Pennington.[53]  There the appeal was allowed because the apportionment did not take sufficient account of negligence of the defendant which was ‘in a high degree more culpable, more gross, than that of the plaintiff’.[54] 

   [50](1956) 96 CLR 10.

   [51]Ibid 16; see further Kakouris [1970] VR 502, 512 (Winneke CJ, Pape and Adam JJ); Broadhurst v Millman [1976] VR 208, 219 (Gowans and Menhennitt JJ, Dunn J agreeing).

   [52][2012] VSC 97 (14 March 2012) [1117].

   [53](1956) 96 CLR 10 (Dixon CJ, Webb, Fullagar and Kitto JJ).

   [54]Ibid 16 (Dixon CJ, Webb, Fullagar and Kitto JJ).

1. Podrebersek also referred with approval to Smith  v McIntyre[55] where the judgment of Burbury CJ, Gibson and Crisp JJ contains an extensive analysis of the culpability aspect of the principle.  By reference to the authorities, their Honours identified the considerations which might influence a finding of apportionment as including the party who created the hazard which ultimately caused the injury,[56] the age, role and position of any party who caused the injury[57] and whether a party had failed to take an obvious and available last opportunity to avoid the injury.[58] 

   [55][1958] Tas SR 36.

   [56]Ibid 47-50, citing AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100, 103 (Dixon CJ, Webb and Kitto JJ); McFarlane v Neshausen [1952] NZLR 292, 295 (Hutchison J).

   [57][1958] Tas SR 36, 46, citing Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291, 326 (Lord Denning).

   [58][1958] Tas SR 36, 48.

1. Concluding their analysis, Burbury CJ, Gibson and Crisp JJ held that a combined consideration of all the circumstances was required:

We think the true view is that there is no dichotomy between culpability and causation.  A comparison of degrees of fault between two negligent actors requires an examination of the whole conduct of each in relation to the circumstances of the accident.  The degree of departure from the standard of the reasonable man on the part of either should not be assessed without considering the extent to which that departure was a contributing cause of the accident.  A variety of factors may enter into a judicial determination as to which party has the greater share in the responsibility for the accident.  There is no single touchstone of responsibility.  In one case the emphasis may be on comparative degrees of negligent conduct: it may be found that the negligence of one party is much more culpable than that of another – approaching the criminal standard of negligence – as against slight negligence on the part of the other.  In another case the emphasis may be on the greater importance to be attached to the conduct of one party as a causative factor.  In another case there may be little to distinguish between the conduct of each party in his departure from the standard of the reasonable man, but the negligence of one party may have brought about a hazardous situation and the negligence of the other party may have consisted in failing to avoid the consequences of that negligence.  It is the whole conduct of each negligent actor in relation to the circumstances of the accident which must be subjected to comparative examination.[59]

[59]Ibid 46-7.

1. In relation to the relative importance of the acts of the parties, Podrebersek cited Stapley.[60]  In that case, the much greater immediate contribution to the cause of the damage of the acts of the negligent party brought onto it a much greater responsibility for the loss.[61]

   [60][1953] AC 663 (Lord Oaksey, Lord Reid and Lord Tucker, Lord Porter and Lord Asquith dissenting).

   [61]Ibid 682 (Lord Reid).

1. Upon the verdict of the jury and the order of the Court of Appeal, the defendants breached their duty of care under the common law and their statutory duty.

1. As we have seen, the statutory duties concerned were imposed by reg 15 of the Occupational Health and Safety (Manual Handling) Regulations and reg 704 of the Occupational Health and Safety (Plant) Regulations. 

1. As relevant to this case, reg 15(1)(b) of the former Regulations required the employer to ‘ensure that any risk of a musculoskeletal disorder affecting an employee … is reduced so far as is practicable’.[62]   On the day of the injury (17 March 2005), the plaintiff was at risk of such a disorder. As decided by Kyrou J,[63] the jury may be taken to have decided that the defendants breached this duty (and/or the other duty) by failing to reduce the risk of such a disorder affecting the plaintiff so far as was practicable.

   [62]In reg 5, ‘musculoskeletal disorder’ is defined to mean:

   an injury, illness or disease that arises in whole or in part from manual handling in the workplace, whether occurring suddenly or over a prolonged period of time, but does not include an injury, illness or disease which is caused by crushing, entrapment or cut resulting primarily from the mechanical operation of plant;

   ‘Manual handling’ is defined to mean:

   any activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise move, hold or restrain any object;

   ‘Risk’ is defined to mean:

   the likelihood of an injury, illness or disease occurring due to exposure to a hazard.

   [63]Pasqualotto v Pasqualotto [2011] VSC 550 (27 October 2011) [16].

1. As relevant to this case, reg 704(1)(b) of the latter Regulations required the employer to ‘ensure that any risk associated with plant and associated systems of work, including installation, erection, commissioning and use of plant … is reduced so far as is practicable’. ‘Risk’ is defined in reg 105 to mean ‘the likelihood of injury or illness arising from exposure to any hazard’. By reg 106(1)(b), the Regulations apply to ‘plant that lifts or moves people or materials’. Also as decided by Kyrou J,[64] the jury may be taken to have decided that the defendants breached this duty (and/or the other duty) by failing to reduce the risk of the plaintiff suffering an injury arising from the exposure to the harvesting machine and its associated system of work so far as is practicable.

   [64]Ibid.

1. The terms of the regulations require employers to take practicable steps to reduce risk of injury to employees.  In the words of Kyrou J, ‘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’ of injury.[65]  His Honour’s point was based on the premise, with which I agree, that the obligations imposed under the Regulations apply according to their terms and are not affected by the law of negligence.  That is not to suggest that actual possession by an employer of particular knowledge about an employee’s susceptibility to injury may never be relevant to what is required to fulfil those obligations. 

   [65]Ibid.

1. In Kakouris v Gibbs Burge & Co Pty Ltd,[66] the plaintiff worker sued in negligence and breach of statutory duty.  The defendant employer denied liability and in the alternative relied on contributory negligence.  Similarly to the present case, the jury dismissed the negligence claim, upheld the breach of statutory duty claim and reduced the damages by 60 per cent on account of the worker’s contributory negligence. 

   [66][1970] VR 502 (Winneke CJ, Pape and Adam JJ).

1. Dismissing the appeal, it was held by Winneke CJ, Pape and Adam JJ that contributory negligence was available to the defendant employer whether the worker’s cause of action was based on common law damages or breach of statutory duty.[67]  In their Honour’s view:

There is … but one concept of contributory negligence, namely, a lack of reasonable care for the plaintiff’s own safety which contributes to his injuries, but whether the plaintiff’s conduct satisfied this definition must be determined in each case as a question of fact upon the circumstances of each case, which in industrial accident cases, whether based on common law negligence or breach of statutory duty, include the possibility of momentary inadvertence or thoughtlessness of a worker performing a routine task.[68]

When the High Court dismissed the appeal, it expressed agreement with that conclusion.[69] 

[67]Ibid 508 (overruling Mannu v Ford Motor Co of Australia Pty Ltd [1962] VR 464 (Lowe J)).

[68]Ibid.

[69]Kakouris v Gibbs Burge & Co Pty Ltd (1970) 44 ALJR 384, 385 (Barwick CJ, McTiernan, Windeyer, Owen and Gibbs JJ agreeing).

1. Applying the proportionate contribution principles later affirmed in Podrebersek,[70] Winneke CJ, Pape and Adam JJ also refused to interfere with the jury’s assessment of damages as reduced for the worker’s contributory negligence.[71]  In relation to the culpability and importance of the relevant causal acts, the court took into account the nature of the breach of the statutory duty of the defendant (among other things).[72]

   [70](1985) 59 ALJR 492, 494 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ).

   [71][1970] VR 502, 512.

   [72]Ibid.

1. The High Court also dismissed the appeal in respect of the contribution issue.  In doing so, Barwick CJ said:

I would simply add, by way of emphasis, that in my opinion nothing in the decisions of this Court or in those of the House of Lords lends any support to the view that, in a case where fault of the plaintiff may affect the apportionment of damages otherwise recoverable by the plaintiff for a breach by the defendant of a statutory obligation to fence or guard dangerous machinery, a workman need have taken less care for his own safety because the machine was unguarded than he would have been required to take in circumstances where his employer was not under a statutory duty to provide a guard for the machine.[73]

I do not see this statement as being inconsistent with taking into account the nature of the defendant’s breach of statutory duty as one of the relevant circumstances, as did Winneke CJ, Pape and Adam JJ.

[73]Kakouris v GibbsBurge & Co Pty Ltd (1970) 44 ALJR 384, 385 (McTiernan, Windeyer, Owen and Gibbs JJ agreeing).

1. While it is thereby established that an employer who is sued for breach of statutory duty can rely on the employee’s negligence, there is authority for the view that contributory negligence is more difficult for the employer to establish in such a case.  In Rigter v JC Taylor Constructions Pty Ltd,[74] the injured worker sued the employer in the Supreme Court of South Australian both at common law and for breach of statutory duty.  Zelling J upheld both claims.  When dismissing the employer’s reliance on contributory negligence and without mentioning the decision of the Full Court of this court or the High Court in Kakouris, his Honour held:

the fact is and the cases bear it out that it is more difficult to establish contributory negligence in the case of a breach of statutory duty of this kind because a finding of contributory negligence on many breaches of statutory duty would simply transfer to the workman the blame for not doing what the employer by the regulation was commanded to do himself, and accordingly the defence of contributory negligence is construed more strictly in the case of a breach of that type of statutory duty.[75]

It can be seen that Zelling J did not call into question the availability of contributory negligence where the employer had been found liable for a breach of statutory duty.  Rather, his Honour held that contributory negligence was more difficult for the employer to establish.  With respect, I doubt that this reasoning is consistent with the decision of the High Court in Kakouris.   But it is not inconsistent with taking into account the nature of the defendant’s breach of statutory duty when assessing the relative contributions of the parties to the injury.

[74](1974) 9 SASR 282 (‘Rigter’).

[75]Ibid 288.

1. That is the approach later adopted by Cox J in Kondracuik v Jackson Morgan & Sons,[76] also in the Supreme Court of South Australia.  His Honour upheld the claim of the injured worker both at common law and for breach of statutory duty.  When finding the worker guilty of contributory negligence, his Honour declined to follow the judgment of Zelling J in Rigter.  Citing the judgments of the Full Court of this court and the judgment of Barwick CJ in the High Court in Kakouris, his Honour held:

In my opinion there is no relevant distinction, in principle, between the two causes of action, so far as contributory negligence is concerned.  If it becomes a matter of apportioning liability between the parties,… it may well be relevant in some cases to have regard to the ease and certainty with which the defendant could have fulfilled his obligation to the plaintiff – not by having to recognise the danger and then to fashion on his own initiative a suitable remedy, but simply by obeying the instructions contained in a regulation or handbook which he who runs may read.  However, that is simply to take into account one of the relevant circumstances.  It is not to apply a principle or general practice that is distinctive of one particular kind of action.[77]

[76](1988) 47 SASR 280.

[77]Ibid 285.

1. It can be seen from this statement that, like Winneke CJ, Pape and Adam JJ in this court in Kakouris, Cox J accepted that, when apportioning responsibility for the injury, it might be relevant to take into account the nature of the employer’s breach of statutory duty, among other things.  That is not by way of qualification of the general principle that the worker’s contributory negligence is relevant to proportionate contribution where breach of statutory duty is established.  Rather, it is by way of taking the nature of the breach of statutory duty into account as one of the relevant circumstances in assessing that contribution.  In my view, this is the approach that should be followed.

1. It follows that, in Victoria, an employer who is liable in damages for personal injury caused to a worker by negligence or breach of statutory duty may claim apportionment of damages on the ground of the worker’s contributory negligence.  When identifying the proportionate contribution of the parties, the same principles apply in respect of both causes of action.[78]  The nature of the breach of the statutory duty of the employer may be taken into account as one of the relevant circumstances. 

   [78]This is also the position in the Australian Capital Territory:  Andriolo v G&G Constructions Pty Ltd [1988] ACTSC 41 (14 July 1988) [36] (Miles CJ); Zoric v Hans Schmidt & Partners (ACT) Pty Ltd (In Liq) [1988] ACTSC (11 March 1988) [7] (Miles CJ).

Assessment of proportionate contribution

1. The starting point in this assessment is not that the plaintiff was the son of the defendants or that the location of the work was the family farm, as if the social relations between the parties somehow transformed their legal relations or modified the operation of the applicable binding obligations.  The starting point is that the plaintiff was the employee of the defendants in which capacity they owed him a non-delegable duty to take reasonable care of his safety, including by providing a safe system of work.  They also owed him statutory duties to undertake practicable measures to reduce the risk of him being injured (in particular, to reduce the risk of him suffering a musculoskeletal injury) during the course of his work.

1. As we have seen, the scope of the duty of care which an employer owes to an employee may vary according to any known susceptibility of the employee to injury.  The employer must take special precautions to avoid such an injury.  When determining whether this duty of care has been fulfilled, the court will examine whether the employer has taken special precautions that were reasonably open in the circumstances.  The defendants had knowledge of the plaintiff’s susceptibility to injury but, on the day concerned, did not even consider taking such precautions. 

1. The obligation of the defendants under the Occupational Health & Safety (Manual Handling) Regulations and the Occupational Health & Safety (Plant) Regulations was to take steps to reduce the risk of the plaintiff being injured ‘so far as is practicable’.  This obligation applies according to its terms and is both separate from and additional to the duty to take reasonable care which the defendants owed the plaintiff at common law.  In my view, in the present case fulfilment of this statutory obligation must take into account the knowledge which the defendants had of the plaintiff’s back condition, for it meant that he was at increased risk of injury (especially of musculoskeletal injury) and required practical steps to be taken to minimise that particular risk. 

1. According to the verdict of the jury and the order of the Court of Appeal, the defendants breached both their duty of care towards the plaintiff under the common law and the duty to reduce the risk of him being injured which was imposed under the Regulations.  For the purposes of assessing proportionate liability in the facts and circumstances of the present case, it is not to be overlooked that the defendants breached their legal obligations toward the plaintiff in both of these two independent respects.  In making that assessment, it would be wrong to lump the breaches together in some kind of a amorphous cognate class.  The obligations have a different legal source and scope of operation which may both be relevant, and in the present case are both relevant, to assessing the proportionate contribution of the parties to the plaintiff’s injury.

1. The nature of the defendants’ breach of duty of care under the common law was identified by the Court of Appeal and I have set out its findings in that regard.[79]  In the words of Osborn JA (Tate JA agreeing), the defendants (through the first defendant) gave the plaintiff a direction to keep working which ‘no reasonably prudent employer could have given’.  In doing so, the defendants exposed the plaintiff to a foreseeable risk of avoidable injury.  That is no small finding.

   [79]See [17] above.

1. The nature of the defendants’ breach of statutory duty is plain enough from the facts of the case.  It was not technical.  The defendants did practically nothing to reduce the risk of the plaintiff being injured in the way that he was.  An assessment of the risk of him being so injured was not carried out.  Even a cursory assessment would have brought into sharp relief that the plaintiff was at increased risk of such an injury and would have given rise to practical steps being considered for the minimisation of the risk.  The system of work was not altered to accommodate the plaintiff’s known susceptibility to injury.  On the evidence, this could practicably have been done despite the pressure of the harvest.  At the very least, the employment of more people (just one more may have been enough) should have been seriously considered so that the plaintiff did not have to work (if at all) a 12 hour shift and could take sensible breaks.  The defendants had accommodated the plaintiff’s needs and modified his duties in other respects and on other occasions yet had not done so at harvesting time when his need for accommodation and modification of duties was greatest.  The defendants’ breach of statutory duty was, in my view, a serious one and, it must here be noted, was a breach to which the plaintiff in no way contributed and was in no way responsible.

1. The parties sought to rely in strongly contrasting ways on the family context of the employment relationship.  The plaintiff submitted that he was working under pressure to assist on the family farm.  The defendants submitted that the plaintiff was (directly and indirectly) remunerated well for his work, and benefitted economically handsomely from the farm in other ways, and would inherit the farm. 

1. If there is an implicit inference in the defendants’ submissions that the plaintiff should be treated as something other than an employee, I reject it.  The defendants did not suggest that the legal relationship of employment between the parties was a sham and, on the evidence, nor could it be.  The defendants were every bit as obliged by law to take reasonable care of the plaintiff, and take reasonable steps to reduce the risk of him being injured, as any other employer.  The scope and operation of these obligations was in no way diminished by the fact that the plaintiff was their son or that he lived and worked on the farm.  It also follows that he was as much obliged to take reasonable care of his own safety as any other employee, although his employers were his parents. 

1. Because this was a case about an employee who was directed to work against his request for a rest-break on the critical day, it is relevant to consider whether he was then under some pressure to work.  The evidence shows that he was.  The plaintiff felt obliged to assist in bringing in the harvest and the defendants (through the first defendant) placed pressure upon him to do so by continuing to work notwithstanding the pain in his back.  This counts heavily against the defendants in the contribution assessment, both in moral and causal terms.

1. There is evidence that the plaintiff was subjected to family pressure to return to live and work on the farm after his first back operation.  In my view, that pressure was relatively mild and equally matched by the plaintiff’s own desire to do so.  It was very different on the day of the injury.  He was directed to continue working against his better judgement and express wishes.  He could have refused but felt unable to do so and reluctantly agreed to continue.  It is clear from the evidence that the defendants as the employers, and especially the first defendant as the ‘boss’ and head of the farm, were in a position of relatively greater power and authority.  Having regard to that, the relatively greater causal and moral responsibility for what occurred must lie at their feet despite that the fact that the plaintiff freely (if reluctantly) accepted the direction to continue.

1. Understandably, there is some lack of precision in the medical evidence in relation to the deterioration of the plaintiff’s back condition from 1998 to 2005 and the state of his condition before and after the direction to continue on 17 March 2005.  Nonetheless, I think the evidence justifies a finding that, in consequence of his work on the farm (against clear medical advice), his back condition gradually deteriorated over time up to that day. The evidence also justifies a finding, that prior to and early on 17 March 2005, the plaintiff physically performed light work (and heavy work at that and previous harvests).  He did not then require medical intervention.  By contrast, after being directed to continue to work on that day and doing so, he could barely walk and later required further surgery.  In my view, it was the injury which he suffered in the latter part of this day which caused the real damage.  Again, the greater causal and moral responsibility for that must be imposed upon the defendants.

1. The defendants relied heavily upon the plaintiff’s failure to follow clear medical advice not to work at the farm or to do any work involving heavy lifting and bending.  True it is, as I find, that the plaintiff worked contrary to that advice.  But the issues of fact and law in this case should not be obscured by an unbalanced focus upon that consideration.  The defendants freely accepted the plaintiff as their employee knowing that he had injured his back and that his medical advice was not to work on the farm.  They controlled the work and the system of work.  They modified the plaintiff’s work at other times but not on the day when the injury happened.  On that day, they had legal obligations as employers towards the plaintiff as their employee which they breached.  It was that breach, not the plaintiff’s contributory negligence, which was the principal, and most morally culpable, cause of the plaintiff’s injury. 

1. Turning to the plaintiff, I find that he did make some contribution to the injury, both of a causal kind and of a kind deserving moral blame in the relevant sense.  He worked on the farm contrary to clear medical advice.  In the years leading up to March 2005, he performed light duties and worked at his own pace and also worked during harvest time.  This seemed sustainable and lulled him and the defendants into a false sense of security.  The probability is that his back condition actually deteriorated over this time in consequence.  The plaintiff’s back was probably liable to serious injury if placed under heavy strain at any point during this period and that is what actually happened on 17 March 2005.  The plaintiff could have refused to work contrary to the direction of the first defendant and would not have been dismissed had he done so.  In these respects, the plaintiff failed to take reasonable care of his own safety.  He must therefore bear some contributory responsibility for the injury which happened in consequence. 

1. In reaching this conclusion, I have taken into account that the injury occurred when the plaintiff continued to work at the direction of the first defendant.  While it will be an exceptional case that an employee is held to be guilty of contributory negligence when working pursuant to the direction of the employer, I think this is such a case.  In the unusual facts and circumstances, I have taken the view that it is not appropriate completely to separate the plaintiff’s moral culpability and causal responsibility for working on the farm contrary to medical advice from his working on harvest day on the day concerned and continuing to do so despite the back pain he was experiencing, albeit at the direction of the first defendant.

1. However, on the day when the injury happened the plaintiff was first and foremost an employee of the defendants.  He was not the person in control of the workplace.  He was the worker and the first defendant was the boss on site.  The defendants had responsibility for the workplace and the system of work.  They were in the relatively greater position of power and authority.  They accepted the plaintiff as their employee with full knowledge of his back condition and medical advice. 

1. While the plaintiff might have refused to work when the first defendant directed him to continue, he was placed under pressure to work and was actually directed to continue working despite his complaint of back pain and request for a rest-break.  The conduct of the defendants was in breach of duties which they owed as employers towards the plaintiff as an employee under the common law and the Regulations.  Their causal and moral responsibility for the injury which the plaintiff suffered must, therefore, be much greater than his.

1. For these reasons, I assess the proportionate contribution of the contributory negligence of the plaintiff at 20 per centum.

Conclusion

1. On the finding of the jury and the order of the Court of Appeal, the defendants were negligent and breached their statutory duty as employers in respect of the plaintiff as their employee.  As a result, the plaintiff suffered a serious injury to his back.

1. On the order of the Court of Appeal, the function of the court is to decide whether the plaintiff was himself guilty of contributory negligence and, if so, to assess the proportionate responsibility of the parties to the injury.  In making that assessment, the court must consider both the culpability of any departure by the parties from the standard of reasonable care that is expected of them and also the importance of their acts in causing the damage.  

1. The facts of the case were that, contrary to clear medical advice, the plaintiff worked for the defendants, who are his parents, on the family farm.  The defendants were aware that the plaintiff had a back injury and of that advice.  The plaintiff usually did light work at his own pace but at harvest time he did heavy work over long hours.  During the 2005 harvest, the plaintiff complained of back pain and sought a rest-break.  The first defendant directed him to continue working and the plaintiff reluctantly did so.  In consequence, he suffered a serious back injury.

1. On these facts, I have determined that the plaintiff was guilty of contributory negligence.  He was at fault in working on the farm against clear medical advice, especially at harvest time on the day concerned, and he made some contribution to the cause of the injury in so doing.  However, the plaintiff was the employee of the defendants.  The family setting did not change the legal relations between the parties.  As the plaintiff’s employer, the defendants owed him a non-delegable duty to take reasonable care of his safety and also a statutory duty to take practicable steps to reduce the risk of him being injured.  The defendants were in the greater position of power and authority and, in particular, were in control of the workplace and the system of work.  In full knowledge of the plaintiff’s back condition and medical advice, they (through the first defendant) directed him to continue working contrary to his request not to do so.  In those circumstances, as more fully explained in this judgment, the contributory responsibility of the defendants is significantly greater than that of the plaintiff. 

1. The plaintiff’s proportionate contribution to the injury is assessed at 20 per centum and that of the defendants is assessed at 80 per centum.  I will hear the parties as to the orders which should be made.