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

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.

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

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Pasqualotto v Pasqualotto (No 3)

Details

AGLC: Pasqualotto v Pasqualotto (No 3) [2014] VSC 26
Case: [2014] VSC 26
Decision Date: 12 FEBRUARY 2014

CaseChat Overview and Summary

In Pasqualotto v Pasqualotto (No 3), the plaintiff, a son, sought damages from his parents, the defendants, for injuries sustained while working on their family farm. The plaintiff had been advised by medical professionals to avoid strenuous work due to a pre-existing back condition. Despite this advice, the plaintiff was directed by the first defendant to continue working during the harvest season, leading to an exacerbation of his back injury. The dispute reached the court, which had to determine the extent of the defendants' liability for breach of statutory duty and contributory negligence on the part of the plaintiff.

The primary legal issues involved the interpretation of statutory duties under the Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic) and the Occupational Health and Safety (Plant) Regulations 1995 (Vic), specifically regulations 15 and 704. The court had to assess whether the defendants breached their statutory duty by exposing the plaintiff to unsafe working conditions, knowing his medical advice to avoid such work. Additionally, the court examined whether the plaintiff's contributory negligence in continuing to work despite his condition and complaints mitigated the defendants' liability. A significant aspect of the case was determining the proportionate contribution of both parties to the injury and whether the breach of statutory duty was independently relevant to the outcome.

The court found that the defendants had indeed breached their statutory duties by knowingly exposing the plaintiff to hazardous work conditions, despite his medical advice. The court also determined that the plaintiff was guilty of contributory negligence, as he continued to work despite his condition and requests for a rest-break. However, the court held that the breach of statutory duty was independently relevant and that the defendants were liable for a proportionate share of the plaintiff's damages. The court quantified the plaintiff's contributory negligence at 25%, reducing the damages awarded by the same percentage.

The court ordered the defendants to pay the plaintiff damages, reduced by 25% for his contributory negligence, and made specific findings regarding the statutory breaches and their relevance to the overall liability. This decision underscored the importance of adhering to occupational health and safety regulations and the impact of contributory negligence on the apportionment of damages.

Orders