Longbottom v L & R Collins Pty Ltd [2021] QSC 242
A recent decision of Supreme Court of Queensland highlights the importance for employees to ensure they take reasonable care for their own safety when attending to tasks ordinarily associated with risk.
Background
The plaintiff, Mr Longbottom, was employed as banana harvester on the defendant’s farm near Cooktown. On 20 June 2016, the plaintiff was working as a banana “humper”; the person responsible for catching the banana bunch. At the same time, the plaintiff’s co-worker was working as the “cutter”; the person responsible for making a small incision into the banana tree, allowing the tree to gradually bend in the direction of the humper. Unfortunately, instead of making a small incision, the plaintiff’s co-worker made a large incision causing the bunch and the top of the tree to collapse onto the plaintiff and resulting in him sustaining personal injuries.
Liability
The defendant alleged that the plaintiff was guilty of contributory negligence in either:
- grasping and pulling the bunch immediately, after an incision was made in the tree, so that the bunch fell before he could properly manoeuvre it onto his shoulder; or
- he failed to stand clear of the banana bunch to be collected while the cutter made the incision in the tree
Conversely, the plaintiff contended that it was his co-worker’s action, as the “cutter”, in making a large incision as opposed to a small incision which caused the tree to collapse.
The defendant called the plaintiff’s supervisor, Mr Aiaraisa, as a witness to comment on the system of work in which the workers were instructed. He stated that if the banana bunch was too high, the cutter would make a small cut closer to the top of the tree, while ensuring no one was underneath it, to allow the tree to come down slowly and the humper to be able to reach the bunch and line it up with his shoulders before it was cut from the tree.
Despite testifying in relation to the system of work, Mr Aiaraisa had no recollection of having given the plaintiff any instruction or having corrected his technique. However, the plaintiff admitted that at least for average sized trees, he was instructed to stand clear of the bunch while the cutter made the cut. Nevertheless, he maintained that he had not be taught to stand back while small cuts were made, in circumstances where he could not reach a large heavy bunch. The plaintiff also conceded that he knew there was a risk of injury if the cut was not made properly.
In holding the defendant liable for the plaintiff’s injuries, the Court was satisfied that that the plaintiff was paired with cutter who, through lack of training or skill, made too deep a cut in the banana tree, causing it to fall immediately, and without warning.
However, the Court also considered that ordinary prudence would indicate the danger of not standing back and keeping a look out when the first cut was made to a larger tree. in failing to stand back, the plaintiff disregarded an obvious risk and failed to take reasonable care for his own safety.
Nonetheless, the Court still recognised that the accident was still primarily due to the negligence of the cutter, who made the cut with such force that both tree and bunch suddenly fell and accordingly assessed contributory negligence at 10%.
Compensation
The main issues associated with quantum concerned the awards for Past and Future Economic Loss.
Past Loss Wages
The Court concluded that the plaintiff’s claim for past wages should be based at the midpoint ($500.00) between the amount he actually averaged from the defendant during his employment ($622.00 net /wk) and the average of his earnings over the previous two years prior to his employment with the defendant ($401.00 nett/wk).
The Court made an allowance for the prospect that the plaintiff would have continued in the employment of the type he found in 2016 with the defendant, which paid a better rate. Further, the Court determined that as these amounts were averages, no further discounted needed to be applied. Accordingly, the Court awarded $137,500.00 for past economic loss.
Mitigation
Interestingly, no reduction was made by the Court for the plaintiff’s failure to mitigate his loss of wages in failing to source alternative employment. While the defendants did not contest this issue, the Court noted that the reason for the plaintiff’s failure to mitigate was that any return-to-work programme would have been conducted by WorkCover in Queensland and he was not willing to relocate. Accordingly, past economic loss was award for the 275 weeks since the date of incident.
Future Loss Wages
The Court held that there was no doubt the plaintiff’s injuries would affect his ability to undertake heavy physical work which was his primary source of income in the past. Despite the plaintiff’s work history being spasmodic, the Court considered that by now (the plaintiff is in his mid 30’s) and his friends settling down, he would have more steady and regular labour work although not necessarily with the same employer. Accordingly, the Court consider the plaintiff’s earnings in the years prior to the accident to be less reliable guide as to his future income.
As such, the Court proceed on the basis that the award should be based on difference between the amount the plaintiff averaged in the defendants employ ($622.00 net/wk) and the lower end of the range, the plaintiff’s friend, Mr Reitano, paid concrete pumping linesman ($1,220.00 net/wk). Accordingly, the Court adopted a figure of $900.00 net/wk.
In relation to the plaintiff’s residual earning capacity, the Court considered the plaintiff had reasonably good prospects of finding at least part-time work, in retail, factory or call centre work and accepted the evidence of the plaintiff’s counsel that his residual earning capacity of $250.00 net/wk.
The Court then discounted the plaintiff loss by 25% on the basis that of the plaintiff pre-existing lower back condition and that given his employment history, the plaintiff would have dropped out of the workforce for a year or more at a time. Accordingly, the Court award a loss of $650.00 net/wk, arriving at a figure of $411,937.50.