An employer who directs an employee with a known pre-existing spinal injury to continue physically demanding work after the employee complains of pain, in circumstances where the employer had previously permitted rest breaks, breaches the duty of care as a matter of law — the commercial imperative of maintaining production output cannot displace the duty. Contributory negligence remains available even where the employee was injured while complying with the employer's direction, if the negligence alleged is the anterior decision to undertake the work at all contrary to medical advice. On breach of the rule in Browne v Dunn, exclusion of contradictory evidence is an extreme remedy; the preferred course is recall of the witness under s 46 of the Evidence Act 2008 (Vic), and a trial judge's refusal to exclude the evidence will only be overturned on House v The King principles.
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