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The Banana Bunch - a lack of precision with incisions

07 October 2021

The case of Longbottom v L & R Collins Pty Ltd [2021] QSC 242, a recent decision in the Cairns Supreme Court by Homes CJ, illustrates the onerous obligation for employers to instruct and train.

Longbottom v L & R Collins Pty Ltd [2021] QSC 242 illustrates that employers must be aware of additional risks where there are changing dynamics in a task. While an employer may enforce a safe system of work for a specific task, variations to the task, or failure to anticipate variations in the task may result in the system being deemed inadequate. 

The Plaintiff was working as part of a banana harvesting operation on a farm near Cooktown. The Plaintiff's role was to catch the banana bunches after they were cut down by another worker. The incident involved the cutter making a large incision into a banana tree, which instead of allowing the bunch to bend gradually in the Plaintiff's direction, caused the top of the tree, with the bunch, to collapse onto the Plaintiff. The Plaintiff subsequently sustained injury to his right shoulder, right hip, neck and back.

Negligence was alleged against the Employer primarily on the grounds that it failed to train the cutter and/or the Plaintiff in a safe method of harvesting larger than usual bunches of bananas from taller than usual trees. The Defendant pleaded that the Plaintiff had been trained andthat his instructions when harvesting were to stand clear of the bunch to be harvested, watch the cutter make an initial cut, approach the bunch and lower onto the shoulder, then instruct the cutter to make the final cut. A similar process was adopted for taller trees.

The Defendant alleged contributory negligence on the part of the Plaintiff on the basis that he had either grasped and pulled the bunch immediately following the initial cut, so that the bunch fell before he could position it onto his shoulder and instead took the weight of the bunch and part of the tree attached to the bunch; or in failing to stand clear of the bunch and tree while the initial cut was made. The Plaintiff denied pulling at the bunch, which he said he could not reach, and maintained that it was the cutter’s action in making a large, rather than a small, incision which caused the tree and the bunch to collapse on him.

The Court was satisfied that the Plaintiff had been paired with a cutter who, through lack of training or lack of skill, made a far too deep a cut in the banana tree, causing it to fall immediately and without warning. Holmes CJ considered that the risk of being injured in this way if care was not taken in cutting the tree was foreseeable and significant, and that a reasonable employer would have guarded against it.

The Court established breach on the basis that there was no evidence of specific instructions provided to the Plaintiff in relation to harvesting larger trees. However, that in failing to keep clear while the first cut was made, the Plaintiff disregarded an obvious risk and failed to take reasonable care for his own safety. Subsequently, the Court made a finding of 10% for contributory negligence.

The major point of contention on quantum was economic loss. It was decided that following the injury, the Plaintiff had an approximate 72% loss of earning capacity due to ongoing psychological and physical incapacities, which required him to retrain into sedentary employer, and be subject to disadvantage in the open labour market due to the stigma of injury and him having a primarily manual labouring work history.

A 25% discount was applied to future economic loss due to both a previous symptomatic back condition, and the Plaintiff's work history that demonstrated contentedness in being absent from full-time work for long periods of time.

Ultimately judgement was awarded for the Plaintiff due to the Defendant's failure to take precautions and warn the Plaintiff of the risk of injury. Quantum was significant at a total of $759,033.69 gross less 10%.

If you require further information or have any queries in relation to this legal update, please contact Hamish Broadbent.

We would like to acknowledge the contribution of Joshua Nash (Solicitor) to this article.

Further Reading