Longbottom v L & R Collins

*The contents in this blog relates to legislation in Queensland.

Recently, Kylie Walmsley of our Cairns Office successfully saw a claim through to trial. On 28 September 2021, at the Supreme Court in Cairns, Chief Justice Holmes handed down a judgement in favour of the plaintiff in Longbottom v L & R Collins [2021] QSC 242.

The banana case

Mr Longbottom (the plaintiff), was injured while humping bananas in Lakeland, an agricultural region south-west of Cooktown. Far North Queensland banana farm workers are generally transient with a mix of backpackers; Australian’s on working holiday and some locals.

Harvesting bananas or humping, is a labourious task which comprises one person; a cutter, making a cut in the tree near the bunch to allow the tree to bend so that the bananas can be manoeuvred into a position where it is easier for the humper to catch. The humper grabs the bottom of the bunch and pulls the bunch of bananas so as to position it on their shoulder.  The humper signals the cutter when they are ready to catch the full weight of the bunch. The cutter cuts the banana bunch free of the tree releasing the full weight of the bananas onto the humper’s shoulder, the aim being to harvest the bananas without dropping or damaging them.

Background

Mr Longbottom grew up in Sydney where he completed grade 10 in 2001, although he was not academically inclined. He became an apprentice plumber and although he was capable of the physical aspects of the apprenticeship, he was not able to fulfil the TAFE requirements to qualify as a plumber.

Between 2004 and 2008, Mr Longbottom worked in labouring roles for various employers, then in around June 2008, he travelled to Europe for four months. On the plaintiff’s return to Sydney, he assumed a routine of working in labouring roles and surfing on his days off.

Between late November 2011 and mid-September 2014, Mr Longbottom cared for his mother who had sustained a significant back injury and received a carer’s pension. When his mother terminated this arrangement, he worked as a concrete pump boom operator; rubbish truck runner and a general labourer.

In December 2015, Mr Longbottom travelled to Japan where he spent three months snow-boarding and assisting a friend who ran classes. On 12 March 2016, shortly after his return to Australia, the plaintiff started working for L & R Collins in Lakeland (the defendant).

Injury

As at 20 June 2016 (the date of the injury), Mr Longbottom had worked for the defendant for approximately three months.

On the day of the injury he was working with a cutter from one of the defendant’s other farms that he did not know, to cut down a bunch of bananas from a particularly tall tree.

At six feet, two inches tall, Mr Longbottom could not reach the bottom of the bunch prior to a cut in the tree being made. Mr Longbottom allowed the cutter to use his freshly sharpened cane knife. He was concentrating on the bunch and not watching the cutter who made a larger than necessary incision in the tree causing the top of the tree to fall onto Mr Longbottom’s shoulder with the bunch of bananas knocking him to ground injuring his right shoulder and right hip.

Liability

Liability was an issue raised at trial with Mr Longbottom arguing that his employer had failed to properly train him and the banana cutter to harvest bananas from taller trees. The defendant argued that there was contributory negligence by Mr Longbottom who had failed to stand clear of the tree while the cut was being made, or otherwise handled the bunch wrong in manoeuvring it onto his shoulder. Mr Longbottom contended that the workers were trained in harvesting small and average sized trees and that the cutter had made an unnecessarily large incision in the tree.

Her Honour found that the tree fell on Mr Longbottom as a result of the cutter’s negligence in overzealously cutting the tree which would likely have fallen on the plaintiff whether he was standing under the bunch or not. Her Honour further found that the plaintiff’s contribution to the negligence was to the extent of 10%.

Quantum

General damages and past special damages were not in contention. Past economic loss and future economic loss were.

Past economic loss

Mr Longbottom claimed past economic loss at $701 per week for the 275 weeks since the date of the accident. This figure was calculated on the basis of the amount that he was earning at the time of the accident; the likelihood that he would have travelled overseas every three years for three months; and was capable of earning similar amounts from other employers as a labourer.

The defendant argued that based on the plaintiff’s earnings in the three years prior to the accident, his past economic loss was closer to $300 per week which is the average of Mr Longbottom’s weekly earnings for the 2014, 2015 and 2016 financial years.

Her Honour assessed past economic loss as $500 per week balancing the defendant’s pleadings regarding past economic loss and the plaintiff’s submissions that he would have continued working for the defendant had the injury not occurred.

Future economic loss

The plaintiff has not worked since the accident.

Her Honour found that although the plaintiff’s work history prior to the injury was “spasmodic”, she considered that it is likely that had the injury not happened, he would have settled down by now as he is now in his mid thirties. Based on the amounts earned by the plaintiff while working for the defendant and the salary he would have been able to earn as a concrete linesman with a previous employer, Her Honour adopted a figure of $900 per week that Mr Longbottom would have been able to earn if not encumbered by injury. The plaintiff’s claim of a residual earning capacity of $250 per week was also accepted by Her Honour resulting in a weekly loss of $650 per week to retirement age of 67. Future economic loss was heavily discounted to account for evidence given that the plaintiff was personable and therefore liked by employers; his degenerative back condition and his history of a transient, wanderlust lifestyle.

Discussion

The significance of this decision is that in calculating future economic loss, Her Honour gave significant weight to factors other than historical earnings. Last year in Peebles v WorkCover Queensland,[1] Jackson J acknowledged the difficulties in calculating future economic loss at [141]:

“Overall, the plaintiff bears the onus of proof on the issue of damages. But the question should be considered, having regard to the obvious difficulties of such a hypothetical assessment and the attendant complexities raised by the evidence. The court is required to assess these assumptions and complexities as best it can.”

In the appeal decision, McMurdo JA noted at [26] that it was interesting that different figures had been used for past and future economic loss; particularly as the figure used for past economic loss had sufficient evidentiary basis and therefore ought to have been applied for future economic loss.[2] Future economic loss had been discounted by 50% which was the main issue raised in the appeal. Findings were in favour of the plaintiff with the judgement being recalculated applying the amount calculated for past economic loss to future economic loss; the discount being reworked consequently increasing the plaintiff’s damages award by over $200,000.

In Longbottom, her Honour considered his former employer’s evidence as to his capabilities and his potential earnings as a concrete boomer; his capabilities with respect to physical labouring jobs and inferred that in all likelihood he would have started to settle down over time into a less irregular work pattern. This was balanced with the plaintiff’s lack of history working on a full-time basis, his sporadic work history and his desire to travel and surf. These considerations were reflected in Her Honour’s calculations which although based on his past economic loss, were calculated independently and with regard to his wider circumstances.

Longbotttom v L & R Collins represents an important precedent with regard to the calculation of future economic loss. Consequently, the opportunity to introduce evidence as to the plaintiff’s potential future economic loss is now on offer in claiming damages. As always, submissions as to future economic loss need to be connected to the plaintiff’s circumstances enough that it is probable that the evidence produced speaks to likely future economic loss – not a remote chance of future economic loss.

[1] Peebles v Work Cover Queensland [2020] QSC 106

[2] Peebles v WorkCover Queensland [2021] QCA 21