Banana labourer’s damage reduced for contributory negligence, pre-existing conditions and sporadic work history

Longbottom v L & R Collins Pty Ltd [2021] QSC 242

Supreme Court at Cairns

Chief Justice Holmes

28 September 2021 

In the recent judgement of Longbottom v L & R Collins Pty Ltd [2021] QSC 242, the Supreme Court of Queensland found a worker liable for the loss and damage suffered when he sustained injuries when the top of the banana tree (and the bunch of bananas) being harvested fell on the worker.

Background

Mr Longbottom was a labourer who was 35 years old at trial.  He alleged he sustained right hip, right shoulder and secondary psychological injuries when the top of the banana tree (and the bunch of bananas) being harvested fell on the plaintiff.  The plaintiff alleged this occurred because another worker known as a ‘cutter’ had made an incorrect incision into the tree resulting in the top of the tree and the bunch falling on him.

Liability and quantum

The main issues in dispute at trial were:

• whether the plaintiff had contributed to his own injuries; and
• the plaintiff’s likely earnings had he not been injured and his residual earning capacity in circumstances where:
  • the plaintiff had only been employed by the employer for 14 weeks before the incident;
  • the plaintiff’s pre-injury work history was sporadic with no full time employment for extended periods of time.  His activities during these periods included travelling, surfing, some cash-in-hand work, labouring, mowing lawns, some work obtained through a cousin, receiving carer’s pension while he looked after his mother who had injured her back, and working for a short period as a concrete pumping linesman for a friend’s business;
  • prior to his injury, the plaintiff’s intention was to continue travelling and undertaking labouring work to fund his trips; and
  • the plaintiff had an unrelated degenerative lower back condition.

Judgement / Findings

The trial judge accepted the cutter was negligent in making the cut with such force that both the tree and bunch suddenly fell. Her Honour also found the plaintiff contributed to his injury by failing to keep clear while the first cut was made. The court considered that ordinary prudence would indicate the danger of not standing clear and keeping a lookout when the first cut was made. The plaintiff disregarded an obvious risk and failed to take reasonable care for his own safety. The court assessed this contribution at 10%.

With regard to quantum, the court concluded that:

• the plaintiff’s injuries rendered him unable to undertake the heavy physical work for which he was previously suited;
• his work history in the past was spasmodic and interrupted by his enthusiasm for travel and surfing.
• it will be difficult for him to re-train, given his educational limitations and pre-existing concentration problem;
• in his mid-thirties, with his friends settling down, he too was likely to have settled to more steady and regular labouring work, although not necessarily staying with one employer;
• he has reasonably good prospects of finding at least part-time work, possibly in surfboard shaping, retail, factory or call centre work;
• he has a likeable and engaging personality and may well be able to find work through friends, but in any event he would have some appeal to employers more generally.

For past economic loss, the trial judge allowed a midpoint between the plaintiff’s average earnings in the 14 weeks with this employer and what he earned in the previous years, which incorporated periods of unemployment when he was his mother’s carer or because he was overseas.

For future loss of earning capacity, the court concluded that in the absence of the injury, the plaintiff could have earned $900 net per week to age 67 (which is the mid-point between his average earnings with the employer and minimum salaries currently paid by a colleague to concrete pumping linesmen).  He has been left with a residual earning capacity of $250 net per week. From this amount, 25% was deducted for the prospect that his degenerative lumbosacral condition would have brought a halt to any labouring career and the possibility, given his history, that he would once again have dropped out of the workforce for a year or more at a time to continue travelling.

As a result, and taking into account 10% reduction for contributory negligence, the court gave judgment for $482,696.99 clear of the refund.

Discussion / Implications

The judgement:

• reinforces the significance of the trial judge’s assessment of the plaintiff in projecting what may have occurred in the future;
• demonstrates that courts are willing to make findings of contributory negligence against a plaintiff for disregarding an obvious risk and failing to take reasonable care for their own safety;
• shows even with a spasmodic work history, conclusions may still be drawn from the evidence that a plaintiff’s earnings were likely to have improved in the absence of the subject injuries;
• demonstrates how discounting may be applied to address the uncertainty resulting from past history and unrelated medical conditions.