Workers compensation payout for shoulder, hip and psychiatric injury

Longbottom v L & R Collins Pty Ltd [2021] QSC 242

Facts

The Plaintiff was employed by the Defendant to harvest banana bunches. The process of harvesting banana bunches involves two persons: the ‘cutter’ and the ‘humper’.  The Plaintiff was a humper. The cutter makes a small cut in the banana tree which causes the tree to bend, and the bunch to lower gradually for harvesting. The humper grasps the bunch and ensures it does not drop to the floor, which would cause bruising to the bananas.

Banana tree stems have thin skin and soft, fleshy, watery matter within. The stems snap when incisions made are too large, so small incisions to the stems were required.

On 20 June 2016, the Plaintiff suffered a personal injury while working for the Defendant. A large delivery was due, and workers from the Defendant’s other farms were used to complete the harvesting process. The Plaintiff was unfamiliar with his cutter partner. The pair were harvesting a banana bunch from an unusually tall tree, a process which the Plaintiff was not used to. The Plaintiff was positioned under a large bunch and he estimated the weight of heavier bunches to be 70kg.

A large incision was made by the cutter to a banana tree stem which caused the bunch to fall suddenly. The Plaintiff caught the bunch on his right shoulder and fell to the ground on his right side. He suffered from various injuries.

Liability and Contributory Negligence

An employer owes employees a duty of care to ensure that their workplace is safe; employees should be safeguarded against foreseeable injuries. The Plaintiff pleaded that the Defendant was negligent in failing to train staff in properly cutting banana trees for harvesting. Small cuts should have been used.

The Defendant argued that the Plaintiff failed to properly perform his role as per his training. Banana bunches should be grasped and brought onto the shoulders of the humper where possible. Since the tree was unusually tall, the Defendant said the humper should have stayed clear of the tree until the selected stem was cut. In doing so, the Plaintiff should have focused on the cutter and not on catching the bunch before it was safe to do so. The Defendant submitted that a finding of contributory negligence should be made against the Plaintiff of 20%.

The Plaintiff denied being taught to stand back while the stem was cut and watch the cutter. However, he knew there had been some ‘close calls’ where banana trees tumbled down quickly and that banana bunches could also fall with them.

The judge held that standing in the way of a banana tree and its clearing when it was being cut was an obvious risk and as such the damaged awarded were reduced by 10%. Although the risk was obvious, the Plaintiff’s supervisor had no recollection of instructing the plaintiff how to perform his job nor had corrected his technique. Therefore, the Defendant’s submission that the Plaintiff’s award of damages be reduced by 20% because of contributory negligence was rejected.

Quantum

The Plaintiff was injured at 30 and, at the time of the proceedings, was 35. He was educated to Year 10 and his work history was comprised largely of manual/heavy manual roles and seasonal work.

In the three (3) years prior to his injury, the Plaintiff had a history of psychological symptoms including alcohol abuse and suicidal ideation related to a relationship breakdown.

As a result of the accident, the Plaintiff sustained the following injuries:

  • labral tear to his right hip
  • slap tear to his right shoulder, requiring a rotator cuff repair and ligament reconstruction
  • a frozen shoulder subsequent to his surgery
  • Major Depressive Disorder with anxiety features or anxiety disorder

Both parties’ expert orthopaedic evidence was to the effect that the Plaintiff was no longer fit for labouring work. Orthopaedic Surgeon, Dr Morgan considered the Plaintiff could be retrained to take up work as a machine operator, taxi driver, storeman, data entry operator, or shop assistant. Dr Bertucen, Psychiatrist, expressed a view that the Plaintiff’s depression and concentration issues would present some limitations, but Dr Duke opined that it would be beneficial for his mental health to return to work and that he did not have any psychological limitations on his capacity to work.

The Honourable Chief Justice Holmes accepted evidence that the Plaintiff’s degenerative back condition would have impacted his ability to work as a labourer in the future in the absence of his other injuries. With respect to the Plaintiff’s pre-existing psychological symptoms, the Court found that they were of no lasting consequence in relation to his current psychiatric condition and that the Plaintiff was able to minimise his alcohol consumption when he was fit and happy.

Holmes CJ thought it likely that, due to his age, the Plaintiff would have eventually stopped travelling and settled down. Her Honour gave weight to evidence that his friend was happy to hire him as a concrete pumping linesman and that the Plaintiff was a likeable and engaging person who she considered was likely to obtain employment through friends, and other employers more generally. Although the Plaintiff’s residual earning capacity was difficult to assess given the fact that he had not secured employment for 5 years, Her Honour thought it was likely he could secure part-time employment. Her Honour thought he may obtain work as a surfboard shaper, or in another job he was not passionate about such as in retail, a factory or call centre. His residual earning capacity was assessed at $250 a week.

Her Honour found the Plaintiff to have a net ongoing loss of $650 per week, taking into consideration his residual earning capacity and his probable earning capacity but for the accident. Her Honour suggested a realistic retirement age for the Plaintiff was 67 years.

Future economic loss was discounted due to his lower back condition, as well as the fact that the Plaintiff historically remained unemployed for long periods at a time, with a 25% deduction for contingencies allowed.

Total award for damages

The Plaintiff’s damages were assessed at $759,033, with $411,000 allowed for future economic loss.  After the workers’ compensation benefits were taken into account ($200,000) and a deduction for contributory negligence was applied (10%) the Plaintiff was awarded $482,696. The Court will hear the parties as to costs.