Banana peels have long been considered an obvious risk, but in Longbottom v L & R Collins Pty Ltd [2021] QSC 242 the Supreme Court considered whether a banana harvester disregarded an obvious risk of injury by standing beneath an unusually tall banana tree whilst an unusually heavy bunch of bananas was being harvested. The court found that the risk of injury was obvious, and the worker was contributorily negligent in accordance section 305H of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
The facts
The plaintiff, Mr Longbottom, was employed as a banana harvester on the defendant’s farm. On 20 June 2016, Mr Longbottom was working as a humper, the person required to catch the banana bunch, and was standing underneath a large banana tree. At the same time, another employee (the cutter) was to make a small incision in the tree close to the banana bunch, intending for the bunch to bend slowly in Mr Longbottom’s direction. Instead, the cutter made a deep incision, causing the bunch and the top of the tree to collapse onto Mr Longbottom who sustained injuries from the impact.
The defendant alleged that Mr Longbottom was guilty of contributory negligence in failing to stand clear of the bunch and the tree whilst the incision was being made. Mr Longbottom contended that the cutter was inexperienced and negligent in making a large, rather than a small, incision which caused the tree to collapse.
Mr Longbottom’s supervisor on the relevant day, Mr Aiaraisa, was called by the defendant to give evidence of the system of work. He stated that when harvesting a banana bunch that is too high for the humper to reach, the cutter should make a small cut to the top of the tree close to the banana bunch, whilst the humper stands away from the tree and the descending bunch. Once the tree has bent low enough to be in reach, the humper would pull the bunch into position on their shoulder and instruct the cutter to sever the bunch from the tree.
Although Mr Aiaraisa testified that this was the system of work, he had no recollection of giving these specific instructions to Mr Longbottom or correcting his technique. However, Mr Longbottom admitted that, at least for average sized trees, he was instructed to stand clear of the bunch while the cutter made the first cut. Despite that admission, under cross-examination, he denied being taught to stand back and watch the cutter when harvesting larger trees.
The decision
In finding the Defendant liable for Mr Longbottom’s injuries, the Supreme Court noted it was satisfied that the cutter, due to lack of training or skill, made a cut that was too deep which caused the tree to collapse onto Mr Longbottom.
In considering the issue of contributory negligence, the court acknowledged that there was no evidence of the specific instructions given to Mr Longbottom in relation to harvesting larger trees. Nonetheless, the court considered that Mr Longbottom disregarded an obvious risk of injury by standing below a very tall tree bearing a large bunch of bananas (estimated to weight 70kg) and not keeping a lookout from a distance whilst the first cut was made. As such, Mr Longbottom failed to take reasonable care for his own safety and was found contributorily negligent.
Still, the court recognised that the accident was primarily due to the negligence of the cutter and assessed the contribution of Mr Longbottom’s negligence at 10%.
Takeaway points
In circumstances where an employer is unable to establish that specific instructions were given to an employee regarding safe work procedure, a court may be prepared to make a finding of contributory negligence where there is a very obvious risk of injury.
Nonetheless, best practice for employers is to keep a record of the training and instruction provided to workers regarding safe work procedures. This will ensure that, in the event of an injury, there is evidence that an employee departed from that procedure and will assist the court in determining that the employee is contributorily negligent.