The Supreme Court of Queensland found an employer liable for the loss and damage suffered by a worker who sustained injuries when the top of a banana tree fell on him, but reduced his damages by 10% for contributory negligence, for failing to act reasonably to avoid the obvious risk of being hit by a falling banana bunch harvested by his co-worker.
- Whether the employer was liable and, if so, whether the plaintiff worker contributed to his own injuries; and
- The plaintiff’s residual earning capacity.
On 20 June 2016, the plaintiff was injured during the course of his employment while he was harvesting bananas with a co-worker at the employer’s farm. The plaintiff was working as the ‘humper’, the person required to catch the banana bunch. The co-worker was working as the ‘cutter’, the person responsible for collapsing the banana bunch.
The plaintiff sustained a right hip, right shoulder and secondary psychological injury when the co-worker made an incorrect incision at the top of the banana tree. Instead of gradually bending, it caused the top of the banana tree to fall onto the plaintiff.
The plaintiff alleged negligence against the employer on the basis that it had failed to safely train the co-worker in the correct method of harvesting bananas from taller than usual trees.
The employer alleged that the plaintiff had been trained to stand away from the banana tree during harvesting. The employer further alleged that the plaintiff was guilty of contributory negligence for failing to follow his training by not standing clear of the banana tree when the co-worker made the incision.
The Court awarded judgment in favour of the plaintiff in the sum of $482,696.99.
The Court found that the employer had paired the plaintiff with a ‘cutter’ who lacked the necessary training or skill. As such, the co-worker made an incision far too deep into the banana tree, which caused it to fall, instead of gradually bending, onto the plaintiff.
Holmes CJ considered that the risk of injury, when care was not taken in cutting banana trees, was foreseeable and significant, and that a reasonable employer would have guarded against it.
In respect of contributory negligence the Court found no evidence that specific instructions had been provided to the plaintiff about harvesting larger banana trees. However, the Court found that the plaintiff had disregarded a risk that ought to have been apparent. As such, he had failed to take reasonable care for his safety. The Court assessed contributory negligence of 10%.
Concerning quantum (primarily economic loss), the Court concluded that the plaintiff (1) could no longer perform heavy physical labour (2) had a sporadic and interrupted work history (3) would have difficulties re-training, given his labour-focussed skillset (4) would likely have settled down with steady labouring work but for the incident (4) would have reasonable prospects in finding part-time work (5) would likely be able to find work through friends and other employers and (6) had a pre-existing degenerative lower back condition. Accordingly, the Court applied a 25% discount to the plaintiff’s future economic loss.
Implications for you
Even where an employer cannot establish that it gave specific instructions to a worker regarding safety, a Court may still find contributory negligence where a risk of injury is obvious or prudence dictates the taking of steps by a worker, acting reasonably for their own safety.