Reckless injured worker’s common law damages reduced by 70%


A couple of weeks ago I came across this bizarre but interesting Victorian legal case, whereby the Victorian Supreme Court decided (in 2011) to reduce common law damages awarded to a seriously injured worker by a whopping 70% -because the injured worker – who suffers a major back injury – continued to “recklessly” work on the family farm, harvesting tobacco, despite medical advice . The injured worker who continued to do major damage to his back also sued his father, whom he blamed for basically forcing him to do certain work tasks (for 1 1/2 hrs) which he alleged caused his back to “break”.

This legal case, while perhaps extreme, did raise some fundamental questions with me, and undoubtedly with countless other seriously injured workers. Particularly, what if the (seriously) injured worker is repeatedly FORCED at gun point to return to work, in the most unsuitable duties, or for example without the repeatedly prescribed ergonomic aides, at the whim of a bonus-greedy, ignorant case manager, or because of a highly biased IME “report”, or simply because the employer and the insurer choose to ignore certificates of total incapacity and simply force the injured worker to remain at work.

These kinds of scenarios do happen everyday. Some happened to me! The question is, what happens when the injured worker aggravates his/her injury because of the sheer, yes, negligence of the employer/insurer?

For example, I know of a seriously injured worker who was repeatedly denied the medically prescribed (simple) ergonomic aides in the workplace, and was forced to remain at work full time, and forced to continue work in extreme pain, forcing him to use his broken arm. This injured worker ended up undergoing on average 2 major surgeries PER YEAR because he kept tearing her injured elbow to pieces. He was eventually declared unfit for any work, and STILL the case manager and the employer forced her to continue work (yes, despite a certificate to total incapacity!). To save you a long story, this injured worker is now left with a catastrophic injury  and has to date undergone  8 massive surgeries. Now, was this injured worker “reckless”?

How many injured workers are forced to work in the most unsuitable duties? How many are actually aggravating their injuries because they have NO option but to continue work (i.e. they are verbally threatened that their weekly pay or claim will be stopped if they don’t “cooperate”)?  If an injured worker is coerced in undertaking tasks they are medically not allowed to do, but end up doing them because they have no choice, who is responsible?

This legal case is really an eye opener as far as this issue concerns.

We,injured workers must also remember that it is our right to refuse work if we believe the work (even “suitable work) is unsafe to do and, most importantly that  Suitable Duties offer must adhere to doctor’s instructions.

(We will be posting some more information and articles, incl legal cased on the “suitable duties” that must adhere to doctor’s instructions in the near future)

Reckless injured worker’s common law damages reduced by 70%

The case

The Victorian Supreme Court decided in the case Pasqualotto v Pasqualotto [2011] VSC 550 (27 October 2011) that common lawdamages awarded to a “reckless” injured worker – who continued to work on the family farm, harvesting tobacco, despite medical advice, (and then sued his father!) – was to be reduced by a whopping 70%

The injured worker  suffered a serious spinal injury while harvesting tobacco in 2005.

He appealed against a jury’s decision to reduce his common law damages to $844,067, after it found he knowingly exposed himself to risk, and was basically “reckless”.

The hearing at the Victorian Supreme Court (2011)

At the Appeal hearing, in  the Victorian Supreme Court heard that the injured worker, who at the time was just 36 years old, had undergone  a double fusion of his spine in 1997 after a car accident. They also heard that between the period of 1997 and 2000 the injured worker’s surgeon repeatedly warned him that manual work would “virtually guarantee the demolition of the L3/4 disc”.

However, despite this explicit medical advice, the injured worker returned to work on the family farm to help harvest tobacco.

His job involved driving a vibrating harvester while bending and stretching to pick ripe tobacco leaves.

The court heard that in March 2005, while working , the injured worker complained of back pain, but his father told him to stay on the harvester until he could relieve him.

After another hour and a half of picking tobacco leaves he had said he was in so much distress he could not stand up. He was subsequently diagnosed with a collapsed disc and required further surgery.

The argument of the injured worker

At the Supreme Court, he injured worker argued that he could not be found guilty of contributory negligence because at the time of the incident he was “performing work in accordance with a specific direction” from his employer, namely his father.

The injured worker further argued that he had no control over the work system used to harvest tobacco, which the jury had found to be in breach of manual handling ( and other plant Regulations).

The Supreme Court finds the injured worker’s negligence more significant

Supreme Court Justice Emilios Kyrou found that in choosing to disregard specific and repeated medical warnings about his condition, the injured worker was “not only negligent in relation to his own safety, but he was reckless”.

Justice Kyrou also stated that it was open to the jury to find the employer (the injured worker’s father) did not have “anywhere near” the worker’s knowledge of the risk of injury to his spine, or which tasks would contribute to further damage.

Kyrou went on to say that the { injured} worker’s negligence was “causally more significant” in relation to the injury than the employer’s breach of the Regulations.

Justice Kyrou did also uphold the  jury’s finding that the (injured) worker’s disc collapse was caused by the gradual disintegration of the disc from the time he returned to work, and not by the extra hour and a half he worked following the onset of pain.

Justice Kyrou ended by saying that…

workers had a duty of care for their own safety, and this could be breached independently of any breaches by an employer.

You can read the full text of the legal case here:  Pasqualotto v Pasqualotto [2011] VSC 550 (27 October 2011)


[Post dictated by workcovervictim and manually transcribed on behalf of workcovervictim]


tipYou may also be interested in the article titled All injured workers are under a legal duty to mitigate their loss

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3 Responses to “Reckless injured worker’s common law damages reduced by 70%”

  1. As mentioned within the article we have now posted an illustrative legal case pertaining “Suitable duties offer must adhere to doctor’s instructions” under our newly constructed RTW page (under Your Rights)

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  2. Damned if we do and damned if we don’t. Most unseen injuries are very confusing both to the Injured Worker and their treating professionals. When we first feel the injury, we don’t know what boundaries to put on it, and while we should listen to our health carers, we are also ordered to do things by our employers, and feel bound by industrial laws to obey. That poor worker would have also had the authoritative voice of his father to contend with as well.

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  3. Thats right – do as we say, not as we do!

    I have had to lean in to my family the last couple of weeks as the stress & pain have been taking their toll on me & my health. I have had repeated long taxi rides into the city & back home & found it easier to use the same taxi driver. He offered to me that if I paid him cash, he would then give me a taxi receipt for a higher amount. So I went out of my way to get cash for my next trips. I was just telling my family member that I would be paying cash for the next trips & they questioned me why? I just plainly said that the taxi driver suggested it -ohh & he would write a receipt for a higher amount. No no no, was the short answer. Why would you risk your whole case over a few $$?

    The thought had not entered my mind at all. But it reminded me of the comment my lawyer made to me, which is that I am not allowed to make 1 mistake, yet ‘they’ can lie & cheat all the way thru. When I read the details of the story it makes me realise that we all can do things that can make our health conditions worse, or make our legal cases worse because often we are the type of people who sacrifice our own well-being at the expense of others.

    Hopefully our stories continue to be the help we each need to remind each of us to not sabotage our futures.

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