Nibaldi v Genazzano FCJ College Limited

Question 1: In relation to the June 2018 injury, was there any negligence on the part of the defendant which was a cause of injury, loss and damage to the plaintiff?

Question 2: In relation to the June 2018 injury, was there a breach of the provisions of the Occupational Health and Safety Regulations 2017 (Vic) on the part of the defendant which was a cause of injury, loss and damage to the plaintiff?

Question 3: If yes to Questions 1 and/or 2, in what sum do you assess the plaintiff's pain and suffering damages for the June 2018 injury?

Question 4: If yes to Questions 1 and/or 2, was there contributory negligence on the part of the plaintiff which was a cause of her injury, loss and damage?

Question 5: If yes to question 4, by what percentage is it just and equitable that the plaintiff's damages be reduced having regard to her own share of responsibility for her injury, loss and damage?

Question 6: In relation to the April to June 2020 injury, was there any negligence on the part of the defendant which was a cause of injury, loss and damage to the plaintiff?

Question 7: In relation to the April to June 2020 injury, was there a breach of the provisions of the Occupational Health and Safety Regulations 2017 (Vic) on the part of the defendant which was a cause of injury, loss and damage to the plaintiff?

Question 8: If yes to Questions 6 and/or 7, in what sum do you assess the plaintiff's pain and suffering damages for the April to June 2020 injury?

1. Following the jury's verdict, Genazzano moved for judgment notwithstanding the jury's verdict on Questions 6 and 7. Genazzano did not move for judgment notwithstanding the jury's verdict on Questions 1 and 2.
2. Mrs Nibaldi opposed the motion.

1. The legal principles are well known and were not in issue.
2. In Naxakis v Western General Hospital,[2] Gaudron J stated:

"It is well settled that, where there is a jury, the case must be left to them '[i]f there is evidence upon which [they] could reasonably find for the plaintiff', or, as was said by Hayne JA in the Court of Appeal, the case can be taken away only if 'there was no evidence on which the jury could properly conclude that the plaintiff had made out his case'. That does not mean that the case must be left to the jury if the evidence is 'so negligible in character as to amount only to a scintilla'. However, if there is evidence on which a jury could find for the plaintiff, it does not matter that there is contradictory evidence or, even, as was said by Harper J at first instance, 'that the overwhelming body of evidence points to the [contrary]'.

Moreover, when considering whether there is some evidence upon which a jury could find for a plaintiff, it is important to bear in mind that the jury may properly accept parts of a witness's evidence and reject others. Thus, for example, a jury may believe what is said by a witness in examination in chief and reject apparent modifications or qualifications elicited in cross-examination."

"When the defendant submits that there is no evidence to go to the jury, he or she raises a question of law for the judge to decide. The question for the judge is not whether a verdict for the plaintiff would be unreasonable or perverse but whether the plaintiff has adduced evidence which, if uncontradicted, would justify and sustain a verdict in his or her favour. An appellate court may later be able to set aside the verdict on the ground that it is unreasonable or against the weight of the evidence. But the function of the trial judge is more circumscribed.

In determining whether there is evidence upon which the jury could properly find for the plaintiff, the trial judge must consider those parts of the evidence which, if accepted, could reasonably establish negligence - whether directly or inferentially. If such evidence has been tendered, it matters not that other evidence has been tendered that may contradict it even if the contradictory evidence comes from a witness, parts of whose evidence is relied on to prove negligence. It has long been established that a plaintiff is entitled to ask the jury to accept part - even a small part - of the evidence of a witness and to reject the rest of the witness's evidence ...

Furthermore, evidence given by a witness including the plaintiff in support of the claim of negligence will ordinarily have to be taken into account on a no case submission even if that evidence may appear to be contradicted of qualified as a result of cross-examination. A jury which has heard and watched the witness give evidence may regard such apparent contradictions or qualifications as not having the weight that they might appear to have from a mere perusal of the transcript. ...

Similarly, the effect of apparent concessions of qualifications by the plaintiff or other witnesses under cross-examination are matters for the jury to evaluate ... Unless in cross-examination, the plaintiff or other witness withdraws his or her evidence supporting a conclusion of negligence, the trial judge will ordinarily have to regard that evidence as uncontradicted in determining whether there is a case to go to the jury. ... ."

1. In King v Amaca Pty Ltd,[4] Kyrou J summarised the principles as follows:

"In order for a defendant's application for judgment notwithstanding the jury's verdict to succeed, the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.

Where there is evidence to support the jury's verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury's conclusion.

A trial judge hearing an application for judgment notwithstanding the jury's verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.

A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury's verdict in the clearest of cases."

1. Mrs Nibaldi was first employed by Genazzano in October 2016. Her role as a library technician included assisting staff and students at the school in their use of the library and its resources. She worked full time, primarily in the senior library, known as the d'Houët Library. Her general duties included cataloguing, shelving, assisting at the service desk, "weeding", cleaning and tidying, looking after periodicals and subscriptions and collating resources for classes.
2. The task of "weeding" books involves selecting books from the shelves in the library that were damaged, out of date, or for any other reason to be deleted from the collection, moving the books, deleting them from the catalogue, removing plastic covers et cetera and then disposing of them.
3. There were two library technicians at the school, Mrs Nibaldi, and Sharyn Errey. Ms Errey worked three days a week (Wednesday, Thursday and Friday).
4. Mrs Nibaldi claimed that on two occasions in the course of her employment, she suffered injury to her lumbar spine in the form of a disc prolapse at L5-S1. First, in June 2018, and secondly, in the period April to June 2020.
5. The plaintiff said that her injury in June 2018 occurred when she was pushing an unsuitable wooden trolley in the d'Houët Library while in the process of weeding books in the first week of the mid-year school holidays.
6. In this proceeding, the primary issue between the parties in relation to the June 2018 injury was whether it happened at work.
7. If it was found by the jury that it happened at work, Genazzano denied any breach of duty of care and/or breach of the Occupational Health and Safety Regulations 2017 (Vic) ("the Regulations") in respect of the June 2018 injury.
8. By its verdict, the jury found that the June 2018 injury happened at work and that a breach of duty and breach of the Regulations by the defendant was a cause of the plaintiff's injury.
9. In March 2019, Mrs Nibaldi underwent a microdiscectomy at L5-S1, performed by Professor Richard Bittar, neurosurgeon.
10. Mrs Nibaldi returned to work following her surgery. She resumed full-time duties but said that she worked within her physical capacity.
11. In her evidence-in-chief, Mrs Nibaldi said she did not perform weeding for the remainder of 2019 or in early 2020.[5] Mrs Nibaldi said that she did not use the wooden trolleys after June 2018.[6]
12. In late 2019, Genazzano developed a Library Action Plan. Stage 1 of the Plan, which was scheduled for the period November 2019 to March 2020, involved making space in the d'Houët Library by -[7]

"... significant weeding of entire non-fiction collection. Weeding includes assessing the books, removing from the shelf onto a trolley, deleting the record, cancelling the book (stamping, removing plastic covers), disposing in bin or other."

1. The purpose of the weeding of the non-fiction collection was to make space in the library for the humanities collection, which was to be moved from the humanities room adjacent to the d'Houët Library.
2. In her evidence-in-chief, Mrs Nibaldi said that not much of that weeding task had been undertaken by March 2020.[8]
3. During cross-examination, Mrs Nibaldi was asked and answered the following questions about her participation in weeding from November 2019 until April 2020:[9]

Q: "So you were involved in this weeding from November 2019 through until April of 2020, is that right?---

Q: Your evidence yesterday was that you were not involved in any weeding during that period, so which is it?---

A: The weeding at that stage, okay, was a light weed, you just don't get rid of - normally you do not do everything in one big large batch, okay, you keep skimming, okay and it's done - - -

Q: If I can stop you there. If we just isolate that. So that is as part of your general duties the weeding you go through and you identify things that need to get weeded?---

Q: And that again is a very light job, isn't it?---

Q: But even, Mrs Nibaldi, as you've described, the weeding process is you would walk and scan along the shelves - - -?---

Q: No. sorry, scan with your eyes, not with a - - -?---

Q: So in your passing you would identify, 'oh, that book looks a bit sub-par, so we'll get that one out and we'll weed it', yes? Or alternatively, when students return books to the wooden trolleys at the end of the aisles, if you get something that looks a bit sub-par again you might weed that; that's right, and that was the process you were going through, wasn't it?---

Q: Again, you were essentially doing a book one at a time?---

Q: There's nothing physically demanding about that role, is there?---

A: Done on my terms, and as I said previously, it might be during my lunch break or, you know, I didn't set aside a time other than in the holidays, because you don't have time, that's the thing, classes are always in, students are always in, it's not something like a public library where time is set aside, it's different, so the way we operate is minimal disruptions to students.

Q: And it's not a repetitive task, is it, either?---

Q: You described the process, as I've said to you, is that you identified a book that needs weeding and then go through the process of weeding it, which means taking it to the front desk ...

... you scan it; that's right, and then you have to go through the process, either you drop it off at a collection point or another point where technicians will then deglove it and do various other things, or you do it yourself, that's right?---

Q: And the process for a book might be, every book might be five to 10 minutes?---

Q: And then you go back and do the next task, you'd go and find another book; that's right?---

A: It's a repetitive action, it's a lot on your hands, the time in 2020, this far exceeded the normal scope of work. You're not understanding the scope.

Q: Are you talking about from April 2020 onwards?---

1. Documentary evidence was tendered of the d'Houët Library's holdings in 2018 and 2020 as follows:[10]

(a) June 2018 Total 60,705 Non-fiction 17,638

(b) January 2020 Total 56,358 Non-fiction 13,842

(c) February 2020 Total 55,019 Non-fiction 12,836

(d) March 2020 Total 54,525 Non-fiction 12,566

(e) April 2020 Total 49,660 Non-fiction 9,580

(f) May 2020 Total 46,137 Non-fiction 7,731.

1. The first COVID-19 lockdown in Melbourne started on about 20 March 2020.[11]
2. Initially, Mrs Nibaldi worked from home.
3. By mid-April 2020, Mrs Nibaldi had run out of work to perform at home.[12] She said she attended the school and had a meeting with Genazzano's chief operating officer, Sonya Slocombe.
4. Mrs Nibaldi wanted to continue working from home as one of her sons was in Year 12 and was suffering from anxiety. Mrs Nibaldi said that Ms Slocombe told her that if she wanted to be at home she would need to take sick leave.
5. Mrs Nibaldi said that Ms Slocombe instructed her that if she did not attend work, she would lose her job.[13]
6. Further, Ms Slocombe instructed her to undertake the weeding of the non-fiction collection. Mrs Nibaldi's evidence was that she responded as follows:[14]

"... I asked her how - I said to her I couldn't do it, and there was no - I had no equipment, no staff, and she said she wanted the job done lickety-split."[15]

1. Mrs Nibaldi said the only other staff member available to do the weeding with her was Ms Errey. She said:

"We did ask around, everyone took one look and said no."[16]

1. The following questioning then occurred:[17]

Q: "That work you say you had not been doing for over 12 months, what was it about that work and your injury that made it work you wouldn't do until the April of 2020?---

A: This is outside the norm, um, the scope of work was tremendous, you have to understand you're moving several shelving collections, we've got teacher reference, which we had thousands, we had to empty out store rooms, we had to make room, because you're effectively relocating one collection, which was huge, 'cause it's in its classroom, and merging it with another. There was no proper weeding that had been done, we'd just done superficial, and we had no room."

1. Mrs Nibaldi said that she phoned her immediate supervisor, Julia Petricevic, and asked her to come into the Library and stop the work.[18] She said she contacted Ms Petricevic -[19]

"Because there was no way we could do it. I needed - I honestly naïvely thought Julia would come in, wave her magic wand, and they would listen."

1. Mrs Nibaldi said that she approached Ms Slocombe and said that help was needed to do the work. Ms Slocombe told her that she was trying to find staff to help and suggested a person who worked in the school's boarding house. Mrs Nibaldi said her response was:[20]

"... they need to be young and strong and fit. You can't get an elderly lady lifting all these books."

1. During cross-examination, Mrs Nibaldi was asked what happened after she had the conversation in which she told Ms Slocombe she was not able to do the work:[21]

Q: "You say to her 'I can't do it'; that's right?---

Q: You then go on and commence the work; that's right?---

A: Ah, not straight away, I did say to her 'I need staff, I've got no equipment', and she said she was going to try and find someone, and I said to her they need to be young and fit, um, and I also told her that I have no staff, you don't do something - you don't move three-quarters of a library with one and a half staff members. That's unheard of.

Q: When you say moving three-quarters of the library, that's part of the weeding process, isn't it, to make room for these books coming out of the humanities room; that's right?---

A: Yes, we had to weed the teacher reference, non-fiction, we had to clean out storerooms to make room, and then all the humanities had to come out and integrate with - because all the books had to be moved down, so that the history books, the 900s, could be integrated with the rest of the collection. Furniture had to be moved, um, it was a lot of work, and not the scope of work, no one in their right mind would have said to get it done during that period of time. It was not the right - it had to be done, yes, I'm not disputing that. At that time, during COVID with no staff, there was no OH&S risk assessment, we needed new trolleys, that should have been the first thing that got done, okay, and there was no discussion. ... ."

1. On 17 April 2020, Ms Petricevic emailed the school principal, Karen Jebb. The subject of the email was "Helpers to move books". The email relevantly said:[22]

"We are still in the process of removing books from the collection, this lengthy process requires removing books from the shelves, deleting their record and throwing them away or moving them out.

Next step is moving the collections, which we may be up to next week. This is a very physical job, the books are heavy, and it is a repetitive task so can't be done all day. Sharyn is over 60 and will be going on LSL for two weeks (after next week), Lidia has significant strength and mobility issues. I am currently preparing online classes and doing online maintenance work on our ebook platform and library website so not available a lot. We really need help for this task. I have just spoken to Gavin and he says maintenance are not available. Do you have any solutions?"

1. On 21 April, at 10.26 am, Ms Petricevic emailed Ms Slocombe and Ms Jebb. The subject of the email was "Library action plan". The email relevantly stated:[23]

"Please see attached for the Library Action Plan. I have outlined what has already occurred and what is happening at the moment and what needs to happen moving forward.

Weeding and moving the collection is a highly physical and time-consuming job. Sharyn is over 60 and goes on Long Service leave for two weeks next week, Lidia has significant mobility issues, I have taken on most of Lyn's classes and have a lot of online requirements to set up and manage at the moment, including Co-Curricular, online resources, Duke of Ed, LitFest, etc. We need helping (sic) moving the books - this is something that needs to be worked in amongst the collection management we have to do."

1. The following evidence was given in relation to Mrs Nibaldi starting to perform the work, performing the work, and experiencing pain:[24]

Q: "After receiving those instructions from [Julia] Petricevic and from Sonya Slocombe, did you set about doing the task?---

A: Initially, I'm going, no, no, no, no, 'cause it's just my health, you know, um - - -

A: Yeah. Sorry. Yes, I did. I did start doing it, looking at Sharyn with those horrible trolleys lifting three, five kilo books, text books on her own, she's over 60, you're put over a barrel, just not right.

A: I grabbed the wire basket and approached the other end of the collection, so the opposite end to picture 7, so it's to the left, yeah, to the left, um, and worked that way.

Q: And so can you say what day it was that you started doing the weeding?---

A: The day that my injury, I did the injury report.

Q: Was Julia Petricevic, was she working that day?---

Q: During that day, who are how long (sic) were you doing the work for?---

Q: What happened to you when you were doing the work?---

A: I started getting the back ache, um, and progressively over the days it just got - it's part of me was just breaking down, I had the sciatic nerve pain, reminiscent of the first, um, yeah.

Q: What was the task that you were doing in weeding at that stage, what were you attempting to achieve; what books from where?---

A: Well, some books had been removed, so I had to relocate from - because we had huge gaps within the shelves, so I had to relocate books around to the other side, I also had to do weeding, you had to clean the shelves as well, 'cause they were very dirty, you had to fan the books out because they were very dusty, um, yeah.

Q: What aspects of the work at that time that you were doing it are you able to say were causing you to have pain?---

A: It was the whole, collectively, dealing with that volume, that task was just not for me. There was too many, um, movements involved for my health.

Q: You indicated it's not for you, but if I could take you back two years beforehand, before you had your first injury, that volume of work that you were asked to do in the April, how would you have been able to cope with that before your first injury? Would it have been something that you could easily cope without injury, or was it only because of the injury you couldn't cope with it?---

A: Um, anybody who did that job on their own would come out very sore, and they would come off with something.

Q: Was there anyway (sic) in which you could reduce the way in which you did it to avoid yourself having injury?---

A: Even if I did it for 10 minutes a day, that job was not for me.

Q: When you were doing the job, you started to get symptoms?---

A: Yes, Karen McCoy came down, who is the OH&S rep.

Q: And what complaint did you make to the OH&S rep about that?---

A: Well, she took one look, she was astonished, 'cause she had no idea, and I told her that I was injured, and she recommended that I fill in a WorkCover form, injury report, and I did."

1. During cross-examination, the following evidence was given by Mrs Nibaldi about the work that she did at that time:[25]

Q: "Your evidence yesterday was you were told by Ms Slocombe that you were to get on and do the job, you protested, you then went and did it for a short while; that's right?---

A: It was moving books, um, because there was some aspect of it being weeded, but the rest of the collection, three-quarters of it still needed to be done, and - - -

Q: Mrs Nibaldi, your evidence yesterday was that you were told to get on and do the weeding, not the moving of books, the weeding, and you accepted that; that's right?---

A: But the humanities room needed to be emptied, they wanted the room, so weeding essentially is one aspect of the job that needed to be done.

Q: And that was what you were doing for a short period of time before you - - -?---

Q: And a short period of time, I suggest to you, was a matter of about an hour that you were doing it, is that right?---

Q: So you're doing the weeding task for about an hour; that's right?---

Q: And that happened, your evidence yesterday was, on 14 April 2020; that's correct?

Q: And all you were doing for that hour was the process that you've described to members of the jury as well, you were going and identifying books that needed to be weeded?---

Q: You would then take them off the shelf and process them; that's right?---

1. The Injury Report completed by Mrs Nibaldi nominated the date of injury as 17 April 2020.[26] It was signed by Mrs Nibaldi on 21 April 2020, and by Ms Redman, the school nurse, at "1200 pm" on 21 April 2020. The report was co-signed by Erin O'Mahoney, the deputy principal. The details of the accident were described as follows:

"[H]andling vast quantities of books which includes sorting, shifting, lifting, removal of plastic covers, also bending, being on my knees, crouching, extending my arms has aggravated and added to my medical condition."

1. Mrs Nibaldi said that when Ms O'Mahoney came to co-sign her Injury Report she had a discussion with her as follows:[27]

"She asked me when I was going to empty out the history room, and I said I'm not, and she asked me 'what, not even a little bit?' I was like, 'no, I'm injured', and I proceeded to tell her of the movements that would be involved, so for those that don't know, it's that bending down 'cause the shelves there were much lower, so you had to get down on your hands and knees, do what you had to do, put them on the trolley, stand up, push that, and move them to another shelving location and so on and so - I couldn't even get down there, no way."

1. The Worker's Injury Claim Form completed by Mrs Nibaldi nominated 16 April 2020 as the date on which she first noticed her injury, and 17 April 2020 as the date the injury occurred.[28] The circumstances of the injury were described as follows:

"[L]ifting of heavy books, handling heavy books, being on my knees, reaching high to lift the books, large volume of books.

Weeding the non-fiction collection & deleting books."

1. The Employer Injury Claim Report noted that Mrs Nibaldi reported her injury on 21 April 2020. It included the following incident details and additional information:

"Worker has pre-existing injuries & complained to me about these injuries.

The worker was completing a repetitive motion of moving books in the library & says she has sustained an injury of sore hands & legs.

I think the worker didn't take enough breaks from doing the same repetitive movements & has strained existing injuries. ... ."

1. In evidence-in-chief, Ms Errey said, prior to her long service leave in late April 2020, she and Mrs Nibaldi were having difficulties with the weeding/moving work. She said:[29]

"... it was such heavy work to do all day, day in day out, and I only work part-time, I don't work a full week, so we were both struggling, at the end of the day we were exhausted from doing the work."

1. Ms Errey said the task they were undertaking in April 2020 was re-arranging all the books, taking the non-fiction books off the shelves and putting them back on to make room for the books from the humanities room.[30]
2. Following her injury, Mrs Nibaldi continued working in the Library in April, May and June 2020, but in a restricted manner.
3. In August 2024, a manual handling risk assessment was undertaken of the task of "removing old shelves and installing new shelving, weeding, deleting of books in non-fiction collections".[31] There was evidence that no prior risk assessment had been undertaken of these activities.

1. Senior Counsel for Genazzano submitted that on the evidence most favourable to Mrs Nibaldi, there was no more than a "mere scintilla of evidence" to sustain a finding of negligence and/or breach of the Regulations in relation to the April to June 2020 injury.
2. Senior Counsel submitted that taking the evidence at its highest for Mrs Nibaldi:

(a) there was no direct evidence from Mrs Nibaldi about what she was doing;

(b) she was not working for long before she was injured;

(c) the day she was injured was the day she completed the Injury Report;

(d) there was no specificity as to how many books she attended to;

(e) in cross-examination, Mrs Nibaldi accepted that the task she was performing at the time she experienced pain was "weeding";

(f) in cross-examination, Mrs Nibaldi accepted that she had been "weeding" for about an hour when she experienced the onset of pain;

(g) Mrs Nibaldi accepted that weeding a book takes about five to ten minutes per book, doing one at a time, and therefore if she was weeding for an hour, Mrs Nibaldi could not have handled more than five to ten books in total;

(h) as to the descriptions of her activities in her Injury Report and WorkCover Claim Form, Senior Counsel submitted:[32]

"... they are the plaintiff's documents, they're the plaintiff's explanation of it. Of course, they stand as evidence of the work she says she was doing, but when one considers the concessions made by her, we say that it would not be reasonable, no reasonable jury properly directed, we say, could accept this explanation given by her in a document."

(i) Ms Errey did not give evidence as to the specific work Mrs Nibaldi was undertaking, or the period she was doing it.

1. Senior Counsel for Genazzano submitted, that the effect of Mrs Nibaldi's oral evidence, was that at the time of her injury, she had processed five to ten books over the space of an hour, dealing with them one at a time.
2. Conceding that Mrs Nibaldi did not explicitly disavow her descriptions of the work in the Incident Report and Worker's Injury Claim Form, Senior Counsel submitted that it was not necessary for her to say so expressly for that to have been acknowledged.[33] Senior Counsel further submitted:[34]

"[T]hese documents cannot trump, we say, the tempered nature of the plaintiff's, or the manner in which the plaintiff's evidence and answers have tempered this evidence."

1. It was submitted that, given there was no more than a "scintilla of evidence" to support a finding by the jury that Mrs Nibaldi handled any more than five to ten books, weighing a few hundred grams to five kilograms individually, over about an hour:

(a) it was not open to the jury to find there was a reasonably foreseeable risk of injury. Senior Counsel acknowledged that submission was only put on the basis that, prospectively, a reasonable employer in the position of Genazzano would have determined that it was far-fetched or fanciful that Mrs Nibaldi was at risk of injury if she weeded books individually in that manner;

(b) there could be no basis for a finding of breach of the employer's duty of care in requiring Mrs Nibaldi to weed books individually in that manner;

(c) there was no basis for the jury to find that the task of weeding books individually at the rate of five to ten per hour was "hazardous manual handling";

(d) there was no evidence upon which the jury could find that Genazzano failed to control the risk of musculoskeletal injury in accordance with Regulation 27 of the regulations.

1. Senior Counsel for Mrs Nibaldi submitted this was one of the clearest cases of negligence one could see.
2. Genazzano's application rested on the jury having to accept that Mrs Nibaldi was moving six to ten books an hour. The jury did not have to accept that evidence and was entitled to look at the totality of the evidence and "disregard that quantification by the plaintiff".[35]
3. There was other oral evidence from Mrs Nibaldi that the work she was doing when injured in April 2020 involved heavy work. There was oral evidence from Ms Errey that supported that finding. Additionally, there were contemporaneous documents which supported a finding that the task was known to be heavy and repetitive, and Mrs Nibaldi was performing heavy and repetitive work when injured.
4. Further, Senior Counsel for Mrs Nibaldi submitted that there was evidence that Mrs Nibaldi continued working following injury, in April, May and June 2020, albeit with limitations.

1. Genazzano's submissions on this application resolve to a single point. That is, were the jury bound to find that the work Mrs Nibaldi was performing when injured in April 2020 was weeding individual books at the rate of five to ten per hour and that she did so for about an hour?
2. I have set out the evidence relevant to this issue in detail above.
3. In my view, there was a considerable body of evidence that the work Mrs Nibaldi was performing at the time she was injured did not involve weeding individual books at the rate of five to ten books per hour.
4. Taking the evidence at its highest for Mrs Nibaldi, it was open for the jury to conclude, on the balance of probabilities, that:

(a) the evidence Mrs Nibaldi gave in cross-examination that the task of weeding books individually taking five to ten minutes was in the context of her general duties, not the task being performed in April 2020;

(b) if the jury determined that the evidence given by Mrs Nibaldi during cross-examination (that weeding books individually at the rate of five to ten per hour was the task she was performing when injured in April 2020) was a modification or qualification of her other evidence, they were entitled to reject that modification or qualification and prefer other evidence;

(c) the task being performed in mid-April 2020 involved weeding the non-fiction collection, and moving books to make space for the humanities collection;

(d) Mrs Nibaldi was moving and weeding large quantities of books at the time she was injured;

(e) Mrs Nibaldi told Genazzano her belief that she was not physically capable of performing that work;

(f) Genazzano did not perform any risk assessment of the work prior to the work commencing;

(g) a reasonable employer in the position of Genazzano would have foreseen that performing that task posed a foreseeable risk of injury to its employees;

(h) Genazzano did not give any directions to Mrs Nibaldi as to the way she was to perform the task, or the breaks she should take;

(i) the task involved "hazardous manual handling", in that it involved a repetitive or sustained application of force, and/or sustained awkward posture and/or repetitive movement;

(j) Genazzano did not reduce the risk of musculoskeletal injury from undertaking the task so far as was reasonably practicable;

(k) Mrs Nibaldi was doing the heavy work for about an hour when her symptoms first presented;

(l) she continued working after her symptoms first presented.

1. The Court should only disregard the jury's verdict in the clearest of cases. This is not such a case.
2. I find, there was considerable evidence upon which the jury could find Genazzano liable both in negligence and for breach of the Regulations in relation to the April to June 2020 injury.

1. Genazzano's application for judgment notwithstanding the jury's verdict on Questions 6 and 7 is dismissed.
2. I will hear the parties further regarding the orders to be made in accordance with the jury's verdict.

[1] Nibaldi v Genazzano FCJ College Ltd (Ruling No 1) [2025] VCC 347 (expert evidence)

[2] (1999) 197 CLR 269 at paragraphs [16] and [17] (footnotes omitted)

[4] [2011] VSC 422 at paragraphs [7]-[10]